When should an article 8 defence be raised? And are there different kinds of social landlords, such that the analysis of Article 8 defences in Pinnock and Powell might not be applicable to all? These were questions in Lawal & Anor v Circle 33 Housing Trust [2014] EWCA Civ 1514.

In what the Court of Appeal described as ‘an exceptional course of litigation’, there were also at stake issues about the ability to stay an eviction longer than 6 weeks after an outright possession order in Notice to Quit based proceedings and whether the occupier should put forward details of what would be required to avoid an art 8 breach in raising an art 8 defence.

The history is more than a little complicated. This appeal was actually of a refusal to set aside a possession order and/or stay a warrant. There had been a previous application for permission to appeal the possession order. However, this present appeal was the first in which the appellants were represented. As we will see, this gave rise to difficulties on orders made on the previous appeal.

Mr Lawal had been the tenant of Circle 33 (via its predecessor) since 1974. The tenancy was a secure tenancy from 1985.Mr and Mrs Laval raised 6 children in the property, but after 1981 Mr Lawal spent much of his tie in Nigeria. Mrs Lawal died in 2002. Between 2002 and 2010, his daughter Jaicee spent much time at the property while living elsewhere, then lived at the property from 2010. Mr Lawal returned to the property in 2011. However, in May 2011, Circle 33 served a notice to quit. “Although Mr. Lawal was occupying the Property at the time of the notice to quit, Circle 33 considered that he was not occupying it as his “only or principal home” for the purposes of sections 79(1) and 81 of the 1985 Act, and that he had therefore lost his status as a secure tenant.”

Circle 33 sought possession on various grounds, but the significant one was based on the notice to quit. Mr L and Janice defended in person. At first instance trial:

On the issue whether Mr. Lawal had been occupying the Property as his “only or principal home” within the meaning of section 81 of the 1985 Act, Judge May had regard particularly to the following matters: (1) Mr. Lawal’s evidence that he went “home” to Nigeria to seek work in 1981 after his father’s death and from then until 2002 was living and pursuing work opportunities in Nigeria, making brief visits back to see his family; (2) the statement in a letter dated 10 January 2003, apparently bearing Mr Lawal’s signature, recording that he had been living up to then in Nigeria; (3) Mr Lawal’s evidence that, after his wife’s death, he had “increased” the amount of time he spent in Nigeria; (4) the fact that in the 70 months before the expiry of the notice to quit Mr. Lawal had spent just seven months in the UK, for no more than one and a half months at a time; and (5) Mr. Lawal’s daughters had assumed responsibility for the Property for eight years prior to the notice to quit conducting themselves as the tenants, paying rent and applying to exercise a “right to buy” in their names. Judge May also found that Mr Lawal intended to return promptly to Nigeria after July 2011 but he then stayed in London only because the possession proceedings had been issued.

Taking into account those matters and all the other evidence, Judge May concluded that the Property was not Mr Lawal’s only or principal home in July 2011 and had not been for some considerable time before that. Mr Lawal had, therefore, ceased to satisfy the tenant condition in sections 79 and 81 of the 1985 Act and, accordingly, he had lost his status as a secure tenant. It followed that Circle 33 had validly terminated the tenancy by serving the notice to quit and was entitled to possession.
In Jaicee’s oral closing submissions for herself and her father, the appellants had for the first time advanced a defence under Article 8 of the Convention but Judge May did not make any reference to that defence in her judgment.

At the end of the trial on 25 July 2013 Judge May ordered possession of the Property on or before 5 September 2013.

