Human rights – Possession – Introductory tenancy – Appellant local authority granting introductory tenancy of flat to respondent – Complaints received about anti-social behaviour – Appellants deciding to seek possession of flat – Defence under Article 8 of European Convention on Human Rights – Respondent diagnosed with mental health conditions – No further anti-social behaviour for nearly a year in period up to trial – Possession order held not to be proportionate as at trial date – Whether trial judge entitled to take good behaviour into account in support of Article 8 defence – Whether fresh evidence admissible on second appeal to counter that defence – Appeal dismissed
In January 2011, the appellant local authority let a flat to the respondent on an introductory tenancy under the Housing Act 1996, which, provided that the respondent complied with the conditions of that tenancy, would be converted into a secure tenancy after one year. Almost immediately, the appellant received complaints of antisocial behaviour by the respondent, namely abuse towards a neighbour, a member of the appellant’s staff and an electrician who had visited the respondent’s flat to carry out works. The appellants served a notice of possession on the respondent, alleging, by reference to those three incidents, that he had breached the conditions of his tenancy by conduct causing, or likely to cause, nuisance or annoyance. The notice advised the respondent of his right to request a review of the decision but, after such a review, the review panel upheld the decision to seek possession.
The appellants brought possession proceedings in June 2011 but, owing to various delays, the case did not come for trial until March 2012. Considering a defence raised by the respondent under Article 8 of the European Convention on Human Rights, the recorder found that the appellants’ decision to initiate possession proceedings had been reasonable and that the respondent would have had no defence when the proceedings were issued. However, she held that the proportionality of making a possession order had to be decided as at the date of trial and that, by then, a possession order was no longer proportionate.
In reaching that conclusion, she took into account the fact that, since the appellants’ initial decision, the respondent had been found to lack capacity to conduct litigation, having been diagnosed with depression and Asperger’s syndrome. She considered that the balance was tipped in the respondent’s favour by the fact that, despite his mental health problems, nearly a year had passed without the respondent’s behaviour causing any further problems.
The appellants’ appeal against that decision was dismissed in the court below but permission was given for a second appeal. They sought to adduce fresh evidence, including a psychiatric report by a jointly instructed expert, to counter the diagnosis as to the respondent’s mental condition and incapacity to conduct litigation.
Held: The appeal was dismissed.
(1) The provisions of sections 27 to 29 of the 1996 Act, governing the circumstances in which a landlord under an introductory tenancy could obtain possession, did not exclude the ability of the court to undertake a review of the landlord’s decision to seek possession in order to satisfy itself that the making of a possession order was not incompatible with the tenant’s rights under Article 8: Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] 09 EG 164 (CS) applied. The test was whether the eviction was a proportionate means of achieving a legitimate aim. The threshold for establishing an arguable case that a local authority was acting disproportionately, and so in breach of Article 8, was a high one and would be met only in a small proportion of cases, owing to the public policy and public benefit inherent in the functions of local authorities dealing with their housing stock. The fact that a local authority had a legal right to possession, aside from Article 8, would be a strong factor in support of the proportionality of making an order for possession. The court should normally give consider at the earliest opportunity whether the Article 8 defence as pleaded, and assuming that the pleaded facts were correct, met the threshold. Even where an Article 8 defence was established, the defence would not normally operate to confer an unlimited and unconditional right to remain on an occupant who would otherwise have no legal right to remain in the property. Proportionality was more likely to be a relevant issue in relation to occupants who were vulnerable as a result of mental illness, physical or learning disability, poor health or frailty: Thurrock Borough Council v West [2012] EWCA Civ 1435; [2012] PLSCS 241 and Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104; [2010] 3 EGLR 113 applied.
Whether a given set of facts crossed the high threshold of giving rise to an Article 8 defence was a question of law and not a matter of discretion. However, the test was not a “bright line” test but was more in the nature of a value judgment, on which an appeal court would be reluctant to reverse the decision of the trial judge. The question on appeal was not whether the appeal court would have made the same decision as the recorder, but whether the recorder’s decision was one that was open to her.
(2) Although, in the majority of cases, an occupant’s good behaviour would not support an Article 8 defence, the position might be different with an introductory tenancy, the whole point of which was to test the tenant’s behaviour over a one-year period in order to see whether he could be a responsible tenant. Moreover, unlike cases involving continued occupation by a former tenant, a tenant under an introductory tenancy would remain a tenant until the conclusion of the possession proceedings and any appeal. Accordingly, the refusal of a possession order would not result in him having an indefinite and uncontrolled right of occupation. Instead, he would become a secure tenant on the same terms as the introductory tenancy, with the consequence that any further breaches of the terms of the tenancy might result in an order for possession being made against him. Accordingly, where, as in the instant case, the tenant under an introductory tenancy got off to a shaky start but mended his ways for almost the whole of the one-year period, that improvement was capable of being a factor in deciding whether it was disproportionate for the landlord to insist on recovering possession. The weight to be given to that factor was a matter for the trial judge. The test was not whether the circumstances were exceptional, since exceptionality was an outcome rather than a test: Pinnock applied. On the material before the recorder, she had been entitled to conclude that, by the trial date, it had become disproportionate to make a possession order: Leeds City Council v Hall [2010] EWCA Civ 336; [2011] 1 All ER 119 distinguished.
(3) The appellant should not be permitted to rely on fresh evidence as undermining the recorder’s conclusion. Applying the usual principles, permission to admit the evidence should be refused both on the ground of delay and because it was unlikely to have an important influence on the outcome of the case: Ladd v Marshall [1954] 1 WLR 1489; (1954) 164 EG 580 applied.
Per curiam: Although no oral argument had been heard on the point, the better view was that stricter criteria applied to the admission of fresh evidence on a second appeal. In order to justify re-opening a concluded appeal, or conducting a second appeal, it had to be shown that the injustice that would otherwise result was so grave as to overbear the pressing claims of finality in litigation. The fresh evidence would have to demonstrate not merely a real possibility that an erroneous result had been reached in the earlier proceedings, but a powerful probability that such a result had in fact been reached. That test would generally be met where the process had been corrupted. It might be met where it was shown that a wrong result had been arrived at. It would not be met where it was shown only that a wrong result might have been arrived at: Re Uddin (a child) [2005] EWCA Civ 52; [2005] 1 WLR 2398 and Wiemer v Redstone Mortgages Ltd [2014] EWCA Civ 81 considered.
Nicholas Grundy (instructed by Clarke Willmott LLP) appeared for the appellants; Jan Luba QC (instructed by Law Hurst & Taylor, of Westcliff-on-Sea) appeared for the respondent.
Sally Dobson, barrister
