Not every tenant victory is necessarily a victory for tenants, Andrew Arden QC and Justin Bates assert.
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  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  UKSC 45,  2 AC 104,  HLR 7, and Hounslow LBC v Powell and other cases  UKSC 8,  2 AC 18,  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  EWCA Civ 298,  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.
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  EWCA Civ 51,  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.