Mr L sought permission to appeal the possession order to the Court of Appeal, at least in part on the basis that Judge May had failed to consider the Article 8 defence raised or Mr L’s circumstances. At renewed oral permission hearing on 12 November 2013, Arden LJ dismissed the application, but added:

“16. I am bound to say that there must be a correlation between any right to respect for home and the judge’s finding that the home at Ashbrook House was not a principal home. In favour of Article 8 is, of course, the point that Mr. Lawal has lived in the property for some 39 years and is now 76; in other words, a long-time connection with the property. But as against that, of course, it has to be said that the judge had found it was not his principal home and that is a point on which I cannot give permission to appeal.
17. However it is, in my judgment, a point that Mr. Lawal was entitled to have considered by the Court and if it was not considered by the Court on making the possession order it would, it seems to me, have been the judge’s intention that it should have been dealt with before a warrant for possession was issued.
18. It appears a warrant for possession has been issued. I have had a brief look at the Rules while in court and … it seems to me … that the person in actual occupation of [the Property] should have received notice of proceedings to get a warrant for possession. …[I]t seems to me that there must be the possibility that there was some procedure then or now capable of being used in the county court for the purpose of having that claim adjudicated upon. …
19. If there is a procedural requirement, as I believe there was, in the Shoreditch County Court, then as I see it that requirement will be very closely connected with the notice of appeal which is before the court and it may be a matter which can be brought within it. What I propose to do is to grant a stay for 14 days to allow Mr. and Ms. Lawal to investigate whether or not there is a procedure within the Shoreditch County Court for them to raise the Article 8 point by way of asking for the warrant for possession to be rescinded or varied, or for further time to be given. Only if that procedure is not available would there be any question of any further consideration by this court which would have to be by way of letter to the court.”

The resulting order stated “(1) the application for permission to appeal and a stay of execution was refused, and (2) a stay was granted for 14 days to enable the appellants to ascertain from the County Court whether they could apply in respect of their Article 8 claim and, if not, to file a further notice of appeal in respect of that refusal or (if so advised) to seek to reopen the appeal.”

Mr L then applied to Shoreditch County Court to set aside the possession order and/or stay the warrant. Before the hearing, Mr L obtained representation. That application was dismissed by Judge Mitchell in March 2014. He held:

i) the application under CPR 3.7(1) was dismissed because there had been neither a material change in circumstances since that order was made nor any misstatement or omission in the material placed before Judge May.
ii) he felt bound by Arden LJ’s observation on the application for permission to appeal Judge May’s order that Judge May had probably intended that the Article 8 issue could be raised at the enforcement stage.
iii) On the proportionality of eviction, Circle 33 was under a charitable duty to provide housing to those in need and it was likely to make the properties available to those owed the main housing duty by a local authority. The property was under-occupied and of a much needed size. Jaicee’s ill -health was not of a nature to qualify her for priority need for housing. Mr L on the other hand, was in poor health and in receipt of attendance allowance. It was arguable that he was entitled to have Jaicee with him as a full time carer. However, Mr L had not established that he would be homeless if evicted. In addition, he had only spent 10 of the 70 months prior to the NTQ in the property.
iv) Section 89 Housing Act 1980 had effect. The Court was bound by the Supreme Court in LB Hounslow v Powell [2011] UKSC 8 to the effect that section 89(1) could not read down under section 3(1) of the Human Rights Act 1998 (“the HRA 1998”) so as to provide a longer period of postponement than six weeks in a case where that would otherwise be required to give effect to the Article 8 right of an occupier. 6 weeks had expired since the possession order.
v) “assuming that it is for [Circle 33] to prove that possession would not be disproportionate, [Mr. Lawal and Jaicee] can reasonably be expected to indicate which, if any, of these two alternatives [granting an extended period for possession or suspending the order for possession on the happening of an event] would be proportionate and to provide some detail, for example, of the length of the period or terms of the suspension” and neither Mr L or Jaicee had provided the required level of detail, Mr L having simply stated he should be provided with suitable accommodation or stay at the property indefinitely.

