London Borough of Southwark v Hyacienth 22.12.2011 is that incredibly rare, beautiful thing: a successful gateway (b) defence to a mandatory possession claim in relation to an introductory tenancy. At least, I think it is: unfortunately, it’s not clear whether it is a successful proportionality defence, and the circuit judge (who shall remain nameless as a result) also confuses gateway (a) and (b). [The relationship between proportionality and gateway (b) seems to me to be an interesting question and one which I’ve had a bit of a battle with an anonymous academic reviewer about, but that’s another story]. But, so what; and thanks to David Thomas, Ms Hyacienth’s solicitor, for forwarding on this frail electronic text and clearly did a wonderful job for her, very much against the odds as will appear.
In essence, what happened was that Ms Hyacienth, a single mother with two young children, took an introductory tenancy of a Soutwark property in June 2008. Housing benefit clawed back an overpayment, which gave rise to rent arrears. She also had a load of other debts with the bailiffs knocking at her door, taking furniture. Southwark have a policy for early intervention, assessment of vulnerability, provision of advice and benefits/debts/budgeting. They also have a policy that agreements for rent arrears should only be made during the first six months of an IT, and there should be a six month arrear free period before the 12 month duration of the IT expires. Arrears not surprisingly arose quite early on and Southwark did make efforts to contact Ms Hyacienth but to no avail. Then in December, there was contact and this was, as the HHJ put it, “the pivotal moment”. She made promises as to payment of the arrears, the HB clawback was identified as a problem, and she was having real problems managing her finances and making promises. She’s told (inaccurately, by my calculation) in early December that as the tenancy was more than six months in, Southwark wouldn’t make an agreement; then, later that month, they do make an agreement for the arrears to be cleared by 04 January; but she calls back the same day to say that she won’t be able to do so, to be told that she must do so. After that period there was nothing.
Southwark then run through the numbers to end the tenancy – they served notice on 06 March; a review is carried out which confirms the decision to proceed; the claim is issued; and on 25 September, the District Judge makes a possession order at a hearing at which Ms Hyacienth attends unrepresented. She does not raise an Article 8 defence – proportionality – or gateway (b) defence at this hearing (not surprisingly). She then circuitously arrived at Mr Thomas’ door.
From these unpropitious facts, Mr Thomas and her counsel, Alice Hilken, constructed the successful gateway (b)/proportionality defence. Quite how they did so successfully, I’m still not sure. They also managed to get the possession claim dismissed leaving Ms Hyacienth a secure tenant.
Well, I do kind of know how they did so. Basically, it is absolutely crystal clear that Southwark did not follow their policies for vulnerable persons, such as early intervention and advice etc. As the HHJ put it, by the time of the review, Ms Hyacienth was faced with an “uncompromising approach” by the bureaucracy – “no agreement because you are 6 months into your tenancy and you must pay all the arrears. This was in no sense tailored to her situation, it was not helping her in a constructive way and … she was not directed to agencies that might assist her”. The reviewers nor anyone in the council had considered their policies and procedures. So, all of this was really bad practice and procedurally irregular – and the HHJ clearly has Barber v Croydon LBC  EWCA Civ 51 in mind.
Southwark did not help themselves either. They failed to file the McLellan witness statement explaining how they operated the review process with the original claim, which the HHJ seems to have regarded as a requirement, not just good practice, as it enables the occupier to make a decision as to whether to raise a public law defence.
But none of this was raised before the DJ at the possession hearing, and so the basis for the appeal is unclear, certainly if it is based on proportionality. The clear guidance given by the SC in Pinnock and Powell is that it is for the occupier to raise the defence. The HHJ says that the absence of the McLellan witness statement meant that the Judge felt bound to make a possession order although enquiry was made as to the review process. But it all seems a little late to make these arguments on appeal. This point was clearly made to the HHJ (as was the dicta in Powell about the purpose of the introductory tenancy regime, requiring a high standard of behaviour, and all that guff) and who does not really comment on it. Don’t get me wrong – it’s fantastic to see this kind of success – but my instinct would have been to apply to set the original judgment aside as opposed to appeal it. That instinct wouldn’t have yielded the same outcome for Ms Hyacienth though (- note to self: be bold, be brave!).
Then, there is the actual outcome itself: claim dismissed. The HHJ uses Eastlands Homes v Whyte  EWHC 695 (QB), at , as the basis for this outcome. There, HHJ Holman applies his position developed from his judgment in Pinnock (at first instance) that the possession claim must be dismissed in the face of a successful public law defence (citing also Barber and Pinnock in the CA). This seems to me to be a rather touchy issue and underdeveloped (no doubt principally because there are so few successful cases), but a successful public law procedural irregularity claim would lead to a quashing order requiring “the decision” (the review, the decision to issue the claim, or the decision to proceed with the claim to hearing/appeal?) to be made again (having said that, though, the HHJ, with a final flourish, declares Southwark’s decision also to be Wednesbury unreasonable for not following its own guidance, which suggests that the claim dismissed remedy is proper). That was Southwark’s submission here and I’m afraid I’ve got some (limited) empathy with it. The type of tenancy seems important when remedy is being considered – if, as in Barber, the tenancy is non-secure, one can see why “claim dismissed” is appropriate because the public authority has to go and make the decision again; but, where the tenancy is introductory, that outcome has rather different effects as the authority can’t make that decision again as the tenancy is likely to be secure by that time. The HHJ, however, viewed it “as a matter of practicality” and “there is no going back or ascertaining what would have happened if appropriate help and guidance had been given earlier. Nor what the review panel would have decided if they had conducted a more thorough review”. Hmm.