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Cite as: [2011] EWHC 2857 (QB)

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Neutral Citation Number: [2011] EWHC 2857 (QB)
Case No: QB/2010/0774

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
3 November 2011

B e f o r e :

THE HONOURABLE MR JUSTICE EADY
____________________

Between:
MR BRIAN HOLMES

Appellant
- and -


WESTMINSTER CITY COUNCIL
Respondent

____________________

David Carter (instructed by Gillian Radford & Co) for the Appellant
Jon Holbrook (instructed by Devonshires) for the Respondent
Hearing date: 21 October 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr Justice Eady :

  1. On 21 October 2011, I heard an appeal against an order made on 18 November 2010 in the Central London County Court by Mr Recorder Widdup, who struck out the defence of Mr Brian Holmes to a claim for possession of his flat at No 128 Bravington Road, London W9. He granted possession on the same occasion. The claim was brought by Westminster City Council, which had granted him a non-secure tenancy in March 2005 pursuant to its acknowledged duty under s.193 of the Housing Act 1996. In the first instance, permission was refused by Griffith Williams J in writing but, following an oral hearing, Lindblom J granted permission on 27 June of this year.
  2. Mr Holmes is in his early fifties and has a history of mental health problems. He has from time to time been diagnosed with severe anxiety, obsessional behaviour, depression, paranoid personality disorder, seasonal affective disorder, alcohol dependent syndrome and possibly also post traumatic stress disorder.
  3. It was against this background that Mr Holmes had applied to the Council in 2004 for assistance as a homeless person in accordance with the provisions of Part VII of the 1996 Act.
  4. The Council notified Mr Holmes in June 2009 that it had ceased to be subject to the statutory duty under s.193 following what is known as a "discharge decision". This had been based on his failure to attend two appointments he had been offered for the inspection of his accommodation. The Council was asked to review that decision. Eventually, on 28 January 2010, the discharge decision was withdrawn following the review. Meanwhile, however, Mr Holmes had been served with notice to quit following the discharge decision and, in August 2009, these proceedings were brought by the Council with a view to obtaining possession, but they were adjourned to await the outcome of the review.
  5. In the light of the withdrawal of the discharge decision, Mr Holmes' solicitors wrote on 8 February 2010 and invited the Council also to withdraw the claim for possession. Unfortunately, two days later, there was an incident at the premises when two housing officers visited Mr Holmes and, on their account, were assaulted by him. In the light of this development, the Council's solicitors informed those acting for Mr Holmes on 24 February 2010 that the decision had been taken to resume these proceedings for possession.
  6. A defence was filed on Mr Holmes' behalf in July 2010, whereupon the Council applied in the following September for possession on a summary basis, alternatively for some or all of the defence to be struck out. In due course, on 18 November of that year, Mr Recorder Widdup made a possession order on a summary basis, as the Council had requested, and he struck out Mr Holmes' defence.
  7. It is necessary to have in mind the important distinction, which is inherent in the statutory framework, between the safeguards available to secure tenants and those relevant in the case of non-secure tenancies, such as that of Mr Holmes. Parliament made provision for secure tenancies in Part IV of the Housing Act 1985 and an order for possession of premises let under such a tenancy may only be made if the relevant landlord has established at least one of the grounds for possession identified in Sch 2 of that Act.
  8. In accordance with Sch 1 para 4 of the 1985 Act, a tenancy is not a secure tenancy if granted in pursuance of any function under Part VII of the Housing Act 1996 (unless the relevant authority has notified the tenant that it is to be regarded as a secure tenancy). A non-secure tenancy may be determined on notice to quit being given by either party thereto. Provision was made in the Protection from Eviction Act 1977 for the prohibition of eviction from residential property without due process of law. So far as a non-secure tenancy is concerned, it is not lawful for the owner to enforce possession otherwise than by proceedings in court: see s.3(1) and s.8. It was pointed out in the Court of Appeal in Mullen v Salford City Council [2010] HLR 35 at [18]:
  9. "Subject to the right to a review in circumstances where the local authority decides that its homelessness duty has ceased (see s.202 of the 1996 Act), the local authority is not required by the legislation to make out the grounds required for the termination of a non-secure tenancy when seeking possession from an occupant whom it has housed pursuant to its homelessness duties. The only procedural protections provided by statute are those contained in the Protection from Eviction Act 1977 (the 1977 Act), and in particular the requirement to obtain an order of the court in order to obtain possession: see s.3(1) of the 1977 Act. Some debate took place before us as to whether a local authority was bound to give reasons when serving a notice to quit and we were referred to the Notices to Quit etc (Prescribed Information) Regulations 1988, setting out what needs to be contained in a notice to quit and there is no reference to giving reasons."
  10. I should also bear in mind the specific procedure laid down in CPR 55 which governs possession claims in general. The intention is that such claims will normally be determined without the need for a trial; that is to say, on a summary basis, where the judge is only expected to read the written evidence submitted: see CPR 55.8. Consequently, it is not contemplated that the ordinary procedure for obtaining summary judgment should apply in such cases: see CPR 24.3(2).
  11. After the CPR came into effect in April 1999, and also after the relevant statutory provisions identified above were enacted, the Human Rights Act 1998 was implemented in October 2000. It then became necessary, so far as possible, for all legislation to be read and given effect in a way that is compatible with Convention rights. Furthermore, it is unlawful for a public authority, including a court of law, to act in a way that is incompatible with such a right: see s.6 of the 1998 Act. It is clear that this has had a considerable impact in the context of claims for possession and, particularly, by reference to the rights protected under Article 8 of the Convention:
  12. i) Everyone has the right to respect for his private and family life, his home and his correspondence.

