Nothing ever really changes, does it?

Corby BC v Scott & West Kent Housing Association v Haycraft [2012] EWCA Civ 276  are the first cases that have required the Court of Appeal to consider and apply the guidance given in Powell v Hounslow LBC [2011] UKSC 8 & Pinnock v Manchester CC [2010] UKSC 45 (our notes here & here).

Facts – Scott

In December 2009, Ms Scott was granted an introductory tenancy by Corby. In May 2010 she began to accrue arrears of rent and by August 2010 she owed £285. Corby served a notice of possession proceedings, but shortly afterwards Ms Scott’s mother cleared the arrears. Rather than issuing a claim for possession Corby served a notice on Ms Scott extending her introductory tenancy by another six months.

Despite this warning, Ms Scott quickly began to accrue arrears again and by October 2010 owed £285 again. Corby served a new notice of possession proceedings. Ms Scott did not request a review. In December 2010, Corby issued a claim for possession.The arrears were then £335.

The matter came on before a district judge who appears to have adjourned the first hearing on terms that Ms Scott pay current rent plus £3.40 and then gave directions for trial at a second hearing. However, the arrears continued to rise and Ms Scott’s mother was once again called upon to the clear the arrears which she did through two payments in June 2011 and July 2011. The last payment was the day before the trial.

At trial HHJ Hampton acknowledged that she was required to give Corby possession unless Ms Scott could defeat the claim by satisfying the court that her eviction would amount to a disproportionate interference with her Article 8 rights. To do this Ms Scott was required to “establish highly exceptional circumstances”.

HHJ Hampton dismissed the claim. She found that there were highly exceptional circumstances for the following reasons: Ms Scott had been the victim of a serious assault in July 2010 (which was described as a murderous assault) and her arrears had been cleared by the date of the trial.

Unsurprisingly, Corby appealed.

Facts – Haycraft

In May 2009, West Kent HA granted Mr Haycraft an assured-shorthold tenancy. It was to be a starter tenancy and would eventually become fully assured. Two days after the tenancy had been granted a vulnerable neighbour alleged that Mr Haycraft had exposed himself to her. Further allegations of noise nuisance and verbal abuse were also reported in the following ten weeks. However, it was accepted that there had been no nuisance since the summer of 2009.

In September 2009, West Kent HA served Mr Haycraft with a s.21 notice. However, this notice was abandoned (presumably because it was served within the first six months of the tenancy) and a further notice was served in March 2010. Mr Haycraft asked for a review of the decision to evict him and at the review hearing contended that he was not guilty of exposing himself and relied upon a letter from the police stating that he would not be prosecuted. However, the panel conducting the review decided that he had exposed himself and upheld the decision to seek possession.

In October 2010, a deputy district judge considered Mr Haycraft’s defence summarily and made an order for possession (he did not allow Mr Haycraft to rely on an Article 8 defence because the hearing was heard before Pinnock had been decided). Mr Haycraft appealed to a circuit judge. HHJ Simpkiss permitted him to rely on his Article 8 defence, but dismissed the appeal. He did not hear evidence and was satisfied that Mr Haycraft had exposed himself. He further found that the fact Mr Haycraft would be homeless if evicted, had a family and liver and kidney problems did not warrant a trial, let alone warrant the claim for possession being dismissed.

Mr Haycraft appealed.

Court of Appeal

Scott

The appeal was allowed. The case should not have proceeded to trial, let alone resulted in Corby having their claim for possession dismissed. The fact that Ms Scott had been the victim of a serious assault was completely irrelevant to her Article 8 defence; there was no evidence that the attack had mentally or physically injured Ms Scott so that her eviction would be particularly harmful to her. Nor did it explain why Ms Scott had failed to pay her rent. While it might be exceptional, it was wholly irrelevant.

Nor could it be said that the clearing of the arrears the day before the trial was a factor in Ms Scott’s favour. Save for in extraordinary circumstances, the fact that a defendant has cleared their arrears before a hearing should not be sufficient to cross the high threshold required for the court to give directions for a contested trial. It was “fanciful to suggest that a residential occupier should be able to pray in aid the fact that she has paid the landlord money which she owed him.”

The Judge had erred by concentrating on whether the facts were exceptional; exceptionality is not a measure of outcome, albeit it is a useful “cross-check” for judges when deciding if a defendant should be able to invoke Article 8.

Haycraft

The Court of Appeal dismissed the appeal. The decision that Mr Haycraft had exposed himself had been arrived at after a hearing. The conclusions were well articulated and well reasoned. Mr Haycraft had not come up with any new points that challenged the finding and had not called into question the fairness of the hearing. It followed that the county court was not required to hear evidence on this point as the association was only required to consider “whether in the context of allegation and counter-allegation it was reasonable for the [association] to take a decision to proceed with termination of the … tenancy” (i.e. the test set out in McClellan which was approved by Lord Phillips in Powell).

The absence of further behaviour was mitigation for his behaviour, but it was no more than that. Moreover, while it was accepted that Mr Haycraft was not in good health, there was no evidence that his health would worsen if he were evicted.

In relation to his prospects of re-housing it was accepted that he would be likely to be found to be intentionally homeless, although his family wouldn’t. However, this was not a significant factor as Article 8 merely affords a person respect for their home rather than a right  to a home. The absence of a right to be re-housed cannot therefore be a factor in favour of dismissing the possession claim, while the right to be re-housed is a factor that would weigh against an Article 8 defence.