Mr L and Ms L sought permission to appeal this order, and were also represented on this appeal. The grounds of appeal were:

(1) Judge Mitchell misdirected himself in finding that it was not possible for the county court to prevent or suspend execution of a warrant for possession on the grounds that execution would be a breach of the appellants’ rights to respect for their home under Article 8.
(2) In so far as Judge Mitchell proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights his approach was flawed in that he:
(a) failed to take into account that Circle 33 was a housing trust (not a local housing authority) and adapt the approach taken by the Supreme Court in Manchester City Council v Pinnock accordingly;
(b) put the onus on the appellants to establish how long it would be proportionate to allow them to remain in the Property and on what terms. The correct question was whether evicting them immediately was proportionate as at the date of the hearing.
(3) In so far as the Judge proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights, his approach was flawed in that he took into account the following irrelevant considerations: (i) the fact that the possible location of any alternative accommodation Mr Lawal might accept and the statutory basis and terms of any occupation agreement were unknown; and (ii) the terms on which the Mr Lawal would remain in the Property if allowed to do so by the court were unknown and he might continue to occupy the Property on the same terms as previously.

There was also an application under CPR 52.17 to reopen the original appeal from Judge May’s possession order.

On the CPR 52.15 application, the Court set out the principles to be applied.

CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528. Accordingly, […], the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. […] The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.

In this case, there was force in the appellant’s submissions that their art 8 argument should have been considered before the making of the possession order. Moreover, on the permission hearing:

Arden LJ was in a difficult position. She was not shown any transcript of the proceedings before Judge May. The appellants were representing themselves before her. No one appeared for Circle 33. She decided to take the pragmatic course of suggesting to the appellants that they explore the possibility of raising the Article 8 point at the stage of enforcement of the possession order if that were possible. What she did not appreciate was that section 89(1) of the 1980 Act deprived the county court of any jurisdiction to stay or suspend the possession order because more than six weeks had passed since the possession order was made. It is now common ground between the parties that there was no power under CPR 3.1(7) for a county court to set aside Judge May’s possession order. In those circumstances, but unknown to Arden LJ, the county court had no power to entertain the appellants’ Article 8 defence at the enforcement stage.

Arden LJ envisaged that, should that prove to be the case, the appellants would be able to return to the Court of Appeal to re-open the application for permission to appeal. She made no reference, however, to the exceptional and restricted circumstances for invoking CPR 52.17. It seems highly likely that, had she been conscious of the difficulties of re-opening the application for permission to appeal pursuant to CPR 52.17 and that the county court had no power to entertain the appellants’ Article 8 defence at the enforcement stage, she would have granted permission to appeal on the Article 8 point.

However, this was not enough to pass the CPR 52.17 threshold, as the appellant’s case amounted to no more than a criticism of Arden LJ’s refusal to give permission. Moreover, Mitchell J had subsequently considered the merits of the article 8 defence, thus remedying the injustice that might have been contained in the first instance possession order and Arden LJ’s decision.

On the substance of the appeal, it was wrong to criticise Mitchell J for not drawing a distinction between Circle 33 and local authority landlords in applying Powell. In West Kent Housing Association Limited v Haycraft [2012] EWCA Civ 276 the Court of Appeal made no distinction between the position of the claimant housing association and a local authority in the application of the Pinnock and Powell principles. R(Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 held that housing management decisions by an RSL were public functions for the purpose of judicial review and

the Supreme Court stated expressly in Pinnock (at para. [3]) that its judgment applied equally to other social landlords to the extent that they are public authorities under the HRA 1998. That point was also made clear in paragraph [54] of its judgment. In Powell Lord Hope, with whom the other Justices agreed, stated (at [35]) that both local authorities and other social landlords hold their housing stock for the benefit of the whole community, and that great weight must be given to their decisions as to how that stock should best be administered, decisions which the court is not equipped to make.

Further, Mitchell J was right “in applying the analysis in Pinnock and Powell that, in the case of possession proceedings by a local authority, (1) the evidential burden lies in the first instance on the defendant to satisfy the court that an order for evicting the defendant is not a proportionate means of achieving a legitimate aim, and (2) the threshold raising an arguable case on proportionality is a high one.”