    ii) There shall be no interference by a public authority with the exercise of this right except such 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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  13. It was recognised by Lord Bingham in Kay v Lambeth London Borough Council [2006] 2 AC 465 at [35] that:
  14. "Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8."

    Lord Bingham did not think it appropriate to attempt to define what might be considered as "highly exceptional" circumstances and observed that the practical experience of county court judges was likely to prove the surest guide. It was necessary, however, always to have in mind the stringency of the test. He went on to summarise the practical position so far as possession proceedings were concerned in the future, at [39]:

    "(1) It is not necessary for a local authority to plead or prove in every case that domestic law complies with article 8. Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with article 8.
    (2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds.
    (3) The two grounds are: (a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and (b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6.
    (4) Deciding whether the defendant has a seriously arguable case on one or both of these grounds will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question.
    (5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order.
    (6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 the judge should consider whether it may be appropriate to refer the proceedings to the High Court."
  15. There have been other authoritative cases since that decision and it is, in any event, necessary to bear in mind that Lord Bingham was in certain limited respects to be regarded as being in the minority in Kay. The approach of the majority is to be found in the speech of Lord Hope at [110] and it was subsequently redefined in Doherty v Birmingham City Council [2009] 1 AC 367. The only difference between Lord Bingham and those in the majority related to proposition (3)(b), as described above, and the distinction was described by Lord Scott in Doherty at [70] as being "slight though important".
  16. Although Lord Bingham contemplated that the personal circumstances could be raised and considered directly by the court, the majority view appears to have been that the court should only consider, as a matter of public law, whether the decision of the local authority in question was lawful. Lord Scott put the matter in this way:
  17. "The personal circumstances of the defendant might well be a factor to which, along with other factors relevant to its decision, a responsible and reasonable local authority would need to have regard."

    See also Mullen v Salford City Council, cited above, at [64].

