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Cite as: [2011] EW Misc 18 (CC)

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BAILII Citation Number: [2011] EW Misc 18 (CC)
Case No: 1CD0078


The Derby Combined Court Centre
Derby DE1 2XE
22 December 2011

B e f o r e :

Mr Recorder Tidbury


- and –




Stephen Oliver, Chesterfield Borough Council for the Claimants
Phillip Barber (instructed by Chesterfield Law Centre, 44 Park Road, Chesterfield S40 1XZ) for the Defendant
Hearing dates: 12th October 2011



Crown Copyright ©

    Mr Recorder Tidbury

  1. This is a claim by Chesterfield Borough Council, the claimants, against the defendant Jane Bailey for possession of their property at 36, Hunloke Avenue, Boythorpe, Chesterfield, S40 2NU. The property is a three bedroomed house and was let to the defendant and her then husband, Robert Bailey, as joint tenants.
  2. The defendant has been a tenant of the claimants for a number of years. She first took a tenancy from them in about August 1996, in respect of premises at 75 Walton Drive Chesterfield. In about the beginning of 2002 (the tenancy is dated 25th March 2002) the claimants moved her (With her consent, co-operation and approval) to her present home, the premises in respect of which the possession order is sought. The reason for the move was that the council wished to carry out substantial refurbishment and modernisation of the Walton Drive property, and this was much easier to do without a tenant in occupation. As a side issue, it is apparent that the move was welcome from the defendant's perspective because she had problems with her neighbours.
  3. Prior to her move of house she had met and, on 22nd September 2001 married, Mr Robert Bailey. Also living with them were her two sons from a previous marriage, Luke who was born on 10th January 1988 and was therefore aged 14 and Thomas born 6/1/1991 aged 11. The tenancy of Walton Drive was in her sole name, and had been granted to her following the end of her previous marriage. Mr Bailey had never become a joint tenant of that property, but, because he was living with her as part of the family (and married to her) at the time of the move of properties, he was put on the tenancy of Hunloke Avenue as a joint tenant. In written evidence the defendant says that she was told that putting her husband on the tenancy was the only way that she could move into alternative property, that she felt pressurised at the time, and had she been given better options she would not have agreed to losing her sole tenancy, bearing in mind her primary responsibility was to her two sons. She says that she was not advised properly of the consequences of accepting a joint tenancy. I am satisfied that she would not have received any advice about this, and accept her evidence on this point. I accept her evidence that she was told that she had to have her husband on the new tenancy, but I have some reservations about the extent to which she would have been concerned or would have disagreed to such a proposal given that they were newly married at the time, and I do not in my judgment rely on that part of her evidence.
  4. Sadly the marriage broke down. The defendant and her husband separated in August 2005 (by which time the defendant's sons were aged 17 and 14 respectively). Mr Bailey moved out of the house. Suffice to say that the defendant alleges domestic violence, and that proceedings were taken by the police in the North East Derbyshire and Dales Magistrates Court for harassment, and that on 4th November 2005 an order was made restraining Mr Bailey from harassing her or causing her to fear that violence would be used against her.
  5. The defendant in her evidence says that over the years she has tried to get her husband to remove his name from the tenancy but that he has refused to do so. She has herself held back from instituting divorce proceedings either on the basis of his behaviour or more recently on the basis of 5 years separation because she has been fearful of the consequences should she do so. She says that each year, around their wedding anniversary in September, he has continued to torment and frighten her. Although she has no direct evidence that the matters complained of are carried out by her husband she feels it is too much of a coincidence to be anyone else. Clearly these matters were not explored in evidence, being of only marginal relevance to the issues in this case. She says that the service of the 2010 Notice to Quit was carried out with the same motivation – out of spite and malice. I have no reason to doubt her belief as to the way that he behaved each year on or around their wedding anniversary. Clearly I can make no findings about whether or not it was him, or some wholly unconnected person. Similarly I cannot go so far as to find that the motivation for the surrender of tenancy (by service of the Notice to Quit) was as she states. I have not heard him give evidence, I have no reason to suppose that the consequences of his action were explained to him by the Council, and on the explanation given by him at the time (Rent Arrears Notepad 22) the timing on this occasion was linked to a letter informing him of arrears of rent. Whatever his motive – whether out of spite or whether to protect himself from rent arrears - once having spoken to the council they told him what he should do, and they, the council, made the running on the serving of the Notice to Quit.
  6. At the date of ceasing to live in the property (2005) Mr Bailey did nothing about the joint tenancy, simply leaving his wife to live in the property (and to pay the rent). In September 2010 however he gave notice to quit to the Claimants, and as one of two joint tenants was entitled thereby to terminate the joint tenancy under which Jane Bailey was entitled to occupy the premises. It is the defendant's case that this was done with the motive of causing her to lose her property.
  7. There is no dispute that as a matter of law notice given by one of two joint tenants is effective to terminate the legal joint tenancy. Both parties are agreed that that is a matter of settled law (see Hammersmith & Fulham v Monk [1992] 1 AC 478).
  8. The defendant in her defence denies that the claimant has a right to possession of the property. She accepts that she has been a tenant of the property since 25th March 2002, and asserts (it is not disputed) that there are no arrears of rent. It sets out that she played no part in the service of the Notice to Quit by Mr Bailey, says that she has been the subject of domestic violence by him, and has obtained court orders excluding him from the property.
  9. In her defence she takes 4 main points.
  10. (1) She puts the claimant to proof of service of an effective Notice to Quit by her co joint tenant.

    (2) She puts the Landlord to proof that a joint tenancy was in fact created in 2002.

    (3) She relies on her article 8 rights under the European Convention on Human Rights for respect for her home, and says that there should be no interference by a public authority with the exercise of her right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.

    (4) She relies on her Article 6 rights and asserts that the claimant as a public authority is prohibited from acting otherwise than in accordance with the European Convention, and must act proportionately. She says it would be disproportionate to evict her when her continued occupation (the earlier part of which was as a sole tenant) is considered, when the fact that she was not properly advised about the consequences of accepting a joint tenancy, and finally that she was in no way culpable for the determination of the tenancy.

  11. Before me the case for the claimant has been presented by Mr Oliver, a solicitor employed in the Chesterfield Legal Services Department, and the defendant has been represented by Counsel, Mr Barber. I received a helpful statement of case for the claimant and a substantial skeleton argument from the defendant. I am grateful to both for the helpful way that they put their respective cases and dealt with the evidence. I heard brief oral evidence from 2 witnesses for the claimant and from the defendant herself. Following closing submissions , as I had warned that I probably would, I reserved Judgment. Following reservation of Judgment I have asked for further written submissions on one further point, whether or not 28 days notice had in fact been given in this case, and been provided with those.
  12. When the case came on for hearing the focus had narrowed the issues slightly. Both parties agreed that there were effectively two issues for me to deal with.
  13. (1) Was the Notice to Quit valid and effective to determine the tenancy (and the points taken are whether it was properly served, and whether it complied with the terms of the tenancy agreement as to time of termination. Following reservation I asked for further submissions on whether or not the contractually provided period of notice had been given).