The Court of Appeal declined to give guidance on how such claims should proceed procedurally as they thought that any comments might do more harm than good. However, they repeated the point that hearings should not proceed to a trial unless they crossed the high-threshold and emphasised “how exceptional the facts relied on by any residential occupier must be, before an Article 8 case can have a real prospect of success.”

Comment

My view is that this case adds another nail into the great Article 8 defence coffin.

First, the Court of Appeal has re-iterated just how high the threshold is. Even where someone has poor health and has behaved themselves for the best part of a year that won’t be good enough.

Second, the Court of Appeal has, in my view anyway, ruled out the need for evidence in ASB cases where a review hearing has been carried out and findings of fact have been made against the tenant. If a council or association have weighed up the allegations and counter allegations, and done so in a way that was procedurally fair to the tenant, the county court should not hear further evidence on the subject. Unless a tenant can produce evidence which shows that the decision reached after the review hearing was Wednesbury unreasonable a county court should not give directions for a trial.

Finally, they have made clear that the fact a tenant may become homeless is not a factor that should weigh in his favour.

What are we left with? Well my view is that unless you have a public law defence or highly exceptional personal circumstances you aren’t going to get very far. At the time that Powell came out I commented that I didn’t really think that the law had moved on a huge amount since Kay and I think the approach of the Court of Appeal simply reinforces that.

We are also left with a test that appears to be: the question for the courts is not whether the facts of the case are exceptional, however, it will only be where are truly exceptional facts that the high threshold will be crossed. Good luck explaining that to the district judges of England and Wales.

 

About S

S is a barrister, based in London, who practices predominantly in housing and local government law.
Posted in Assured Shorthold tenancy, Housing law - All, Introductory and Demoted tenancies.

5 Comments

  1. I am afraid I think the analysis here is simply wrong .

    Firstly, I suspect the decision in the Haycraft case was strongly influenced by the fact that his new wife and child would clearly be owed a duty under Part VII as she could not even conceivably be held to have acquisced in his conduct and that he would no doubt be able to tag along with them as person expected to reside played a significant part.

    The true lesson to be learned from both of these cases is the importance of focusing your evidence on the proportionality question and making sure it is relevant to it . Lord Neuberger has in effect relegated exceptionality to a final cross check.

    Secondly, it is to go way too far to suggest that the effect of Lord Phillips’s remarks about McLellan in essence reverse Pinnock. In my opinion , they show a plain error of principle on his part as the ease of termination in domestic administrative law and the test to be applied on judicial review in McLellan are simply irrelevant to what the ECtHR demanded in Connors -v- UK accepted in both Kay and Pinnock namely that if the facts are in dispute that the tenant/occupier has the right to have those determined by an independent and impartial tribunal

    The interpretation given by Lord Neuberger in Haycraft appears to be that as there was only a bare denial and no new material raised that there was no need for the court to consider it seemingly on the basis that it would come to the same conclusion. This “fact threshold” , which is the proper construction to be given to Lord Phillips’ remarks is in itself wrong when one considers Connors and indeed common sense – the reason for a bare denial might be that the tenant has no idea why a malicious complaint would be made about them. To say however that the effect is that a court would be constrained to consider only Wednesbury reasonableness as if Pinnock never happened is simply not made out in the judgment of Lord Neuberger and moreover I doubt would survive a further ECtHR challenge as its effect would be to put us back to pre Kay and an acceptance of only half of the two requirements of the ECHR jurisprudence i.e proportionality assessed not on the facts but the public authority’s understanding of the facts.

  2. Re your first point, I’m not sure that Haycraft can be read like that. I accept that Neuberger says this:

    “[30]… [T]he right to be re-housed appears to me to be a factor weighing against the Article 8 claim prevailing…”

    But he then goes onto say that the absence of such a right would not be a factor in a claim succeeding, because Article 8 is not concerned with the provision of a home, i.e. the fact that someone may be made intentionally homeless should not be weighed in their favour.

    Re your second point, you may well be right, but that isn’t how Neuberger views it. I’m also not so sure Strasbourg would have a problem with it because in Kay v UK they said Doherty plus personal circumstances is OK.

    I agree that it is arguable (perhaps even right) that, so as to be afforded the procedural rights of Article 8, a tenant must be able to have factual disputes litigated in the county court if they are relevant to the reason for seeking possession (as the review hearing isn’t before an impartial tribunal).

    However, Neuberger says Article 8 doesn’t require that where there has been a review decision and the procedure on review is not being questionned and the decision can’t be shown to be Wednesbury unreasonable. I accept this may be queried, but the Supreme Court and the Master of the Rolls are firmly on the other side of the argument and I’m not sure Strasbourg are really that interested anymore (see Kay v UK).

  3. I don’t accept that is a correct interpretation of what Lord Neuberger says re factual disputes and Kay-vUK said nothing of the kind – an argument to that effect in Pinnock was rejected .

    What I cannot see is any discussion of the argument in Scott and Haycraft which does not tell us whether anyone raised the apparent contradictions between that interpretation of Lord Phillips’ remarks and the judgment in Pinnock.

  4. The difficulty I have with that point is that Neuberger gave the judgment in Pinnock and clearly does not see any contradiction between Pinnock and what Lord Phillips said in Powell. Moreover, if there is such a contradiction he has plainly changed his mind and put all his weight behind Lord Phillips as he cites him with approval.

    I think we are going to have to differ on this one!

  5. Well he cites him – not necessarily with approval . It is clear, however, that he does not give the interpretation to Lord Phillips’ remarks that you contend for – there is no suggestion we are back to McLellan for factual disputes.

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