  18. In this latter case, Waller LJ posed the question at [65] as to when a gateway (b) defence would be available and how it was to be dealt with. With reference to the notion of "exceptional" or "highly exceptional", he observed that circumstances which Parliament must have contemplated as likely to be present in the context of a particular statutory scheme could hardly be so categorised:
  19. "Thus for example it would be contemplated that difficult questions of fact as to whether antisocial behaviour had occurred or not would be something that Parliament would contemplate as likely. A local authority would not have to conduct a full inquiry to establish the truth or otherwise of such allegations knowing that those are just the situations in which getting witnesses to attend and give evidence would be difficult. With allegation and counter-allegation the local authority has to take a decision and unless it could be shown that it was arguable that no reasonable authority with the duties it had to perform in relation to managing its social housing could have taken the decision, there should be no question of adjourning the case until a tenant had brought judicial review proceedings."
  20. His Lordship drew particular attention at [66] to the situation arising where tenancies have been granted, as here, under the legislation governing homelessness. He pointed out two specific differences. In a judicial review issues would have to be addressed in the county court and, secondly, the relevant legislation does not contain any review procedure in relation to the facts which give rise to a decision to serve a notice to quit. He went on at [67] to emphasise that, where a notice to quit has been served on a non-secure tenant occupying accommodation as a homeless person, it would take "highly exceptional circumstances" for there to be a gateway (b) defence. He referred to the case of Barber v Croydon London Borough Council [2010] HLR 26 and commented that it might provide such an example, since it seemed that the local authority had been unaware when it served a notice to quit of the occupier's mental illness and of the risk to his life if moved. As Patten LJ observed at [45], the Council behaved in that case as though its policies on vulnerable people had no application and the decision reached had been one which no reasonable housing authority, faced with those facts, could have taken. Anything less than that kind of risk, he said, would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation.
  21. My attention has been drawn to the recent decision of Manchester City Council v Pinnock (Secretary of State for Communities and Local Government and another intervening) [2010] UKSC 45, where it was noted at [45] that:
  22. " the following propositions are now well established in the jurisprudence of the European court: (a) 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: McCann v United Kingdom 47 EHRR 913, para 50; Cosic v Croatia given 15 January 2009, para 22; Zehentner v Austria given 16 July 2009, para 59; Paulic v Croatia given 22 October 2009, para 43; and Kay v United Kingdom given 21 September 2010, paras 73-74. (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e., 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: Connors v United Kingdom 40 EHRR 189, para 92; McCann v United Kingdom 47 EHRR 913, para 53; Kay v United Kingdom, paras 72-73. (c) 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: Zehentner v Austria, para 54. (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact 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. Although it cannot be described as a point of principle, it seems that the European court has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continue possession where the applicant has no right under domestic law to remain: McCann v United Kingdom 47 EHRR 913, para 54; Kay v United Kingdom, para 73."
  23. It was also recognised by the Supreme Court at [49] that the minority view in the House of Lords in Kay should now be accepted and applied, not least because of the decision in Kay v United Kingdom, and that:
  24. " If our law is to be compatible with article 8, 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 that assessment, to resolve any relevant dispute of fact."

    European Court jurisprudence requires the court considering a challenge to have the power to make its own assessment of any relevant facts. Wherever possible, the traditional review powers of the court should be expanded so as to permit it to carry out that exercise.

  25. The position was summarised at [74]:
  26. " Where it is required in order to give effect to an occupier's article 8 Convention rights, the court's powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view."
  27. As to the test of "highly exceptional case", the matter was addressed in Pinnock at [51] to [52]. The conclusion was reached, despite apparent approval in Strasbourg of the test sanctioned by Lord Bingham in Kay, that it was unsafe and unhelpful to invoke exceptionality as a guide. That is because exceptionality may be regarded as an outcome rather than a guide towards reaching a conclusion. Moreover, there may be more cases than the European Court or Lord Bingham had supposed in which Article 8 could reasonably be invoked by a residential tenant: see also the observation to that effect by Lord Walker in Doherty v Birmingham City Council, cited above, at [122].
  28. The Supreme Court went on in Pinnock to express the position somewhat differently:
  29. "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 refurbishment 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. Furthermore, in many cases other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers."
  30. The Court went on to observe at [53] that:
  31. " the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it."
  32. It was also recognised at [54] that unencumbered property rights " are of real weight when it comes to proportionality". The conclusion was reached, by reference back to the speech of Lord Bingham in Harrow London Borough Council v Qazi [2004] 1 AC 983, 997 at [25]:
  33. "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."

    The difficulty for practitioners, and indeed for judges hearing cases day in and day out in the county court, is to be able to recognise which factors will "tell the other way". This quandary is, perhaps, of particular significance where there is no direct guidance in the circumstances from a particular domestic statutory framework.