    (2) If the tenancy has been determined has the defendant nonetheless got a defence to the possession proceedings under Article 8 of the ECHR. This involves an examination of law and fact.

  14. If I determine issue one against the council then it is accepted (I think) that they are unlikely to achieve a possession order against the defendant. She will be able to obtain an order preventing Mr Bailey from serving another Notice to Quit, and in Family Law Act proceedings will no doubt be in a position to apply for a transfer of the tenancy, which it is thought the claimants will be unable to resist.
  15. This is not a case where there is a substantial evidential issue in the evidence requiring a decision on whose evidence is preferred. It is a case where such evidence as has been given before me has clarified or enlarged on statements, and where all those giving evidence have, it seems to me, done their best to assist the court with honest answers to the questions put to them.
  16. The issues being essentially separate I intend to deal with them, and the submissions made on each of them, sequentially.

  18. The evidence is that on 3rd September 2010 Mr Bailey phoned to say that he had received a standard letter from the Claimant regarding rent arrears. He wanted to know what to do, because he had left the property 5 years previously. He was advised to call into the claimant's office- the name of which was "on the move", and to have his name taken off the joint tenancy. Thus far the evidence comes from a file note extracted from the claimant's "rent arrears notepad" (1/22). On 6th September he went to "on the move" and there saw the claimant's Housing Solutions Assistant, Stephanie Austin. Again there is no disagreement about her evidence. She does not remember meeting Mr Bailey specifically (this was now a year ago) but she does see her handwriting on the Notice to Quit, which she filled out, and on which she wrote the word "McGrady". That was the word written in her office on a Notice to Quit to signify that it was notice from one of two joint tenants and that it would be effective to terminate the tenancy.
  19. She was asked questions about the time of day that the notice was filled in and she replied that the time of day would not have been significant to her. Given that it was done on a Monday 6th September she would have put in an end date of Monday 4th October even had the form been filled in and signed after 4pm. Following signing his Notice to Quit it would appear (though she could not definitely say whether he went before or after seeing her) that Mr Bailey went across the road to the rent office where he saw Elizabeth Mellon who, asked by him if he would still be liable for the rent arrears, informed him that his name would be taken off the tenancy with effect from 4th October 2010, but legally he would be equally liable up till that date for half of the debt.
  20. That is the evidence about the Notice to Quit. For the defendant there are essentially two submissions. First, the Notice to Quit does not provide a time for termination of the tenancy (specifically according to the tenancy terms 4 full weeks notice in writing to expire on a Monday at midday if you wish to end your tenancy (2/62)). Secondly the notice is not (and there is no dispute about this point) sent to the address provided for in the tenancy, "The Head of Housing, Town Hall, Chesterfield, S40 1LP. For the claimants it was submitted that the wording as to the address was "permissive" – Notice "may be sent by post or delivered…" As to the first point, it was submitted that the absence from the notice of the words "expiring at Midday (or 12 noon)" on the date of Termination cannot be fatal to the Notice. During the evidence a further point was taken – that the full 4 weeks notice had not been given. That point had not been taken in the skeleton argument, nor was it pursued in final submissions, and indeed during the hearing Mr Barber accepted the common law rule that a Notice to Quit given on a Monday effective 4 weeks later is given in accordance with both the Protection from Eviction Act and the common law. When preparing this judgment, and mindful that the tenancy expired contractually at 12 noon on the Monday, I asked for further submissions on the actual wording of this tenancy agreement, and both parties produced submissions in writing and replied to the respective submissions of the other party in very short time for which I am grateful.
  21. I have considered the submissions on the three points on the Notice to Quit carefully. I have to be satisfied on the balance of probabilities that, in accordance with the tenancy, "a minimum of four full weeks' notice in writing to expire on a Monday at midday" was given to determine this tenancy.
  22. So far as findings of fact are concerned, the factual basis set out above I accept. On the basis of the date inserted on the Notice to Quit by Miss Austin I accept that it was signed by Mr Bailey in front of her on that day. I also accept, on the basis of the rent arrears notepad that it was produced to Elizabeth Mutton at the rent office, and given to her and received by her on that day. Why else would she have given the advice that he would be taken off the tenancy on 4th October 2011. This was an important point and I am satisfied that she had received (and therefore the council been served with), the notice to quit when she gave that advice. I have considered whether there is sufficient evidence on which to find the time at which the notice was handed in. Given the reply to me from Miss Austin, that because the Notice to Quit was completed on Monday 6th September she would have put the end date as Monday 4th October even if the Notice had been completed at 4pm I cannot on the balance of probabilities be satisfied that the notice was completed before noon on that day. The burden on that issue (if relevant) falls on the claimant and I cannot be so satisfied.
  23. I have considered whether delivery of the Notice to Quit to the offices of the council at an address other than the address in the tenancy invalidates the notice. I am satisfied that it does not. The Tenancy Agreement states (46) "If the tenant wishes to give notice to the Council, it MAY accentuation) be sent by post or delivered to the Head of Housing, Town Hall, Chesterfield S40 1LP. The word used is "May". That wording of itself should deal with the point. If the tenant uses the Town Hall address his notice is beyond any possible criticism on that ground. If however he chooses another reasonable (housing related) council address then provided he can show that the address selected is a reasonable one in my view his notice will be valid. In this case, where the council effectively told him how to proceed with his notice, and he followed their instructions, the notice cannot be said not to have been given to the correct office. The purpose of a notice is to give notice to the Landlord of the termination of the tenancy. If the Landlord elects to receive his notice at a place other than the Town Hall (in one of his housing offices) that is a matter for him.
  24. The second point raised is that the Notice is defective unless it states in accordance with the tenancy the time at which the tenancy is to end. I have considered the submission to that effect by Mr Barber, for which he was unable to find any authority, and prefer the submission of Mr Oliver that the absence is not fatal to the validity of the notice. The purpose of a Notice to Quit is to inform the (in this case Landlord) that the tenant is quitting. For reasons of law this notice never needed to be seen by the defendant in order to be effective. The parties to it both knew and intended that the tenancy would cease on Monday 4th October, and the specific terms of the tenancy said that it was to determine at midday (on 4 full weeks notice). To say that the notice was defective for failing to put in the words "at midday" cannot be correct and accordingly I do not hold the notice invalid on that ground.
  25. The final point on the Notice is that it was not served in time. I have already said that I cannot find on the balance of probabilities that it was served before 12 noon on the Monday, but that I am satisfied that it was served during the day on Monday.
  26. Claimant's Submissions
  27. For the Claimant Mr Oliver accepts that the tenancy agreement requires "a minimum of 4 full weeks notice (which he says is 28 days) and the notice must expire on Monday at midday. He then points to the notice and says that it does not say a time – just "Date of Termination" – Monday 4 October 2010. He goes on to submit that a notice to quit of a periodic tenancy must comply with any relevant statutory requirements and with common law requirements, and he then sets out the relevant part of section 5 of the Protection from Eviction Act 1977 which states:

    ….No notice by a landlord or a tenant to quit any premises….let as a dwelling shall be valid unless –
    (a) It is in writing….. ; and
    (b) It is given not less than four weeks before the date on which it is to take effect"

    The requirement for a minimum of 4 weeks notice does not, he submits, mean "28 clear days", and relies on Schnabel v Allard [1966] 3 All ER 816 (CA). A notice which is served on Monday 6th September 2010 complies with section 5 of the Protection of eviction Act 1977 if it expires 4 weeks later on Monday 4th October 2010. In strict law the tenant is entitled to stay until midnight of the day on which the notice expires – and for this proposition relies on Bathavon District Council v Carlile [1958] 1 All ER 801 CA.

  28. He then considers the position at common law, and submits that a Notice to Quit must comply with the common law requirements relating to validity. Where there are express terms as to the notice to be given by either party to determine the tenancy, notice in accordance with those terms must be given save that no express provision in the tenancy agreement can override section 5 of the Protection from Eviction Act 1977. So, a notice cannot be given for less than 4 weeks before the date on which it is to take effect. On this basis he submits that if the notice had said "Termination – Monday 4 October 2010 at midday" then arguably the notice would have been bad because it would have fallen 12 hours short of the required notice period. His submission continued that a notice to quit a weekly tenancy may expire either on the same day as the date on which the tenancy commenced or on the date on which the rent is paid or the day before, that in this case the tenancy agreement provides that the rent is payable every Monday, and accordingly the notice expired on the correct day. His submission concluded that because the express terms of the tenancy agreement were subject to section 5 of the Protection from Eviction Act 1977 and the notice in question was valid because it was given on Monday and expired 4 weeks later on Monday (4th October).
  29. Defendant's Submissions
  30. For the defendant Mr Barber accepted that at common law a notice to quit effective on a Monday does not count the day on which it was given but does count the day on which it is to take effect. That is however on the basis that the day on which it takes effect runs until midnight and the notice takes effect at that time. He submits however that the tenancy in this case stipulates that the notice is to take effect on the Monday on which it is to take effect at midday. The notice must be of four weeks duration. Therefore in this case a notice given on a Monday exactly 4 weeks before the date on which it is to take effect is not four clear weeks – but is in fact 3 weeks and 6½ days. The day on which the notice is given does not count, and the notice must end or be taken to have ended, at 12 midday on the Monday which will therefore not be 28 days.

    In support of his submission he relies on Weston v Fidler 88 LT 769, Newman v Slade [1926] 2 KB 328 and Portmadoc v Antoninzzi [1973] EGD 318.

  31. In the light of the submissions I gave both the parties the chance to reply to the other's submission.
  32. For the claimant Mr Oliver re-iterated that the point he wanted to make was that the notice did not stipulate that it was to expire at midday on 4th October, and that had it done so it was arguable that it would have been too short, but there was no reference to midday. The express term in the contract has to be read subject to s5 of the Protection from Eviction Act 1977 in a case such as this where the notice is given by a tenant on a Monday and expires 4 weeks later without specifying the actual time of day.
  33. For the defendant Mr Barber submitted that there was no inconsistency between the Schnabel case and the Portmadoc line of authorities. They address different issues and are both good law. He accepted that at common law (and noted that this was consistent with the Protection from Eviction Act 1977) a notice to quit a weekly periodic tenancy can expire at midnight on the day before or on the day of a period of the tenancy. That is to say, a Friday to Friday weekly tenancy notice can be served on the Friday to expire the following Friday four weeks hence at midnight or on the Thursday to expire at midnight on the following Thursday four weeks hence. In both those situations, that gives four full weeks and this was the point in Schnabel. That, he submits, is the point made by Lord Denning in that case where he states that the general rule is that at common law you don't count either the day on which the notice is sent or the day on which it is given. However, the difference between that case and this is the contractual provision for the time of day to end the tenancy. In this case the contractual provision is for a minimum of four weeks notice in writing to expire on a Monday at midday; therefore he submits the common law rules on the notice period do not apply as the contract provides for the day upon which and time at which the notice must expire. He then reiterates his previous submission submitting that to be good, notice to expire at noon on the Monday would have to been given on the Sunday 4 weeks before at latest.
  34. My Decision:

  35. Notices to Quit are a technical area of the law. Schnabel v Allard overruled a decision of the Divisional Court in Thompson v Stimpson [1961] 1 QB 195 where the Divisional Court had held that "not less than four weeks" excluded both the day of giving and receiving the notice. Lord Denning in the Court of Appeal said that that was incorrect, and that the rule in Landlord and Tenant cases is that you exclude only one and not both of the days. A Notice to Quit (requiring seven days notice) given on one Saturday is good for the next Saturday, and a notice requiring a period "not less than four weeks" is satisfied by being given on one day to expire that day four weeks. Danckwerts and Diplock LJJs delivered judgments in agreement with Lord Denning. The Judgment of Diplock LJ however explains the point with great clarity at p818 I.
  36. "We must approach this appeal on the basis that the notice to quit on Friday April 1 was received by the tenant on Friday March 4……The tenancy was a Saturday to Saturday tenancy, as the rent book shows. Crate v Miller [1947] K.B. 946, a decision of this court, shows that at common law a periodic Saturday to Saturday tenancy expires on Friday at midnight. So far as the date of expiration of the tenancy and the length of the notice at common law is concerned the notice served was valid" .

  37. Bathavon Rural District Council v Carlile deals with the requirement of the Notice to Quit to expire at the proper time. As Hodson LJ (reading the Judgment of the Court sitting with Pearce LJ and Upjohn J) said in that case at p802F:
  38. "The defendant was a weekly tenant, and there is no question between the parties but that the weekly tenancy runs from Monday until Sunday night; ie the midnight between Sunday and the Monday following that Sunday."

