An interesting county court appeal of a possession order – can PCOL be used for a possession claim for an Introductory Tenancy?

Crosby v Birmingham City Council, Birmingham Civil Justice Centre, 8 March 2016

Ms C was an Introductory tenant of Birmingham. She built up rent arrears. Birmingham served notice under s.128 Housing Act 1996. Ms C did not request a review. Birmingham then brought possession proceedings, using PCOL. A Possession Order was granted, then after Ms C failed to keep to an agreement on arrears, a warrant sought. Ms C then sought solicitors and as a result, the present appeal of the possession order was brought.

The only issue was whether use of PCOL was a valid means of issuing a possession claim against an Introductory tenant under s.128 Housing Act 1996.

The PCOL claim stated that possession was sought on the basis of rent arrears. It was shown that in order to file a claim via PCOL, the claimant had to tick a box giving the ground for possession, that the claim was either on the basis of ‘rental arrears’ or ‘mortgage arrears’. It was presumed that Birmingham had ticked ‘rental arrears’.

Ms C argued that the ground for possession was actually that Birmingham were entitled to possession under s.127 Housing Act 1996. The rent arrears might have been the motive, but they weren’t the ground.

This was not accepted by the court, ‘ground’ in the claim form did not necessarily have a statutory basis, and could refer to the motive for seeking possession.

More successful was Ms C’s argument in relation to Practice Direction 55B to the CPR. This provides:

Claims which may be started using Possession Claims Online
5.1 A claim may be started online if –
(1) it is brought under Section I of Part 55;
(2) it includes a possession claim for residential property by –
(a) a landlord against a tenant, solely on the ground of arrears of rent (but not a claim for forfeiture of a lease); or … (emphasis added)

The ‘solely on the grounds of arrears of rent’ was also repeated in the PCOL guidance.

The Court decided that ‘solely’ was a clear indication that PCOL was not to be used for claims other than for rent arrears. The online forms were not designed for possession claims for Introductory tenancies. While the claim could be made to ‘fit’ the form, it was not a claim ‘solely’ on the grounds of rent arrears.

That found, Ms C’s further argument that the use of PCOL amounted to an abuse of process was not successful. Use of PCOL had not removed the scrutiny of the court, had not hidden any information, and had not changed the procedure to the detriment of the Defendant/Appellant.

As a result, the possession order was not set aside, but the council was not entitled to its issue fee as costs as it had used the wrong procedure to issue the claim.

Comment

While the use of PCOL was not sufficient to have the possession order set aside on appeal, it is worth noting for both Local Authority claimants and those acting for tenants (including duty advisors) that a possession claim issued under PCOL is not procedurally correct (or at least arguably so, given that this was a county court appeal). While it was not enough to overturn the possession order in this appeal after evidence and hearing, there is obviously the possibility that if caught (or noticed by the court) at an earlier stage, it may possibly be enough to have the possession claim dismissed.

The flip side (for both council landlords and in some respects tenants) is that the fees for non-PCOL claims are higher.