Winning the battle but losing the war?

Not every tenant victory is necessarily a victory for tenants, Andrew Arden QC and Justin Bates assert.

 

Introduction

There is a danger that this post is going to sound like sour grapes, as Andrew appeared for the authority in Camden LBC v Stafford [2012] EWCA Civ 839, the case to be discussed. It is not intended to be but, even if there is an element of it, there remains a valid point, that what may appear at first glance to be a victory for one ‘side’ or another can sometimes turn out to have very different implications in the longer term.

This is not a point that is confined to cases. The development of a proportionality defence in Manchester CC v Pinnock [2010] UKSC 45, [2011] 2 AC 104, [2011] HLR 7, and Hounslow LBC v Powell and other cases [2011] UKSC 8, [2011] 2 AC 18, [2011] HLR 23 has been hijacked by the government to do away with security of tenure in new cases such as the flexible tenancy and the so-called ‘mandatory power of possession’ in some ASB cases. Space does not allow us to elaborate on this here, but those who are interested can read Andrew’s keynote speech to the Housing Law Practitioners Association in December 2011, available here for HLPA members or by emailing Justin.

 Camden LBC v Stafford

 Stafford concerned the review of a decision to terminate an introductory tenancy. The housing officer served notice of seeking possession for anti-social behaviour (mostly noise); the tenant requested a review, apologised and said that her ex-partner was responsible for most of the problem. The review panel stated that it was upholding the notice but went on to suggest how actual eviction might be averted. ‘The Panel decided that the Notice was correctly and justifiably served as ‘there had been allegations of anti-social behaviour’ and the tenant had ‘accepted that at least some of these complaints were justified’. Nonetheless, it did ‘not believe that an application to the court for possession of the property should be made at this point in time’. Rather, while ‘… the decision to serve the Notice is upheld’ it made a number of recommendations as to steps that could be taken, such as meeting with a Youth Intervention Support Panel, an Acceptable Behaviour Agreement, and further enquiries of the police and neighbours. After further complaints, however, the authority decided to proceed with the notice.

This strategy followed Cardiff CC v Stone [2003] EWCA Civ 298, [2003] HLR 47, in which a review decision which confirmed a decision to terminate the introductory tenancy nonetheless provided that further action would be suspended on terms relating to payment of rent arrears. This was upheld as confirmation of the decision within Housing Act 1996 s129, so that, when the payments were not maintained, the authority could continue with the eviction. The argument for the tenant:

 ‘… would lead to the possibility of a local authority having to serve numerous notices. That would have the consequence that the procedure for terminating an introductory tenancy, which only has a very short life anyway, would become very formal. It is quite possible that it would discourage landlords from allowing introductory tenants to remain as tenants while they were given a second chance, and it may well be very undesirable to discourage landlords from doing so’;

 …

 ‘if the case advanced … were right, the likely consequence would be that housing authorities would almost inevitably be driven to adopt a less humane, more rigorous, unrelenting approach to introductory tenants who had failed to pay rent when it was due. In many cases there is much to be said for full, indeed generous, weight to be given by the housing authority to any relevant extenuating circumstances and for the tenant to be offered (as this tenant was) a reasonable opportunity to make amends. However, if that opportunity is rejected by the tenant, then the housing authority’s position …should not be prejudiced simply because it made allowances for a tenant’s difficulties and deferred proceedings to bring the tenancy immediately to an end’.

In Stafford, the Circuit Judge rejected the claim for possession and an appeal to the Court of Appeal was dismissed, on the basis that the letter had not confirmed the original decision as required by section 129: a review decision under section 129 could not be expressed in equivocal terms; the practical options are only to confirm the decision to seek an order for possession or to withdraw it.

Criticism

Leaving aside the obvious difficulty of reconciling Stafford and Stone, the real issue is how cases are going to be handled in the future, bearing especially in mind the requirement that the review must – if by an officer – be by one who is senior to the officer who made the original decision.

If the review can only say ‘yay or nay’ to the notice of seeking possession, without the room for manoeuvre that allows it to use what will always be its greater experience to steer a route between the anti-social behaviour and the wish to avoid eviction, it has to be anticipated that reviews will much more readily come down in favour of eviction than run the risk of carrying the responsibility for allowing an anti-social tenant to acquire security (against the initial decision that this ought not to be allowed to happen). Even if a further notice could be served, the review would still be responsible both for adding to the work involved, and – given the limited time available – for increasing the chance that later ASB could not be prayed in aid.

Conversely, while it is true, as held in Stafford, that an authority will always have the right to change its mind, and even a duty to keep the situation under review (citing Barber v Croydon LBC [2010] EWCA Civ 51, [2010] H.L.R. 26), so that it is not bound to take possession proceedings to a conclusion, once a more senior officer has ruled in favour of eviction, the likelihood of the junior officer changing course inevitably diminishes. (Reviews can be by members; that is rare; but where it does happen, the likelihood of the officer changing course reduces to nil).

The practical result will be that authorities will simply cease offering a second chance to their introductory tenants.

The decision fails to understand the nature of the review. It is not an appeal but an opportunity for the position of the authority to be reconsidered at a ‘higher’ level (officer or member). It is very hard indeed to see why the position of the authority should not be a tad more sophisticated than the Court of Appeal allows in Stafford, somewhat closer to the sort of stance recognised and validated in Stone. This is the crux of it; it deprives authorities of the scope to be more imaginative and more helpful; it fails to recognise that it is not only the tenant who seeks to avoid eviction, but the authority as well – and deprives the authority of the tools to allow them both to achieve the shared goal.

It might also be added that the decision appears to be utterly out of step with a climate of mediation and culture of alternative dispute resolution.