  34. What was said in Pinnock about the type of situation which arises, as in the instant case, where possession is sought against a non-secure tenant? It was addressed at [57]:
  35. "The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person's home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court's obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the county court."

    How much in terms of practical guidance such judges will derive from this passage remains to be seen.

  36. Shortly thereafter, the Supreme Court returned to these problems in Hounslow London Borough Council v Powell [2011] UKSC 8. (This concerned the conjoined appeals from the Court of Appeal's decision in the Salford City Council case, although Mullen itself did not go any further.)
  37. The judgment was handed down on 23 February of this year and thus represents the latest pronouncement of the Court on these important issues. It was held that there was nothing in the homelessness provisions of Part VII of the 1996 Act that would expressly, or by necessary implication, prevent the court from refusing to make a possession order if it considered that it would not be proportionate to do so. Thus the question for the court in a homelessness case would be whether the making of an order for possession would indeed be legitimate and proportionate: see specifically at [38], [39], [71] and [122].
  38. It is urged upon me in these circumstances that at least it can now be said that the principles to be applied in this area of law are no longer "in a state of development" and that it becomes, as so often in the context of the Human Rights Act, a question for the individual county court judge to carry out a balancing exercise on the facts of each case, so as to arrive at a determination on proportionality.
  39. The passages specifically dealing with homelessness in the Powell judgment are to be found at [34] to [43] and in [106] to [121]. It was there recognised that the threshold for raising an arguable case on proportionality is a high one which would succeed in only a small proportion of cases, although I suppose it may be said, again, that this is in its nature a statistical proposition about "outcomes", rather than one which offers guidance in particular cases. There does appear to have been, nonetheless, some consideration of the day to day difficulties for a judge confronting a long list of possession cases. At [35], it was said:
  40. "Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities. Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order."
  41. To make a judgment on proportionality the court needs to consider what are the legitimate aims, within the contemplation of Article 8.2, upon which the local authority may seek to rely and what types of factual issues will be relevant. It is plain that weight will be given to the fact that making the order would (a) serve to vindicate the authority's ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of housing stock. It was again emphasised at [37], as in Pinnock, that
  42. " there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock".

    It will be observed that this statement of the law comes close, although it has been disavowed, to espousing a test of exceptionality. If it is decided to entertain a proportionality point, because it is seriously arguable, the court will need to give a reasoned decision as to whether or not a fair balance would be struck by making the order sought by the local authority. Reference was made to the Strasbourg decision in Kryvitska and Kryvitskyy v Ukraine, given on 2 December 2010 at [44].

  43. It was recognised that in homelessness cases the occupier will be likely to be the subject of a continuing duty and will be entitled to contest a finding that he or she became homeless intentionally. Nevertheless, the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. "The question for the court will always be whether the making of an order for possession would be lawful and proportionate": see [39].
  44. Perhaps the passage of most practical use is that to be found at [41]:
  45. "In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock at [52]. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court."

    One may perhaps detect some encouragement, for judges sitting in the county court, to deal with possession claims in homelessness cases on a summary basis unless a proportionality argument has been raised which can be categorised as "seriously arguable". That is to say, I would presume, it needs to be shown that there is a serious argument available that the public policy considerations guiding the local authority's application for possession should be outweighed in the particular circumstances by Article 8 considerations. In the absence of a particularly strong or unusual reason for wanting to obtain possession, there would be no need for the local authority to plead the reason for which possession is sought or to adduce evidence for that purpose. "No point can be taken against the local authority, however, if it chooses not to take this course and to leave it to the tenant to raise such points as she wishes by way of a defence": see [43].

  46. Lord Phillips made the point at [74] that Parliament had sought, for example in the case of non-secure tenants, to avoid questions of proportionality being pursued before the courts so far as possible:
  47. "The policy behind this approach is not in doubt. It is to prevent the delay and expense that may occur if those who are not entitled to security of tenure are permitted to resist the grant of possession orders by the courts by attacking the reasons that have led the local authorities to claim possession."