So “While I have no doubt that it would be helpful and best practice for a social landlord such as Circle 33 to provide brief details of the matters on which Mr Luba submitted evidence should have been adduced in the present case relating to Circle 33’s housing functions and policies, I do not accept that Judge Mitchell was wrong in the present case to follow the statements in Pinnock and Powell that the same principles as to Article 8 proportionality apply to both local authorities and other social landlords”. The under occupation of the property was a relevant factor. So, the Judge was entitled to find that an order for possession of the Property and the eviction of the appellants were for a legitimate aim and a proportionate means of achieving it.

It followed that, if Judge May had considered the article 8 defence at trial and before a possession order, she would have dismissed that defence.

The appeal and the application were dismissed. The Court also went on to make observations on the timing of Art 8 defences:

As was made clear in the judgment of Briggs LJ in R (JL) v Secretary of State for Defence [2013] EWCA Civ 449, with which the other members of the Court of Appeal agreed, save in exceptional circumstances an Article 8 defence ought to be raised during the possession proceedings and in particular at the trial. To raise an Article 8 argument at the enforcement stage, when it could and should have been raised earlier, will almost always be an abuse of process. In the present case, there were exceptional circumstances, namely that (1) an Article 8 argument was in fact advanced by the appellants in their closing submissions at the trial but Judge May either declined to hear it or peremptorily dismissed it but in either case she gave no reasons for doing so in her formal judgment, and (2) Arden LJ, on the application for permission to appeal, took the view that rather than granting permission to appeal it would be better for the appellants, then acting in person, to pursue their Article 8 point at the enforcement stage. With hindsight, and with the benefit that Arden LJ did not have of legal argument and the transcript of what took place before Judge May, there is a compelling case that it would have been better if permission to appeal had been granted.

It is also worth noting the fate of an argument by Circle 33, “that in light of the reasoning of the European Court of Human Rights (“the ECrtHR”) in JL v The United Kingdom (30.9.2014) (Application No. 66387/10) there is no scope at all for the application of Article 8 in the present case. The argument is that, by stipulating the tenant condition in section 81 of the 1985 Act, Parliament has already struck the Article 8 balancing exercise that requires respect for an occupier’s home and there is no basis for the court to make separate enquiries into Article 8 issues if the court finds that the occupier has failed to satisfy that condition”.

The trouble for that argument was that the paragraph of JL that Circle 33 relied upon actually said the opposite, that it was precisely notwithstanding that the right of occupation had come to an end that the court should be able to consider art 8 issues. So, unsurprisingly, that argument was rejected and the court of appeal took time in the judgment to do so, presumably to stop it ever being raised again.

Comment

This was frankly a mess of a case, not helped by Arden LJ’s permission (non)decision. But even the apparent unfairness to litigants in person in finding that they should have sought to reopen that appeal, rather than pursue the (hopeless) route of a set aside/stay of warrant application in the County Court, was rejected on the basis that once the appellants had legal advice, they could have abandoned the application and sought to re-open the appeal.

Circle 33’s arguments on the appeal largely came to nothing as well. Their consistent attempts to argue abuse of process in the appellants’ seeking to reopen the art 8 defence were rejected as simply wrong, given Arden LJ’s findings. And then there was the hopeless argument based on JL.

But what is clear from the judgment is that:

i) An article 8 defence must be raised at or before trial, if at all possible. If not, it cannot be raised at warrant/enforcement stage, without there having exceptional circumstances to justify it not having been raised before.

ii) There is no reason to differentiate between local authority and RSL (PRP) landlords, either in the applicability of article 8, or in the presumption of legitimate aim as per Powell, (at least unless some clear, strong basis can be advanced for that differentiation, and even then, the point is uncertain).

iii) That said, it would be good practice for RSLs to put forward some evidence as to why the presumption of legitimate aim should apply in their case.

iv) S.89 Housing Act 1980 remains as an ‘all or nothing’ issue for Art 8 defences – in effect, no possession order or 6 weeks maximum suspension as alternatives. I rather suspect that permission will be sought to go to the Supreme Court on the issue of the compatibility of s.89 on this case. We shall see.

v) The evidential burden remains on the Defendants to show why eviction would be disproportionate, though it would not, it seems, require the Defendants to show how long they should remain in the property and on what terms for an order to be proportionate.