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They think it’s all over….


We covered the case of Beech v Birmingham CC in the High Court here. The appeal to the Court of Appeal was heard on 11/6/2014 and judgement was given on 17/6/2014.

I will not repeat the facts here except to say that the appeal was narrowed down to only two grounds of challenge: namely that the notice to quit was procured from the late Mrs Warren under undue influence from the housing officer, Mr Pumphrey, and that it had been given when no formal mental capacity assessment had been carried out, in breach of the Code of Practice issued under s.42(1)(a) of the Mental Capacity Act 2005 (the ‘public law defence’).

The Appellant argued that the relationship between Mr Pumphrey (a professional housing officer) and her mother (a frail and elderly resident of a care home) gave rise to a presumption of undue influence. With no evidence from the council that the NTQ was given with her mother’s fully informed will and consent, the Appellant argued that the NTQ ought to have been set aside.

The Chancellor of the High Court (giving the lead judgement) found that the trial judge’s decision that there was no undue influence bordered ‘on the unarguable’. There was no sense in which Mrs Warren placed trust and confidence in Mr Pumphrey (who had visited her at home only once before) and the relationship was merely a contractual and proprietary relationship between landlord’s agent and tenant (para.65). Despite Mrs Warren’s advanced years, the psychiatric and social work evidence available to the council indicated that she did not lack capacity when she signed the NTQ. The evidence suggested that Mrs Warren had a settled understanding that she no longer had any security over the property and that the Appellant’s rights of occupation would end once she signed the NTQ. The Appellant never invited her mother to withdraw the NTQ and had she done so, this would have given the council the opportunity to issue a NTQ of its own. In short, there was nothing about the transaction which called for an explanation and therefore no requirement to rebut any presumption.

The public law defence was described as hopeless. Apart from the fact that the Claimant’s witnesses were not cross-examined at trial on the content of the Code of Guidance, there was no evidence that even if a formal capacity assessment had been carried out on Mrs Warren at the time the NTQ was served, it would have revealed a lack of capacity. There was nothing for the Court to take into account under s.42(5) MCA 2005 and overall, it was proportionate for the council to recover possession of the property following service of the NTQ.

The appeal was therefore dismissed.


SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.


  1. The.Dark.One

    I thought you couldn’t withdraw a NTQ?

    • Giles Peaker

      You can’t. But in the context, nothing much turns on that error.

      • SJM

        indeed, and we touched on that in this post:
        but here the point was made just to illustrate the problems the Appellant had in proving that the transaction was irregular and ill-advised


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