    He went on to make clear, however, that it is not compatible with the procedural requirements of Article 8 to oust the powers of the court to consider the proportionality of dispossessing a non-secure tenant. The purpose of the Supreme Court in the Powell case was to answer questions that appeared to have been left open in the earlier case of Pinnock. In particular, attention would be focussed on identifying the matters to which the court should pay regard when such an issue is raised.

  48. Lord Phillips pointed out that sometimes a tenant may be permitted to remain in accommodation provided under Part VII of the 1996 Act for a considerable period of time and that the local authority may wish to remove him or her, not simply in the interests of the more efficient management of housing stock, but because of shortcomings in behaviour, such as anti-social activity or a failure to pay rent. In the case of such grounds, it will be open to the tenant to seek to challenge the facts upon which the decision was based. It will have to be shown that there are substantial grounds, however, for such a challenge if summary imposition of a possession order is to be avoided. This is likely to occur only in rare cases. He further observed at [114]:
  49. "Sometimes the authority will be reacting to the behaviour, or perceived behaviour of the tenant. In the latter event the authority may be proceeding on the basis of a factual assumption that is unsound. If the only reason that the authority is seeking possession is that the tenant has been guilty of bad behaviour, obtaining possession will not further the legitimate aims of the authority if that factual premise is unsound. If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authority's action will serve a legitimate aim."

    Lord Phillips said that it would be fundamentally unfair for the courts to operate a regime under which a person can be deprived of his home by a public authority without being told the reason. Reference was made to Connors v United Kingdom (2004) 40 EHRR 189 at [94].

  50. In the present case, although the matter has not been raised by way of a pleading, my attention was drawn to certain documentation in which Mr Holmes indicated a wish to challenge the suggestion that he had assaulted the local authority's housing officers on 10 February 2010. There are, however, a number of other reasons for challenging the order of 18 November 2010.
  51. It is clear that the court was invited to determine the Council's right to possession on a summary basis, and that is what the Recorder appears to have done. He concluded that it was unnecessary for him to make "detailed findings" concerning the matters said to be in dispute. He ordered possession in the light of the evidence that had been submitted to him and the submissions made upon it. He was of opinion that no purpose would be served by an adjournment or by permitting a two day multi-track trial. He announced that he would "grasp the nettle today" and that is what he proceeded to do. He came to the conclusion that he could reach a fair outcome without the need for oral evidence. Such an approach would appear to be in accordance with the public policy requirements, under CPR Part 55, to the effect that there should be a summary determination wherever possible.
  52. One of the Council's arguments, developed before me by Mr Holbrook in his oral submissions, was that Parliament had determined that the Council should have a right to possession without the court considering its reasons: see the Housing Act 1985, Sch 1 at paras 4 and 6. It was submitted that it would be antithetical to the Council's right to manage such accommodation if it were required to give a tenant a right to question a reason for seeking possession. It was argued that there was no legal basis for grafting the rules of natural justice on to a process where the right to possession is considered to be, for sound public policy reasons, unconditional. It was accepted that the rules of natural justice might come into play at a later stage, if the Council sought to argue that Mr Holmes had made himself intentionally homeless. Such considerations should not, however, intrude upon the process of obtaining a summary order for possession.
  53. I am bound to say that I find this argument difficult to reconcile with the principles recently developed and explained in the cases of Pinnock and Powell in the Supreme Court. In particular, of course, I have in mind the words of Lord Phillips which I have cited. Having regard, in particular, to the decision on 28 January 2010, it is clear that the reason for proceeding with the claim for possession was Mr Holmes' alleged behaviour on 10 February of that year. That does not, on the other hand, necessarily determine the question of whether the Recorder was entitled to proceed on a summary basis. He had the evidence before him and the Council submits that he was entitled to come to a conclusion without the need for a resolution of conflicting oral testimony. It was submitted that it would be inappropriate to conduct a quasi crown court trial on every occasion when a tenant's conduct was criticised. This may have been a somewhat emotive way of putting the matter, but it does merit further consideration.
  54. The two housing officers contend that they were assaulted by Mr Holmes at the premises when attempting to serve a document on him. It seems that they ended up in a heap with Mr Holmes on top of them. Although not raised in a pleaded form, the case he wishes to advance in this connection is that he was attempting to tear up the document when he lost his balance and fell on them. The Council's argument is that it is unnecessary to go through a quasi criminal trial in order to determine whether or not Mr Holmes can be proved guilty of assault. What matters for present purposes is whether or not the Council had reasonable grounds to believe that he had behaved in the way described by its officers. In order to base a possession order on a tenant's conduct, it is not necessary to go through a trial process to establish criminal guilt, or even to prove a civil wrong on a balance of probabilities. Conduct may be legitimately regarded as unacceptable, on the part of a tenant, without necessarily passing either of those tests.
  55. When it comes to assessing proportionality, in the light of the available evidence, the court is bound to take into account the competing rights and interests of the persons involved. Here, one of the Council's principal concerns is its duty to protect its employees and to prevent, in so far as it is possible to do so, harm befalling them in the course of their daily work.
  56. In this context, my attention was drawn to section 15 in the Council's own Anti-Social Behaviour Policy under the heading Protection of Staff. It records, understandably, that "exposure to violence and assault is not an acceptable part of an employee's everyday working life". It also contains a provision to the effect that:
  57. "From time to time further action has to be taken to protect staff dealing with serious anti-social behaviour."