    And at 804B:

    "The second question is highly techhincal and depends on the validity of a notice to quit dated June 4th 1957 which is in the following terms:
    "Notice to quit to ……. I hereby give you notice to quit and deliver up the premises known as ….. by noon on Monday 1 July 1957. Dated this June 4 1957",,
    a Friday, signed by the clerk of the council. If the notice was good, and not otherwise, the council are entitled to mesne profits as claimed from July 1st 1957 to the date of the hearing.
    It was contended by the council that, on a true construction of the notice, it being agreed that the tenancy ended on Sunday night and not on the Monday following, the notice expired at the same time as the tenancy notwithstanding the words "by noon on Monday, July 1 1957". A. L. Smith,LJ said in Sidebotham v Holland [1895] 1 QB 378 at 388:
    "it cannot be denied that the law upon notices to quit is highly technical; but the technicalities are too deep rooted in our law to be now got rid of…"
    This question depends on such a technicality which can only be justified because a notice to quit is a unilateral act determining a tenancy without the consent of the opposite party and as such must be strictly construed. The rule of law is that a notice to quit is bad which does not expire at the proper time……….. it is scarcely necessary to point out that the trap laid by this technicality is commonly avoided by the addition of words to the effect that if the date mentioned is not the real date on which the period expires, then the notice to quit is to expire on the proper day of expiry next after the expiration of the current period."

    And at 804 G – 805:

    "The next matter to consider is whether a notice expressed to end on the day following the expiration of the period can be good. The answer is "Yes" and is to be found in Sidebotham v Holland and a later decision of the Court of Appeal in Crate v Miller [1947] 2 All ER 45. In the former case, which concerned a yearly tenancy, Lindley LJ delivered a judgment in which Lord Halsbury concurred, AL Smith LJ doubting but not dissenting. The tenancy there began on May 19 and a notice to quit on May 19 was held to be good, that being the anniversary of the commencement of the term. There is a passage in the judgment of Lindley, L.J., which contains this language ([1895] 1 QB at p.383):
    "The validity of a notice to quit ought not to turn on the splitting of a straw. Moreover, if hypercriticisms are to be indulged in, a notice to quit at the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before. But such subtleties ought to be and are disregarded as out of place."
    This passage supports the contention that the notice in this case is not rendered bad by expiring on Monday, for as Lindley LJ, pointed out, a notice to quit on the first moment of the anniversary ought to be just as good as a notice to quit on the last moment of the day before, although he continued by saying that such subtleties should be and were disregarded as out of place, no doubt on the principle of de minimis non curat lex. However, since the decision of this court in Crate v Miller, also the case of a weekly tenancy, it seems clear that the true explanation of this principle is, not de minimis non curat lex, but that the court construes a notice given for the anniversary as a notice expiring at the first moment of the anniversary. Somervell L.J. there delivered the judgment of the court and applied the decision of Sidebotham v Holland to a weekly tenancy, holding that a weekly tenancy which begins on Saturday and ends on Friday may be determined validly by the landlord giving either a notice to quit on Friday or a notice to quit on Saturday, for in either case the notice is properly construed as a notice to quit when the current week ends, for a notice to quit on the last day of the current period and a notice to quit on the day after that day are both equally intimations that the last day of the current period is the last day of the tenancy.
    The council argued on these authorities that, if notice expiring on Monday was good, it could not be rendered bad by the addition of the words "by noon". The answer is that, while "Monday" without more can be construed (as the authorities show) as meaning the first moment of the day (the preceding midnight) "by noon on Monday" cannot be so construed, The council seek to escape from this conclusion by reading the notice as if it expired at midnight and contained a licence to continue in occupation until noon of the following day….. the words will not, however, bear this construction for the words "by noon on Monday" are expressed to mark the expiration of the notice itself and there is no room for a licence to remain on the premises after the expiration of the tenancy."

  39. In Portmadoc Urban District Council v Antoninzzi and others [1973] EEGD 318, a decision of the divisional court of Lord Widgery C.J., Ashworth and Bridge, JJ the tenants were tenants of the local authority under monthly tenancies, with provisions for termination by either party giving the other 28 days notice in writing, such notice to expire on a Saturday and the keys to be delivered to the council before 12 noon on that day. The council served notices to quit on the tenants. The notices were dated June 16th 1972, a Friday, and were sent by registered post. They were delivered the following day, a Saturday. The notices were to take effect 4 weeks from that date on Saturday July 15. The question on appeal to the Divisional Court from the Justices was whether the notices were effective to terminate the tenancies on the Saturday in question. The argument for the tenants was that the requirement to surrender the keys by 12 noon meant that termination of the agreement took effect at 12 noon. Because of that requirement there had not been a clear 28 days notice given by the council. "The tenants relied on Weston v Fidler (1903) 67 J.P. 208. That was a case in which certain premises were let on a weekly tenancy. By terms of the agreement the tenancy could be determined by a week's notice and the keys being delivered up before noon on a Saturday. In that case it had been held that notice to quit given before noon on a Monday was not sufficient notice. It was impossible to distinguish that case from the present one. The requirement to deliver up the keys was in unambiguous terms. It was a technical point, but the whole subject of notices to quit was riddled with technicalities, and it would make confusion worse confounded if the present case were distinguished from Weston v Fidler. In such circumstances the notices to quit were ineffective and the justices therefore had no jurisdiction to make the order. The appeals were allowed and the orders set aside."
  40. Reading that report it is clear that there is an error in quotation from Weston v Fidler. The quotation above suggests that the tenancy was to be terminated with a notice taking effect on a Saturday and the notice being given the previous Monday. It is clear that on any view 7 days notice could not have been given from Monday to Saturday. In fact, the account of Weston v Fidler given in the report of Newman v Slade [1926] KB 328, where the full terms of the tenancy in Weston were set out at p329, shows, the reference to a Monday must be an error. The account in Newman is as follows: "there where it was agreed that the tenancy might be determined by the giving of one week's notice by either party, a notice given on November 17 to expire on November 24 was held bad". That account could not refer to a notice given on a Monday for the following Saturday and must refer to a notice given on the previous Saturday for the following Saturday. Because it had to end at midday it did not give the requisite 7 days notice.
  41. Newman v Slade makes clear that if the notice takes effect at midday on the day of the week following the day on which notice was given this will not be the requisite 7 days notice, the whole of the final day until midnight being required for that purpose.
  42. It follows that where notice is given the common law rule is that the day on which the notice is received (is served) is ignored, and that the day on which the notice takes effect is counted "provided that the time available is to midnight on that day". In this case the time provided could extend, in accordance with the tenancy, only until midday. The argument that the notice must be taken to extend to midnight on that day cannot be correct – see Bathavon above, where this point is covered. A Notice to Quit has to take effect on the anniversary of the end of the tenancy (in this case a Monday at midday) and cannot take effect at a later point in time (Midnight on Monday). Mr Oliver submits that the notice must be read subject to s5 of the Protection of Eviction Act. I do not agree with him, save in so far as that Act provides for the minimum period of notice that can be given. Where, as in this case, there is a more onerous contractual term, that is the term which is relevant. I prefer the submission of Mr Barber, to the effect that the notice in this case actually given is 3 weeks 6½ days. While it may be going too far to say Mr Oliver agrees with this, he does go a long way towards making such a concession in his written submission on this point at paragraph 7 where he says "It is submitted that if the notice in question had stated "Termination- Monday 4 October 2010 at midday" then arguably the notice would have been bad because it would have fell (sic) 12 hours short of the required notice period. He repeats this in his final written submission where he says "The notice itself did not stipulate that it was to expire at midday on Monday 4th October. Had it done so, then it is arguable that the notice period would have been too short but there is no reference in the notice to midday". I do not agree with his submission where it continues on "the express term which refers to midday has to be read subject to section 5 of the Protection from Eviction Act 1977 in a case such as this where the notice is given by a tenant on a Monday and expires 4 weeks later on a Monday without the notice specifying the actual time of day".
  43. I conclude that in this case in order to be a good notice there had to be four full weeks notice expiring on Monday at midday. In this case there were not, and only 3 weeks 6½ days notice were given. That is not just a breach of the tenancy it is also a breach of the statute and the notice cannot be good.
  44. That is enough to dispose of this claim to possession. In case however that I am wrong about that I must go on to consider the other question in the case. The remainder of this Judgment is written therefore on the basis that I am wrong about the Notice to Quit, and on the basis that the notice to quit was sufficient to terminate the contractual tenancy.
  46. If the tenancy has been determined has the defendant nonetheless got a defence to the possession proceedings under Article 8 of the ECHR.

