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Successful gateway (b) defence!

By Dave

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 [2010] 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 [2010] EWHC 695 (QB), at [65], 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.


  1. S

    Few points.

    1) The problem of whether to appeal or set aside in these circumstances is going to occur a lot, because it is for the occupier to raise the point and if unrepresented they are unlikely to do so (indeed I seem to recall that someone wrote quite a good article in JHL last year on how one might go about setting aside a possession order in circumstances where the defendant attended. The short answer was it isn’t particularly easy).

    But if you can’t set aside, then what are the grounds of appeal? What did DJ Wakem do wrong? The occupier didn’t raise an art.8 defence so she didn’t have to consider it. Can a circuit judge hear a completely new point on an appeal? I, like you Dave, have my doubts.

    Art. 8 only requires someone to have the right to raise an art.8 defence; if they didn’t do so then I have a feeling – unless new circumstances arose – the answer is probably tough luck.

    2) Re the other contentious point, what to do with relief, I don’t think the county court can do anything other than dismiss the claim for possession and grant someone a secure tenancy. They can’t quash the NOPP or review decision and the occupier’s defence has succeeded. In Pinnock they considered Manchester’s arguments on Cochrane and the problem this would cause and yet said, tough.

    I personally always had a soft spot for Cochrane. I thought it was a good way of getting round this problem and I don’t see why such cases couldn’t be adjourned and sent off to the High Court for them to consider (even if that meant deciding points of fact). What problem would that actually create? Why does the forum have to be the county court?

    • Dave

      So, S, we agree on point 1 – I still think, though, that one could have got round the authorities, even Roult, on an application to set aside on the basis of procedural irregularity. On point 2, though, I would have argued (probably) that Southwark’s decision to proceed with the claim at the first hearing was what was being reviewed as they had the opportunity at that time to cure the procedural defect. They could have cured that defect by holding another review with the claim pending, thus leaving the IT still in place. If the decision was perverse, though, I’m still a little unsure and probably with you that the only thing to do would be to dismiss the claim. But, I need to be more brazen, I think.

  2. JS

    In my opinion the danger is losing the wood for the trees .

    1 I do not think that the tenant has to issue the magic words Art 8 or gateway (b) . If they raise issues of fact and make submissions that are in substance challenges to the proportionality of the eviction or draw attention to facts that demonstrate that the council has acted unlawfully that should be enough .

    2 The more difficult question is that of remedy i.e the Barnsley MBC-v-Norton point which to me is akin to saying that CBC-v-Taylor cuts both ways i.e that a decision to commence possession proceedings may start out lawful but the decision to pursue may be unlawful and vice versa

    The CJ sounds to me to have come to the right conclusion and decided that was too speculative in this case to decide what Southwark would have decided had they acted lawfully and adopted the general j.r rule that only exceptionally can relief be refused on the basis that the decision would have been bound to be the same . The consequence that an intro becomes secure is a result of the statutory scheme not the application of that principle.

  3. Dirghayu Patel

    We have just concluded a case where we raised Article 8 plus breach of social landlord’s policies to assist vulnerable tenants in rent arrears. The landlord was seeking possession under the accelerated scheme. We filed a defence and the matter was listed for a day long hearing. The landlord decided to discontinue the possession claim before the hearing.

  4. David Thomas

    Thank you, Dave, for your thoughtful report and comment. I hope you won’t mind if I add a couple of observations as the solicitor for Ms Hyacienth.
    Unfortunately we had to appeal rather than apply to set the DJ’s judgment aside, as Ms Hyacienth was present at that hearing, albeit unrepresented and in a non-speaking role. We succeeded in persuading the judge that the DJ’s decision was flawed, firstly because of the lack of a McLellan statement, secondly because the DJ said that she had no option but to make the order given the service of the notice (which suggested that she did not have public law issues in mind). In order to show that this made a difference to the outcome, we had to go on and present the public law argument; and here, as you say, the judge was persuaded that Southwark had failed to follow their own policies on vulnerable tenants, the review panel had failed to take account of this, and they had therefore reached a decision than no reasonable authority could have reached (not sure which decision the judge had in mind).
    As he had reached these decisions there was no point in just allowing the appeal and putting the case back before the DJ.
    On remedy; obviously there is a difference in practice with introductory tenancies, as dismissing the claim will often mean that the tenancy becomes secure. But I am not sure that that fact should be allowed to influence the arguments of principle involved. If the decision to issue the notice, or the decision to start proceedings is quashed as unlawful, surely the claim must go.
    A final practical point, not actually referred to in the judgment but I think influential; Ms Hyacienth gave up the struggle in January 2009, with her arrears at £166, because the local authority’s attitude made her feel there was no chance of saving her tenancy; she didn’t pay anything after that, so that at the hearing before the DJ her arrears were, from memory, about £1,500 (the service charge was large). When she came to us we put everything we could on direct deduction from her income support and reduced the rate of the HB clawback, so that her arrears stopped rising and had in fact come down some way at the appeal hearing. This made our point for us; if she had had the benefit of referrals and proper advice the situation would probably not have arisen.
    Although the judge confused his terminology a little, his main findings were clearly enough reasoned, and we think Southwark were right to feel they would not succeed on appeal.
    All the credit goes to Alice Hilkin of Pump Court for a marvelous piece of argument.

  5. David Thomas

    Sorry, for some reason I couldn’t see the earlier comments before the above post – my points have mostly already been better made by S and JS.

  6. Brett Martin

    Can I please enquire on the subject of social housing landlords not following their own procedures/policies before going for a possession order against a vulnerable tenant on an introductory tenancy.

    This friend is disabled, has two children under five one of whom is disabled himself. SHL began threatening a possession hearing August 2012 for arrears – built up from tenant having a 24/7 live in carer – and 2 instances of alleged ‘unauthorised alteration’.

    These relate to a cooker being installed by tenant which required the removal of one single kitchen unit, and a rusty bath which the SHL passed as ‘Adequate bathing facilities’ prior to tenant moving in resulting in tenant and her children having to use the kitchen sink to bathe for four months as SHL refused point blank to repair or replace despite pleading from tenant, occupational therapist and paediatric doctor. After 4 months tenant paid professional builder to install another bath. A few days after this in February SHL began accusing her of the ‘unauthorised alterations’, and have prevented important adaptations requested by OT such as a shower, hand rails etc being fitted.

    Tenant cleared the arrears in full August 2012, SHL dropped any further mention of the cooker as an issue, but kept the threat of the possession order hanging over her head until it was granted in February 2013. At no point was tenant represented in court despite local law centre taking her case on in January 2012.

    Currently being forced to sign agreement to pay £700 to ‘reinstate’ the bathroom, eviction date is set for March 19th. SHL have not applied their vulnerable tenant’s policies, nor their standards for state of house both prior to moving in, or repairing since.

    Wondering if the terms in articles above such as proportionality, article 8 could be applied here. Law centre have said as its an IT theres nothing they can do but this article suggests otherwise.

    This is a long shot but given a disabled family could face eviction without any defence in court over a bathroom it has to be worth it.

    • NL


      We can’t give advice on individual’s issues via the blog, I’m afraid.

      In general, it is certainly possible to raise an article 8 defence on possession claim for an Introductory Tenancy. That is not to say that there would or wouldn’t be such a defence in the specific case you talk about.


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