    It is submitted that, in appropriate circumstances, such "further action" could include taking proceedings to evict a tenant who has behaved anti-socially or in such a way as to expose the Council's officers to violence even though it may fall short of the commission of a criminal offence.

  58. Against this background, it seems to me that the Recorder was fully entitled to come to the conclusion, on the information before him, that there was no need to reject what has become the standard summary procedure for possession cases and to adopt, contrary to normal practice, a trial process involving a determination of whether or not Mr Holmes had committed either a criminal or civil assault. Had he not chosen that course, but rather ordered a full trial with oral evidence, this would have given rise what Lord Hope in Powell, at [41], called " the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area". His Lordship observed shortly afterwards that it is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness and proportionality. As I have already noted, that did not happen in this case. No positive case was pleaded. Yet, in the light of the evidence before the court, the burden lay on Mr Holmes to show that he had substantial grounds to establish the need for a hearing to find the facts: ibid at [92], per Lord Phillips.
  59. A further argument raised on Mr Holmes' behalf is that the Recorder should have given directions to resolve any outstanding dispute as to the underlying facts, for the reason that the relevant law was in a process of development. On a fair analysis, this does not appear to be the case. It is now finally clear that the court has the power to address arguments based on proportionality in proceedings relating to non-secure tenancies in appropriate cases. As now regularly happens in the context of balancing competing Convention rights, each case is likely to turn upon a close analysis of the individual facts of the case. The principles, as such, are surely beyond doubt. The law was clarified by the Supreme Court in Pinnock on 3 November 2010 and the learned Recorder, two weeks later, proceeded on that basis. As it happens, the law has been further clarified to similar effect by the Court's later decision in Powell on 23 February of this year. I do not believe that the law can be said to be "in a state of development" any longer. That would not therefore, in itself, justify postponing the decision on the Council's application for a possession order if it would not otherwise be appropriate.
  60. A separate argument was raised on the basis that the learned Recorder's judgment could be impugned on more traditional public law grounds. Such an argument is not precluded by s.38 of the County Courts Act 1984, since it has been held that the purpose is simply to exclude the grant of the traditional public law remedies. In appropriate cases, such arguments can be raised by way of defence in possession proceedings. It was originally suggested that the Recorder had disregarded three relevant matters which should have been taken into account; that is to say, the Council's own policy on Anti-Social Behaviour (briefly considered above), the Housing Corporation Guidance (no longer pursued) and the Secretary of State's Guidance addressing the rehabilitation of perpetrators and support for vulnerable groups.
  61. The Secretary of State's Guidance was not referred to by Mr Holmes' counsel before the learned Recorder and had not even been made available to him. It is thus difficult to see how this point can be raised on appeal.
  62. I turn, therefore, to the issue of the Council's own Anti-Social Behaviour Policy, which it was required to prepare and publish by s.218A of the Housing Act 1996. In an introductory passage, describing the Council's general approach to anti-social behaviour, it was stated:
  63. "We use our enforcement powers in appropriate circumstances and in particular where all other attempts at resolution have either failed or have been exhausted. Where enforcement is appropriate we aim to intervene early, making use of our powers such as Anti-Social Behaviour Orders, injunctions, possession action "
