Well, well. A successful proportionality defence on an introductory tenancy and one upheld on appeal. There is also some helpful confirmation about what can be considered in assessing proportionality.
Southend-on-Sea Borough Council v Armour (2012) QBD 18/10/2012 (Not on Bailii. Note on Lawtel and on Garden Court’s site here)
Mr A was the introductory tenant of Southend, living in a flat with his 14 year old daughter. The tenancy started in January 2011. Over the next 3 months there were three complaints that Mr A had been verbally abusive to a neighbour, a member of staff of the property managing agents and some electrical contractors. It was also alleged that he had switched on electricity while contractors were working resulting in one suffering a shock. Southend decided to seek eviction, a decision upheld on review.
Between issue of the claim and the possession hearing, some eleven months elapsed, with a couple of adjournments.
In the meantime, Mr A had been diagnosed with Asperger’s Syndrome and Severe Depression, and he lacked capacity to defend the claim. The case proceeded with a litigation friend.
There had been no further incidents between March 2011 and the hearing of the claim in March 2012. There was also evidence from Mr A’s probation officer and a youth worker as to his recent good behaviour and medical evidence on the potential effect of eviction on Mr A’s physical and mental health.
The Court at first instance, Recorder Davies, found that while Southend had been justified in bringing the claim, and that at the date of claim it would have been lawful and proportionate, Mr A’s subsequent good behaviour and the absence of any further incidents were relevant factors in assessing proportionality at the date of trial. On that basis, it was not proportionate to make a possession order. A copy of the first instance judgment is here.
[The judgment also raises the interesting question of whether such a thing as the ‘popular housing press’ actually exists – see the post-judgment discussion on permission to appeal.]
Southend appealed. Their argument on appeal was that:
1. Mr A’s compliance with the tenancy agreement issue of the claim was not a relevant consideration for an assessment of proportionality.
2. If the good behaviour was a factor, it was insufficient on the facts to give rise to an Article 8 defence.
3. The Recorder should have approached her decision on the same basis as it would have been considered at the initial hearing, as Mr A should not gain an advantage from the delay caused by the adjournments.
Mr Justice Cranston dismissed the appeal.
The overriding principle was that consideration by the Court depended on the facts of each case. (Corby BC v Scott  EWCA Civ 276,  H.L.R. 23 ). It was clear that subsequent behaviour, even good behaviour, could be a relevant consideration for proportionality. (Manchester City Council v Pinnock  UKSC 6,  2 A.C. 104 and Hounslow LBC v Powell  UKSC 8,  2 A.C. 186). The proportionality review by the court had to be on the basis of the material available at the time of the hearing. The Recorder had approached the issue of proportionality correctly and there was no error in her decision, which was a ‘model judgment’ in how such cases should be dealt with.
So, useful confirmation that the proportionality review by the court is to be based on all materials up to the date of that hearing, including post issue materials and events (or lack of them).
We always took it that the principle is that the decision to seek eviction is an ongoing one,that should be under review in changing circumstances in order to consider whether it remains proportionate. This is an affirmation of that by the High Court.
It is also a useful case on the significance of post notice conduct in Introductory tenancy possession cases.