  47. The tenancy has been brought to an end by the Notice to Quit. There is no way open to the Defendant in these circumstances to defend the action for possession other than by the HRA route. It is right that before I deal with this part of the case, and the law, that I set out the broad positions adopted by each party. I will only deal with the law in very general terms where there is no issue between the parties.
  48. For the defendant it is submitted:

    (1) That the actions taken constitute an interference with the defendant's home.

    (2) That there has been an interference with her right to respect for her home.

    (3) That such interference albeit in accordance with the law does not pursue a legitimate aim

    (4) That such interference is not necessary in a democratic society.

    For the claimants their position is:

    (1) They accept that the case concerns the defendant's home and constitutes an interference with her right to respect for her home.

    (2) They do not accept that that interference is not in accordance with the law and assert that it does pursue a legitimate aim.

    (3) They submit that the steps taken are proportionate.

  49. The issues before me are therefore:
  50. (a) Is the interference which would be caused by making a possession order in this case in pursuit of a legitimate aim, and

    (b) are the steps taken proportionate and necessary in a democratic society.


  51. I have been referred to the considerable history of the development of the law in this area. I have been assisted by Mr Barber's very helpful skeleton and submissions on the development of the law, and the current state of the law. I do not think that there is really any dispute about the law, which following the ECHR decision in McCann v United Kingdom (App no 19009/04) [2008] ECHR 19009/04 and the two following decisions of the Supreme Court Manchester City Council v Pinnock [2010] UKSC 45 and Mayor and Burgesses of Hounslow v Powell [2011] UKSC 8; is now settled.
  52. (1) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end.

    (2) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (ie one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues.

    (3) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with.

    (4) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains- for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.

    (5) Although it cannot be described as a point of principle, it seems that the EurCtHR has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the Applicant has no right under domestic law to remain.

    The above propositions are direct quotes from the Judgment of Lord Neuberger in Pinnock at para 45.

    (6) Where a court is asked to make an order for possession of a person's home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making the assessment, to resolve any relevant dispute of fact. (Pinnock para 49)

    (7) It seems both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v Birmingham [2009] 1 AC 367, para 122, there may be more cases than the EurCtHR or Lord Bingham supposed where art 8 could reasonably be invoked by a residential tenant……. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden assisted housing (Pinnock para 52/53)

    (8) Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So too is the right - indeed the obligation – of a local authority to decide who should occupy its residential property. ….. Therefore in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.(Pinnock para 54).

    (9) If domestic law justifies an outright order for possession, the effect of art 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. (Pinnock para 62).

  53. Once again the evidence before me was not really in dispute and the version that I set out represents my findings on the evidence. From the claimant I heard from Mrs Fox the Housing Solutions Manager for the council. The above authorities make clear it is not for the claimant to set out their case on need for their housing and for its re-allocation to families. I was however given (and rightly given) some background. The claimants wrote to the defendant on 27th September 2010 informing her that the joint tenancy would end on 4th October 2010 by reason of the notice given by Mr Bailey. Clearly there had been some communication prior to that letter because it states that the council understand that she wishes to continue as sole tenant of the property, and that an appointment has been made to see her on 4th October 2010. That letter (132) was written by Mrs Redfern, the person, acting alongside and in consultation with Mrs Fox's assistant manager, who made the initial decisions in this case, and who conducted the meeting on 4th October. At the meeting on 4th October the defendant was informed that she was likely to lose her home and therefore she wrote the letter at (135) setting out her particular reasons for wishing to remain in that property. That letter sets out that she has spent money and time on the property, that she and her son are only just recovering from the actions of her husband from the time when they separated (which from her own account and from newspaper reports she put before me included the threat of arson), and that her neighbours have been supportive and are aware of the risks from her ex husband, and protective about him. She sets out her concerns that if she moves the neighbours at any new property will not know him and will therefore not be in a position to phone the police if he loiters in the area as the present neighbours have done. She attached the report of the magistrates proceedings for harassment (139) and also a copy of the order they made (136). Questions were asked about that letter and whether or not it had been replied to. Mrs Fox could not point to a written reply and says that it would have been her assistant manager Sarah Bowskill who would have dealt with it. The letter follows the meeting on 4th with Wendy Redfern and on balance of probabilities predates the decision letter of 19th October 2010 when the council inform the defendant that she will not be allowed to remain in her home and request that she fill in an application form if she wishes to bid for alternative accommodation.
  54. At around the same time as these letters (presumably after receiving notification of the decision on 19th October) the defendant had a telephone discussion with a member of the housing team (DM Watton) when she again expressed her unhappiness about not being eligible to stay in her home (134). That same file note also records a telephone conversation with her son who was likewise very unhappy about the situation.

    The final letter in the tenancy file is an exchange between Toby Perkins MP and the council dated 25 November 2010, and acknowledged and then substantively replied to on 22nd December 2010.

