Chesterfield BC v Bailey is a highly instructive case heard at first instance by Recorder Tilbury in the Derby County Court. We thank Philip Barber of Zenith Chambers for providing us with a transcript of the judgment. The Defence was run by Chesterfield Law Centre. [Now on Bailii [2011] EW Misc 18 (CC) ]

The case deals with the issue of termination of joint tenancies via a notice to quit under the rule in Hammersmith v Monk and the proportionality/lawfulness of possession proceedings within Article 8 ECHR.

JB had been the secure tenant of her 3 bedroom council property since 2002 and her sole tenancy became a joint tenancy after she married her husband, RB. The parties separated in 2005, leaving JB and her two children in occupation of the property. Several years later, RB received a communication from the council regarding rent arrears for the property he was no longer occupying. Following discussion with the council and reassurances that he would not thereafter be liable for rent arrears, RB served a notice to quit to end the tenancy, which was meant to end on 4th October 2010. The council commenced possession proceedings against JB and the case came before the judge on 12th October 2011.

The initial point to be made is that the judge’s comments on the proportionality of the eviction are only obiter, as the possession proceedings were dismissed for want of a lawful notice to quit: the tenancy agreement required 4 weeks but only 3 weeks and 6 1/2 days were provided. Nevertheless, the judge gave lengthy reasons why eviction, notwithstanding the notice issue, would have been disproportionate.

Firstly, in advancing a Gateway B defence, JB referred to a section of the council’s policy, which permitted a further discretionary tenancy to previous tenants who had a 15 year tenancy record. JB argued that this time limit was irrational and did not provide any flexibility for those who were otherwise good and deserving tenants. The judge did not accept that the policy was irrational but agreed that a policy allowing tenants to have their tenancies restored was relevant to proportionality. The judge concluded:

In looking at whether it was necessary in a democratic society to apply for possession and whether it was a proportionate means of achieving a legitimate aim, I have to accept that the council was in a strict sense legally entitled to do so, and that they were not motivated by bad faith and were simply pursuing the goal of satisfying the needs of those on their housing list. I am not satisfied however that their decision to seek possession was however either necessary in a democratic society or proportionate in the circumstances of this case. This defendant had lived in this property since 2002, had lived in a previous council property since 1996, and had moved from that property mainly at the behest of the council. Had she not moved and remained in her previous property she would be secure under the 15 year rule. She has spent money on this property and any move involves further expenditure of money. In a case such as where her husband had given the present notice in circumstances where she could do nothing about it (and did not even have notice of it until either it had taken effect or possibly very shortly before) I do not find it reasonable for the council without more to rely on that notice. Where a tenant is without blame it seems to me that the council should look and see whether otherwise they might be entitled to obtain possession. If they have grounds within the statutory regime then it is quite right that they should do so, and any challenge to their rights on article 8 grounds in my view will be met by their rights following the notice to quit, as well as the statutory grounds entitling them to possession. Where there are no statutory grounds available to them (as here), and where there is no fault on the part of the defendant, and the defendant had previously had and enjoyed security of tenure without complaint, an order for possession would in my view breach  the defendant’s article 8 rights.

Comment: the above paragraph is particularly interesting as it demonstrates the interface between the council’s right to take possession for the proper management of its housing stock (as established in Pinnock, Powell etc)  and policy documents giving a stake in the management of that stock to people in the Defendant’s position. One suspects that had it not been for the 15 year rule, the Claimant’s arguments would have been more potent and decisive. Although the proportionality aspect of the decision is obiter, it underlines the importance of using policy documents to one’s advantage when proportionality/Gateway B arguments need to be raised.

Finally, it should be added that the judge declined to find that the Hammersmith v Monk rule was not compliant with Art. 8. That will have to wait for another case.