Proportionality, Art. 8 and Monk

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.

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.
Posted in Housing law - All, Possession and tagged , .

4 Comments

  1. It will be very interesting once this point finally makes its way to the Court of Appeal.

    I really can’t see how it can be proportionate to seek possession from someone who has occupied a property as a tenant for a period of time, has lost that tenancy through absolutely no fault of their own (c.f. with the domestic violence situations where wife serves ntq) and the authority have no reason to recover possession other than to allocate it to someone else. Why should a sole tenant be a more “secure” tenant than a joint tenant?

  2. I was tickled by the fact that the council officer, who assisted Mr B, wrote on the NTQ “McGrady” . I am glad to see that the memory of LB Greenwich v McGrady (1982), the first big joint tenancy case, is not forgotten!!
    Also I agree with S but surely you would die for facts like these in favour of Mrs B. As I read the judgment I increasingly wondered why on earth the council took possession action.
    The big question is: what about article 8 defences where the facts are somewhat less auspicious?

  3. I wholly agree with this judgement for it’s balanced and proportionate approach to ruling (I would say that wouldn’t I..) , as well as sound policy reasons. In particular, for two principal grounds:

    1 [removed by NL]

    2 The court found on the facts that Article 8 (right to family home) was triggered and could not be justified, nor proportionate to oust her of her family home (for which had spend a great deal of time and effort in building which) particularly where she was not at fault.

    Notwithstanding, this the case merits a review by councils to consider the granting of ‘unnecessary’ tenancies where in the instant case this was specifically requested. Failure has caused considerable mess and uncertainty. Council’s need to make clear the terms of a tenancy and any changes, so both parties understand the implications and their respective rights.

    More over, the issue of discretionary tenancies need to be clearly formulated with a preference or presumption of a tenancy in relation to succession rights when considering all the facts and circumstances of a particular tenant.

    • Frednach

      I’ve removed your suggestions about the husband’s motives, as these were speculative and are not set out in the judgment. From the judgment it appears the husband was invited to end the tenancy by the Council who told him he would otherwise be liable for rent arrears.

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