  55. In her oral evidence Mrs Fox was asked about the house in question. She described the property as a large three bedded house with parlour, so it had two reception rooms and a kitchen. It is on a major thoroughfare not a cul de sac (though my understanding is that it is set back on an access road beside the major road) and is opposite the local primary and secondary schools. There is a considerable demand for such houses and there are currently 571 households on the waiting list for such a property.
  56. The first question addressed in oral evidence concerned the policy on permitting an ex tenant to remain in their property. Since 2009 there has been a policy not to remove any ex-tenant (regardless of the extent of their overhousing) who has been living in the property in question for more than 15 years. The policy was not in place at the time of the move in 2002 and so was not something of which the defendant should have been warned. Before the policy change the council always applied the McGrady rule (notice given by one of two joint tenants determined the tenancy and then the council could make a new decision on whether or not to rehouse the other joint tenant) and dealt with the rehousing question on the basis of their allocation policy.
  57. Asked about the criteria which would have been considered in this case Mrs Fox said that they would have looked at whether the property was too large for the defendant and her needs, and also whether she was eligible (in allocation terms) for that property. Obviously they would have considered her extenuating circumstances but here they did not feel they were determinative in her favour. They would only have allowed her to stay if there were exceptional circumstances – such as having 2 adult children with learning difficulties.
  58. In this case in reaching her decision (and she accepted that although the decision not to offer a further tenancy of this property was concerned was a decision taken in her department, the decision to commence possession proceedings was hers alone) she said had considered all the evidence and decisions made in her absence and she accepted that at any point in time she could have decided not to proceed or continue the proceedings. As she told me she had the power to determine if there were exceptional circumstances. She came back from maternity leave 2 weeks before Christmas 2010 at that stage working 4 days a week and started working again full time from 1st January 2011. She was asked whether she was aware than in McGrady it was usually the case that the female partner and children left often because of violence of the male involved, and the notice to quit was encouraged by the local authority (in those cases from the female) in order to get the property back for her and the children. She said she was aware of the principle of the case but not the facts. She said that in the case being dealt with she had applied the principle and then the particular circumstances of the case. She had looked at the current problems as reported and looked at the safeguards and social care involved and applied the principles. Asked about the fact that it was Mr Bailey who had served the notice to quit she said it was her understanding that at that point there were rent arrears of £400 and that he would have been advised to bring the tenancy to an end. She had no reason to consider there was any issue and she applied the council's policy.

  59. The defendant gave evidence before me and told me that she worked for the Ridal House Nursing Home. Her work was about 20 – 25 minutes walk from her current home, and she tended to walk or sometimes if raining to get a taxi. The home she is living in has been her home since 2002, she has two sons, the youngest lives at home and the elder moves out when he can afford to (and has done so on 4 occasions, each time returning home). She wants to be able to keep a bedroom for each of them.
  60. It was put to her that she did not need a three bedroomed house and that she could easily manage in a 2 bedroomed flat. She said that she did not want to live in a 2 bedroomed flat and that if she was ordered to leave rather than do this she would rent a house privately. She was asked if in fact there was alternative accommodation which she had been shown in the area of her work and she said that she had only seen 2 bedded flats and that she would not live in a flat, that it would not be a home for her. She was then asked specifically about 7 Chepstow place, a 2 bedded flat in the area to which she replied that she knew no-one living in that area. She accepted that it was a walkable distance but said she knew no-one living within 5 minutes of the property and that she did not personally know anyone living around that area.
  61. It was suggested that with only Thomas living full time at home a 2 bed flat would be adequate for her even when Luke occasionally returned home but she said it would not really be adequate. It was suggested she would be more secure from Mr Bailey than where she was because he would not know where she was and she said this was not the case, he knew people who knew her, that he would follow her and text her to say that he knew where she was living.


    The Defendant

  62. For the defendant in addition to his skeleton argument Mr Barber submitted that this was the only area of possession proceedings in social housing where the court does not have to look at the tenant's circumstances with the exception of the law of trespassers. In the law relating to occupation of property as a home it is the only area with an unencumbered right to evict. Where there is a secure tenancy the council would have to give notice, have the correct grounds and then succeed on the basis of reasonableness. This is a case which allows the local authority an opportunity to go outside the statutory scheme.
  63. This case is brought on the basis of gateway (b) in Leeds v Price [2006] UKHL 10 per Lord Hope at paragraph 110. The decision in that case has to be looked at in the light of McCann v UK and specifically paragraphs 49 -53 of that case. Judicial review is not a proper forum (paragraph 53) and there must be a proper factual hearing.
  64. Mr Barber then examined Pinnock and made clear that that case concerned a "demoted" tenancy. In that case someone who had previously been a secure tenant had breached the terms of his secure tenancy. Once a demoted tenancy was established (by court order following a hearing) then if the council wanted to seek possession it could only do so if it established that it had followed the correct procedure and obtained a court order for possession. The Court, under s143(D) (2) of the Housing Act 1996 "must make an order for possession unless it thinks that the procedure under s143E and 143F has not been followed". The essential question in Pinnock was whether or not Judge Holman in the County Court had complied with the article 8 rights of the tenant by only allowing him to question the procedure followed by the local authority by way of quasi judicial review in the County Court (as HHJ Holman decided) or as Stanley Burnton LJ (with whom the Mummery and Lloyd LJJ agreed) that the review of the County Court was even more limited – simply to see whether the procedure was correctly followed, if not – the court must not make an order for possession. If however the correct procedure has been followed the court must make an order for possession. In the event the Supreme Court albeit upholding the orders below did so for different reasons, and held that a tenant was entitled to an opportunity to have the proportionality of the measure determined by a court, and, if necessary for that purpose, of having any relevant issue of fact resolved.
  65. Albeit he had to concede that the tenant in Pinnock and in effect the tenants in Hounslow v Powell were none of them ultimately successful in their appeals in retaining their homes by reliance on article 8, Mr Barber says that they are very different cases to the case before me (in Leeds v Hall the local authority had conceded a regular tenancy but had it not done so his appeal would have been dismissed (Paragraph 68); in Hounslow v Powell had the offer of suitable alternative accommodation not been made the court might have found grounds for remitting to the county court to consider the question of article 8 proportionality (Paragraph 66); and in Birmingham v Frisby the council had made no offer and the court dismissed his appeal (Paragraph 70)).
  66. Above all he submits that there is a difference where a notice to quit involves the loss of right to remain without a judicial process. In this case he submits:
  67. (1) Mrs Bailey is not at fault.
    (2) She has been the subject of not statutory procedure to deal with her occupation.
    (3) There have been no previous proceedings.
    (4) She is a former secure tenant who has lost her secure status.
    (5) The application of the Local Authority allocation policy is irrational.
    (a) Why a 15 year cut off rather than any other period.
    (b) Why no provision for a secure tenant in excess of 15 years where the only reason she had not got 15 years continuous in the one property was that she had moved to assist the council in their refurbishment.
    (c) She was told by the council that she had to take a joint tenancy with her husband.
    The rules that are applied in this case are irrational AND unreasonable.
  68. He asked me to read and apply paragraph 32 of his skeleton argument. Without I hope doing it injustice I paraphrase his more elegantly expressed submissions in that paragraph as:
  69. (a) Hammersmith v Monk can no longer survive the full effect of an article 8 challenge by a public sector joint tenant. While it may be proportionate to grant possession of introductory, demoted and homelessness regime tenancies it will no longer except in exceptional circumstances be proportionate to allow possession where there is no fault on occupier's part. Accordingly the converse of the ratio in Pinnock should apply.

