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Proportionality and stay of eviction


One of the questions posed as a result of Hounslow LBC v Powell [2011] UKSC 8 [our report here] is what happens if a proportionality argument is raised after a possession order has been made, but before eviction.

Powell found that s.89 Housing Act 1980, which limits the time for a stay of possession order to a maximum of 6 weeks, was compatible with Article 8. So, once a possession order has been made, does the court have any discretion to revisit or extend a period of stay beyond 6 weeks?

Ngesa v Crawley BC [2011] EWCA Civ 1291 [Not on Bailii yet] addresses this issue, though perhaps not in a very satisfactory manner. It was a Court of Appeal permission hearing in front of Rimer LJ. I believe that the appellant was not represented and, as we’ll see, the facts are hardly attractive, but nonetheless, the Court’s view is clear.

Ms N was an unsuccessful asylum-seeker. She had applied to Crawley as homeless under a false name and provided a non-secure tenancy as temporary accommodation. A notice to quit was served after she fell into rent arrears. Crawley sought possession. No defence was filed and no article 8 point raised. Crawley were granted a possession order stayed for 28 days. After the 28 days, Crawley obtained a warrant.

Ms N applied to stay the warrant and another DJ granted a stay. Crawley appealed. They had by now discovered Ms N had applied under a false name. They also relied on s.89 Housing Act 1980 as imposing an absolute limit of 6 weeks delay in executing an order. The appeal was allowed and leave to re-issue the warrant given.

Ms N sought permission to appeal out of time. She argued that the Circuit Judge on first appeal ought to have applied article 8 of his own motion and to have adjourned to get a fuller picture of the facts.

Permission to appeal was refused. Rimer LJ held that in the absence of any defence, the first DDJ had no alternative but to grant possession. The granting of a possession order circumscribed the Court’s subsequent powers by operation of s.89 HA 1980. As the Supreme Court in Powell had found s.89 to be compatible with article 8, there was no basis for a challenge to the operation of s.89.

As we noted at the time, the decision on s.89 in Powell was a major restriction on the discretion of the Court suggested in Pinnock, and indeed seemed to go against Pinnock in that regard. The effect, at least as set out in this case, is that a proportionality defence has to be raised in the possession proceedings before an order is made. While it may be possible in some circumstances to seek a set aside of a possession order (under CPR 39.3 or indeed CPR 3.1), that will not always be so. If the strictly obiter statements in Powell stand, that will be the end of the matter, no matter what the Court’s view might be on the proportionality of an eviction once the circumstances have been raised in a stay application.

Hat-tip to January’s Legal Action ‘Recent Developments in Housing Law’ for news of this case.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. XF

    Apologies if this comes over as a bit dim, but wasn’t it ever thus that the Court wouldn’t entertain a defence on public law or any other grounds that was only raised at the bailiff’s warrant stage, unless the possession order could be set aside somehow?

    I had one a while back where the tenant had an AST with a Housing Association as local authority temporary accommodation and he was served s. 21 and possession proceedings because of spiralling rent arrears and the Judge flatly refused to hear any argument that pursuing the eviction was unreasonable because that should have been raised before the possession order was made. She therefore said that his only option was to apply to set aside the possession order somehow, which we did at that hearing and failed (because she didn’t consider the public law defence we said he had was arguable.)

  2. S

    With public law defences there was an argument that once the possession order has been made the court can’t interfere anymore because the warrant is merely a procuedural act.

    I’m not sure that withstands what the Court of Appeal said in Taylor (i.e. you can challenge the lawfullness of every step along the way and not just the notice to quit).

    However, I am not sure you’d get round the s.89 point after what the Supreme Court said in Powell.

    Article 8 is slightly different because I still think there will be a set of facts that leads a court to declare s.89 incompatible with Art.8 (e.g. possession order is made and in the period between possession order and eviction date the personal circumstances of the occupier change significantly to render the eviction disproportionate).


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