 

Footnote: we’re moving

As some of you may already have seen, on Friday July 20, 2012, Arden Chambers will be moving from John Street in London (where we have been based for 15 years) to newly refurbished premises on Bloomsbury Square.

This is new territory for the Bar but we rather suspect that other Chambers will join us over time.

When Andrew was first in practice (some years before Justin was born), and operating out of Chambers in Bowden Street opposite Lambeth County Court and, subsequently, Wellington Street in Covent Garden, the first time any London Chambers had stepped outside the Inns of Court, the Bar Council briefly changed their professional rules so as to require all Chambers to get its consent before operating outside of the Inns.

How times change.

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9 Comments

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9 responses to “Winning the battle but losing the war?

  1. Chris Lowry

    Sorry all- the spellchecked version!

    This resurrects the argument again about whether the mandatory nature of possession in an Introductory case can comply with Article 6, the right to a fair trial. I have always argued that a review which cannot be fully independent by nature, is not a fair hearing and that therefore mandatory possession does not allow the tenant the right to a fair trial at all.

    If, as is argued above, the review is not an appeal, then by the time the court has granted possession because it is mandatory, the tenant has had no trial at all, let alone a fair one. New arguments afoot?

    • ardenchambers

      Chris,
      Thanks for this. Is it really an art.6 issue though? The trial itself is fair, your objection is that domestic law doesn’t allow for the range of defences that you’d like to advance (e.g. that the review decision was based on an error of fact). However, given that you can take (a) a public law defence point (which could, in an appropriate case, include material error of fact) and (b) a proportionality defence (which can involve the court deciding any necessary issues of fact), surely that (it will be said) is enough?

      JB

      • Chris Lowry

        Thanks Justin.
        I know that the argument has moved away from Article 6 from the early days of Intro tenancies… but in a situation where the defendant cannot raise any defence at all because what the claimant claims has to be granted on mandatory termsthe court hearing is not a trial at all and , save for a Pinnock-type defence, cannot be a fair trial; (Parallels could perhaps be drawn with the conditions for setting aside judgment in default, CPR 13 etc, i.e, not a mini-trial).

        Perhaps in the light of Pinnock there might be an appetite to raise Article 6 afresh (after all it’s not a speeding ticket or any similar offence which attracts strict liability, it is someone’s home). I am yet to be convinced that a Government can go so far in trying to achieve a legitimate aim that it can deny someone a fair trial of the facts, which is prima facie a breach of the right to a fair trial.

        I am not a learned friend so please convince me, i won’t be bored by any sort of complex explanation.

      • ardenchambers

        But it’s not right to say that the “defendant cannot raise any defence at all”. In an Introductory Tenancy case, the tenant can argue that (i) the correct procedure hasn’t been followed; (ii) there is a public law defence; and/or, (iii) it would be disproportionate to make a possession order in all the circumstances. I can’t see any art.6 issue there. There is still a “fair and public hearing” before an independent tribunal.

        I suspect we’re talking slightly past each other though!

        JB

      • Chris Lowry

        I accept much of what you say, but I think it is more fundamental than that. The whole mandatory possession ethos is a breach of Articles 6, and 8. My point is that we have accepted it and Pinnock gives us an opportuinity to re-visit. If a tenant’s behaviour is genuinely bad for whatever reason, a judge can use his/her discretion in considering whether it is reasonable to grant possession and where they have found it reasonable, going behind such a decision is very difficult anyway, on appeal (though I did manage it twice in the past). Losing one’s home is only one step down from losing one’s liberty and there is no mandatory or summary equivalent of the housing statutes for an indictable offence (not yet anyway). I trust you are playing devil’s advocate in this argument, or perhaps you were the drafter of the legislation? (tempted to put lol here).

      • ardenchambers

        I wouldn’t say that Pinnock lets us argue whether the behaviour was genuinely bad per se. The court can determine disputes of fact to the extent that it is necessary to do so. See Holmes v Westminster CC for example, where it didn’t matter whether the housing officer had been intentionally or accidently assaulted as that was (said the High Court) a distinction without a difference in that the authority were entitled to take possession procedings either way.

        Your real objection is the mandatory grounds at all. Here you and I agree entirely (i.e. that they’re generally a bad thing and should be as narrowly construed and used in the most limited of circumstances, if at all). But I can’t see how you can argue that mandatory grounds are unlawful. One of the issues in Pinnock was whether the demoted tenancy scheme was compatible with Art.8 for being, in effect, a mandatory ground. It was, said the SC, because the order could only be made if it was lawful to do so. So it wasn’t really mandatory. The problem is that “lawful” is a pretty low threshold.

        JB

      • Chris Lowry

        Hi thanks for your insightful responses. I can’t argue that mandatory grounds are unlawful as they are enshrined in statute…but that the statute is incompatible with Articles 6 and 8 and that the legitimate aim needs re-visiting by the ECHR…we just need the right case…!

      • ardenchambers

        So, you want the ECtHR to say that mandatory grounds are contrary to Arts 6 and 8. But (playing Devil’s Advocate), do we actually have any mandatory grounds any more? Post Pinnock, you can always take proportionality. Aren’t you saying that you always want a full trial on the facts and that anything less is a breach of Arts 6 and 8?

        Related to this, from memory the Irish courts have held that various mandatory grounds (NTQ, I think) violate Art.6. I’ll try and dig those out and see if they’re relevant to our chat!

        Best
        JB

      • Chris Lowry

        Down here at the coalface of the County Courts we very much still have mandatory grounds-it is extremely hard work, if not almost impossible, successfully to raise any Public Law or HR defence and persuading the LSC to grant a certificate is an even greater first hurdle to leap. We fight on, be brave, be bold. CL (Shelter W Midlands)

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