  64. The Council itself did have regard to the policy prior to seeking a possession order, and indeed referred to it in a letter to Mr Holmes dated 9 April 2010. Ten days later there was a further letter referring to the incident on 10 February 2010 and indicating that legal proceedings would be restored to take back possession of the accommodation "due to the seriousness of the incident". That is, of course, entirely consistent with applying the provisions of section 15 of the policy, to which I have already referred, and in particular the provision that "in some cases it will be considered appropriate to take immediate action, depending on the severity of the problem" (i.e. for the purpose of protecting staff dealing with serious anti-social behaviour). In other words, the Council's own policy played a significant part in the reasoning process which led to the resumption of the possession proceedings. In this respect, therefore, the case is to be contrasted with the circumstances confronting the Court of Appeal in Barber v Croydon London Borough Council, discussed above. Here, for example, the decision could hardly be described as Wednesbury unreasonable the conclusion reached in Barber.
  65. The Recorder was entitled to conclude that he was "unable to identify any cogent evidence to show that there has been any breach of policies": see the judgment at [14]. That is not surprising in view of the fact that no argument had been developed in the course of the hearing before him to show in what respect(s) it was being contended that the Council had breached its policy.
  66. An allegation is also made that the learned Recorder should have found that the Council was in breach of the provisions of s.49A of the Disability Discrimination Act 1995. The Recorder in fact asked counsel appearing for Mr Holmes, as emerges from the transcript of the hearing, how it was that she alleged the Council was in breach of its statutory duties. Her response was unspecific, in the sense that she referred to the Council not having taken sufficient account of Mr Holmes' "mental health issues". The learned Recorder rightly noted that there was "a need for cogent evidence of breach of policies or duties under statute before such a defence can carry weight": see the judgment at [11]. He concluded that he was unable to identify any cogent evidence to the effect that there had been a breach of inter alia the 1995 Act: see at [14].
  67. A further argument has been raised on the Council's behalf, to the effect that an appellate tribunal could refuse relief in this respect on the basis that any deficiency in the discharge of the statutory duties would be made good following eviction, by reason of the fact that Mr Holmes would continue to be owed duties as a homeless person: see e.g. the discussion of the Court of Appeal in Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834 at [33] to [41]. The conclusion was reached by Lloyd LJ (with whom Maurice Kay LJ entirely agreed) that " it was right to make an order for possession, and to leave it to the Council to deal properly with the logically consequent issue of [the relevant appellant's] need for new accommodation".
  68. The central point is, however, that the learned Recorder did consider the Disability Discrimination Act and came to the conclusion that there was no cogent evidence to demonstrate a breach of statutory duty.
  69. Finally, there was an argument that the Recorder applied a wrong test in coming to his conclusion. In particular, the argument was raised that in striking out the defence he had asked himself whether there was "a real prospect of success" rather than whether the defence was "bound to fail".
  70. As requested, what the Recorder actually did was to arrive at a summary decision to grant possession in accordance with CPR 55. The question of which test should be applied on a strike out, therefore, does not directly arise. As I have already noted above, the ordinary summary judgment regime under Part 24 does not have application to possession actions. The Recorder himself noted, at [4], that he was dealing with the application "on a summary basis". In his words, he chose to "grasp the nettle" and determine the matter without the need for a trial with oral evidence.
  71. Even if, however, the Recorder was on a proper analysis simply striking out the defence under CPR 3.4, he was entitled to conclude that the defence "disclosed no reasonable grounds for defending the claim". I cannot discern any error of principle. It is clear from his judgment that he took the view that the matters raised in the defence were in fact bound to fail.
  72. In these circumstances, I conclude that the criticisms of the Recorder's extempore judgment of 18 November 2010 are not well founded. The appeal will accordingly be dismissed.


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URL: http://www.bailii.org/ew/cases/EWHC/QB/2011/2857.html