    (b) Harrow London Borough v Quazi [2003] UKHL 43 was departed from in Pinnock but Pinnock does not provide general guidance in relation to this type case, it deal only with demoted tenancies. Powell does not mention Quazi or the position of joint tentants.

    (c) In this case Mrs Bailey was a secure tenant whose position was determined not by an order of the court following review, but by a violent ex partner and with no fault on her part.

    (d) Although put as being a decision on effective housing management this is not such a case. The case is based purely on a rule of law outside the traditional principles of social housing.

    (e) The decision not to renew and the housing policy applied are irrational in the judicial review sense. The decision to evict is neither reasonable nor proportionate.

    (f) The circumstances in which Mr Bailey gave notice are murky, and in procuring the service of the notice to quit and taking possession proceedings the Claimant is complicit in his actions.

    (g) The circumstances in which Mrs Bailey agreed to a joint tenancy are also questionable.

  70. Finally he submits that in fault cases it is entirely understandable that the courts have come to the decisions that they have. This case is however different and should be looked at from the other way around. He summed up by submitting that in this case, although I clearly could consider others on the waiting list, in the circumstances where one tenant of two joint tenants has terminated the contractual rights of the other without notice it had to be an exceptional case for me to evict the defendant, rather than the other way around.
  71. For the Claimant in closing it was submitted as follows:
  72. The two issues to be determined are first is a possession order in accordance with the law and second is it proportionate.

    It was submitted that Quazi at para 69 was authority that the article 8(1) right to "respect for his home" did not involve a guarantee to a home but just guaranteed the right to respect for the home in which the person is living. That right is qualified by art8(2) "no interference save as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country. … He submitted in this case that it was necessary for the economic wellbeing of the country and the efficient management of housing stock.

  73. Mr Oliver examined McCann which he described as being on all 4's with this case although he conceded in that case that the husband had been domestically violent and threatening to the wife.
  74. This present case was he said the first case that he was aware of to be argued on the point, and he submitted that it was not exceptional.

    He pointed me to paragraph 52 of Pinnock where the Lord Neuberger said that he preferred to look at the question of exceptionality in a rather different way "whether it was a proportionate means of achieving a legitimate aim", and where he pointed out that the factors which will usually support an order for possession. He then referred me to paragraphs 60 – 64 and the general points made by Lord Neuberger.

    He turned to time for possession and said that whilst generally a 14 day order had to be made it could be postponed for 6 weeks.

    In this case he submitted it was highly relevant on the question of proportionality that the local authority was prepared to secure alternative accommodation for the defendant in the event that she had to move.

    He reminded me that the threshold for raising an arguable case on proportionality is high (para 35 of the Judgment in Powell), and he pointed to para 111 where in the judgment of Lord Phillips it was said that it is not easy to envisage any issue of fact that the Defendant could raise that would constitute a substantial ground for making a proportionality challenge where the local authority simply wishes to relocate in the interests of more efficient allocation of limited and fluctuating housing stock.

    Finally, in reply to the submission that the 15 year period in the allocation policy was irrational and unreasonable he said that it was a perfectly reasonable policy which recognised that where a person was well established they would normally be granted a new tenancy. This, he submitted, is not that case.


  75. I have considered both submissions and the authorities cited to me. This is a case where the tenant has (as Mr Barber points out) had a secure tenancy which she could only lose on one of the grounds in schedule 2 of the Housing Act 1985. Had she received advice she could have made an application for a transfer of tenancy under s53 and schedule 7 to the Family Law Act 1996, which would have been almost certain (and certain by the time of the Notice to Quit in this case) to succeed. In this case the serving of notice by one joint tenant terminated the contractual tenancy and allowed the claimants to claim possession. They could not have done so otherwise under any of the grounds in schedule 2 of the HA 1985. The serving of notice to quit was an act over which the defendant had no control. Once it had been carried out her rights to her home were limited to those she could assert under the Convention. I am satisfied that the local authority encouraged, once he had appeared at their door, Mr Bailey to go through the procedure of serving a notice to quit. While they may not have told him that it was the only way to deal with the problem that he had, it seems very unlikely on the evidence that I have heard that they would have suggested any other method. Clearly another method would have been for him to join with the defendant in making a consent application under s53 and schedule 7 to the Family law Act 1996, but this avenue would not have permitted the claimants to regain possession. Dealing with his request as they did meant that the defendant's rights to remain in her home were subject to their decision as to whether or not she should be allowed to do so, rather than her remaining in the home as of right - (as they describe it the McGrady situation).
  76. I have considered the submission of Mr Oliver that this case is on all fours with McCann. Whilst superficially that may be the case, there is in fact an important difference between the cases. Apart from the difference conceded by Mr Oliver (that the occupier against whom possession was being obtained was the allegedly violent one) there was the fact that factual matrix meant that in that case the local authority had a potential ground (Ground 2(b) of schedule 2 HA 1985) under which he was in any event at risk had the notice to quit not been served. Although in McCann the tenant was successful in obtaining a finding that he had been deprived of his home without the right to challenge the proportionality of the action taken against him, what he was found to have lost was the opportunity to question the case that the council would have had to put forward. Whilst therefore accepting that the facts are similar they do differ in materially. In this case, absent the notice to quit, the local authority had no grounds for possession.
  77. Mr Oliver then submits that I should follow the guidance of Lord Phillips at paragraph 111 of Powell because in this case, as in that case, alternative accommodation will be made available. The cases are however not the same. Of course the factor of alternative accommodation will carry weight, but not the same "almost inevitability" that that case envisages. The circumstances being considered in that case are the reallocation of a limited and fluctuating housing stock, where housing is provided to someone who is homeless and who, far from being granted a secure tenancy, has only been granted a licence under the homelessness regime covered by Part VII of the Housing Act 1996. There are clear policy reasons why such a licence is not secure. It is usually supplied in an emergency, and the local authority need to have the flexibility to be able to manage their housing stock in those circumstances (para 10 of the Judgment). So in those cases it will rarely if ever be possible to take an article 8 point where alternative accommodation is offered. In this case however the defendant had been a secure tenant of the Claimants since 1996 and of this property since 2002.
  78. Finally he submits that the 15 year policy is a reasonable and rational policy. I accept that some policy on these lines is sensible and rational but it does not make sense to me that there are not exceptions made to it. A 15 year period can only be arbitrary. The length of time a person has been established in their home, length of time that the defendant has been a tenant of the council in total, and the reasons why there is not a continuous period if the whole period exceeds the magic 15 years should all, in my judgment be matters that the council should be able to take into account. If a fair result is to be arrived at then all these matters need to be weighted (no doubt with other matters as well) to arrive at a sensible method of determining whether or not the allocations policy should trump all. But, by itself this would not be a point which I would determine against the claimants. They are entitled to take length of time in this property into account, and I do not consider that the 15 year rule is irrational or unreasonable. They could, in the discretion of Mrs Fox, who explained to me that the final decision was hers, have taken account of the previously occupied house or other factors. That factor is in my judgment something I am entitled to take into account when weighing the balance of what is proportionate in this case.
  79. The test that I have to apply is: Was seeking possession in this case proportionate means of achieving a legitimate aim? Was it necessary in a democratic society. The guidance that I am given in Pinnock at paragraph 52 is that where (as here) the person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, enable the authority to comply with its duties in relation to the distribution and management of its housing stock.
  80. Of course I accept the enormous demands on the Local Authority for their housing, and also the need that they have for family houses of the nature of the property in this case and in the area in which it is situate. I accept that an order for possession will inevitably serve to vindicate their property rights. Their need to prioritise and allocate housing doing their best to reach consistent fair decisions is recognised in the case law. In this respect the latitude given to authorities who are carrying out that exercise (and I am considering here the judgment of Lord Bingham in Quazi at paragraph 25 where he referred to the adoption by Srasbourg of a very pragmatic and realistic approach to the issue of justification) is very wide. It is this question which is central to this case. Of course the Council are apparently justified in seeking possession of a home occupied only by 2 adults (and one on a part time basis) which is suitable for a family with young or growing up children who have a need for the space (and garden) which this home could provide. How can they be said to be unreasonable when they have a waiting list for such accommodation and where, if the allocation was from a clean sheet of paper, no doubt the defendant would not even begin to satisfy the criteria for occupation of this house. The balance, it can then be argued, weighs even more heavily against her when the availability and offered provision of a 2 bedroom flat is taken into account.
  81. Against that I have to look at the submissions made on the defendant's behalf by Mr Barber at paragraphs 41 and 42 above. In considering those submissions I have to look at them in the light of the fact that the defendant, as a consequence of the actions of her husband (to an extent advised by the council), is no longer a secure tenant and indeed has no contractual right to remain in her home. I have to look at the fact that if she has no rights to her home then that is only because of a process over which she had no control, and of which she had no notice. A person's home, with security of tenure, is something of immense value, and deserving as the convention requires, of respect.
  82. I have already said that I am not prepared to hold that the 15 year rule is irrational, but that I would prefer it had the possibility of exceptions. I have reservations about his submission set out at paragraph 51 (a) above, that Monk cannot survive the full effect of an article 8 challenge. It remains the law and I must apply it (as was accepted by Mr Barber). I observe however that the more unfair its application appears on the facts of a case the more likely it is that the reliance on it will not be proportionate. Ultimately in this case I have looked at whether the council have in fact given proper weight to the Monk circumstances in which the house fell into their hands, and whether they have considered the prejudice suffered by the defendant as a result of that fact, as against other tenants who retained security by other permitted routes. I have looked at the fact that the proceedings come about really through no fault on the part of the defendant, and at the fact that she had no possibility of intervening once the husband went to the council. In my judgment their having the possibility of obtaining possession in this case was a windfall. Parliament can consider enacting law which will enable under occupied property to be recovered, and enable re-allocation of property according to need, and allow tenants to be moved from one property to another. If that occurs all local authority tenants will have their situations dealt with fairly and on the same basis. Until that happens Local Authority tenants have security in accordance with the present law. The basis of that security and the distinctions between secure and non secure tenants are set out at paragraph 10 of the Judgment of Lord Hope in Powell. I consider that I must place in the balance the fact that the council in this case would not be in the position that they are now in but for the notice given by Mr Bailey.
  83. I was not assisted by submission (b) in paragraph 51 above. I have found the guidance in Pinnock and in Powell of assistance in this case, and have sought to apply that guidance in this judgment. I accept that neither decision relates to a "Quazi" situation.
  84. I am not sure that I have fully understood (d) of paragraph 51. It seems to me that the council, having appreciated their good fortune in being able to regain possession, have indeed sought to apply their allocation principles, and to make a decision in line with effective housing management. I have taken the assertion that the case is based purely on a rule of law outside the traditional principles of social housing to refer to the rule following Monk.
  85. With those qualifications I accept the submissions made by Mr Barber. In looking at whether it was necessary in a democratic society to apply for possession and whether it was a proportionate means of achieving a legitimate aim, I have to accept that the council was in a strict sense legally entitled to do so, and that they were not motivated by bad faith and were simply pursuing the goal of satisfying the needs of those on their housing list. I am not satisfied however that their decision to seek possession was however either necessary in a democratic society or proportionate in the circumstances of this case. This defendant had lived in this property since 2002, had lived in a previous council property since 1996, and had moved from that property mainly at the behest of the council. Had she not moved and remained in her previous property she would be secure under the 15 year rule. She has spent money on this property and any move involves further expenditure of money. In a case such as where her husband had given the present notice in circumstances where she could do nothing about it (and did not even have notice of it until either it had taken effect or possibly very shortly before) I do not find it reasonable for the council without more to rely on that notice. Where a tenant is without blame it seems to me that the council should look and see whether otherwise they might be entitled to obtain possession. If they have grounds within the statutory regime then it is quite right that they should do so, and any challenge to their rights on article 8 grounds in my view will be met by their rights following the notice to quit, as well as the statutory grounds entitling them to possession. Where there are no statutory grounds available to them (as here), and where there is no fault on the part of the defendant, and the defendant had previously had and enjoyed security of tenure without complaint, an order for possession would in my view breach the defendant's article 8 rights.
  86. In my Judgment the council decision to take possession proceedings and to rely on the notice to quit in this case is not proportionate.
  87. My decision that the time given by the Notice to Quit was insufficient and In those circumstances I dismiss this action for possession. As the second part of my Judgment makes clear if I am wrong on that ground then I dismiss the action for possession on the basis that the action is not proportionate and is a breach of the art 8 rights of the defendant.

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