Introductory tenancy – Starter tenancy – Possession – Human rights – Possession ordered against tenant under introductory tenancy – Possession refused against tenant under starter tenancy – Neither tenant having domestic law defence to possession – Defence under Article 8 of European Convention on Human Rights accepted in first case but rejected in second – Whether either tenant establishing highly exceptional circumstances rendering possession disproportionate – Landlord’s appeal allowed in first case – Tenant’s appeal dismissed in second case
The two conjoined appeals concerned the circumstances in which a tenant under an introductory tenancy or a “starter” tenancy could, notwithstanding the absence of any domestic law defence to the landlord’s possession claim, argue that the making of a possession order would contravene their right to respect for their home under Article 8 of the European Convention on Human Rights.
In the first appeal, the tenant held an introductory tenancy of a flat granted by a local authority landlord under the Housing Act 1996. The authority relied on rent arrears in support of its claim for possession. In those proceedings, directions were given for the tenant to pay the current rent plus a specified weekly sum of the arrears. The arrears did not abate until the last working day before the possession hearing, when the tenant’s relatives paid them off. At the hearing, the judge refused to make a possession order. He found that highly exceptional circumstances existed, justifying a refusal of possession on Article 8 grounds, since the tenant had been subjected to a serious assault the previous year and the arrears had been paid off. The authority appealed.
In the second appeal, the landlord was a private registered social housing provider. It granted an assured shorthold tenancy of a flat, as a “starter tenancy”, under sections 19A to 21 of the Housing Act 1988, but sought possession after an allegation of indecent exposure was made against the tenant, followed by further complaints of noise and abuse. The landlord conducted a formal review of its decision to seek possession; the review panel upheld the decision and found that the alleged incidents had occurred. An order for possession was made by a deputy district judge. A judge subsequently dismissed the tenant’s appeal without hearing evidence. He held that there was nothing in the tenant’s challenge to the indecent exposure allegation, and that a full hearing was not justified by the fact that there had been no further complaints, that the tenant had been homeless, had liver and kidney problems, and had got married and had a child. The tenant appealed.
Held: The first appeal was allowed; the second appeal was dismissed.
(1) Although there was no equivalent of an introductory tenancy under the assured tenancy regime of the Housing Act 1988, a “starter tenancy” in practice gave the landlord and tenant very similar rights. In each case, the purpose of the tenancy was to see whether the tenant would be an appropriate person to enjoy security of tenure in publicly available housing. In neither case was there statutory security of tenure, save that the landlord had to serve a notice and seek possession from the county court. In both cases, in practice the landlord had to have good reason before deciding to seek possession and the tenant had a right to seek a review of that reason and decision. In such circumstances, provided the landlord had served a valid notice of possession proceedings under section 128 of the 1996 Act, or notice requiring possession under section 21 of the 1988 Act, the tenant would rarely if ever have a domestic law defence against a subsequent possession claim. The tenant could, in principle, run an argument under Article 8 of the Convention that it would be disproportionate to evict him from his home, but it would only be appropriate for the court to consider such an argument in highly exceptional cases: Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104; [2010] 3 EGLR 113 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] 09 EG 164 (CS) considered. It was desirable for a judge to consider at an early stage, normally on the basis of the tenant’s pleaded case, whether the tenant had an arguable case on Article 8 proportionality before the issue was ordered to be heard. If the case could not succeed, it should not be allowed to take up further time and expense and to delay the landlord’s right to possession.
(2) The circumstances of the first appeal did not come close to justifying a contention that it was disproportionate to obtain possession. The attack suffered by the tenant, although highly exceptional in itself, was not, without more, relevant to the issue of Article 8 proportionality. There was no suggestions that it had resulted in mental or physical injury that would render it particularly harmful to the tenant to be evicted. Its effects did not explain the rent arrears. When considering a proportionality argument, a judge should be rigorous in ensuring that only relevant matters were taken into account on the proportionality issue, and should not let understandable sympathy for a particular tenant have the effect of lowering the threshold. The fact that the rent arrears had been cleared at the last minute did not carry significant weight with regard to Article 8 proportionality. In the absence of extraordinary facts, a residential occupier could not pray in aid the fact that she had paid to the landlord money that she owed it as a significant factor enabling her to cross the high threshold when invoking Article 8. The tenant’s case on proportionality should not have gone to trial.
(3) In the second appeal, the judge had been entitled to conclude that the tenant had not established a strong enough case to justify a full hearing on proportionality. The indecent exposure allegation on which the decision to seek possession was based had been properly investigated by the reviewing panel, which had concluded that it had occurred. That conclusion was clearly articulated and well reasoned and had been arrived at after a hearing. The tenant had not come up with any new points that called the finding into question, or any challenge to the procedure or reasoning involved in the review. The lack of further complaints about the tenant’s behaviour was no more than a mitigating factor. There was no evidence that his kidney and liver problem would be exacerbated by his eviction. Although he had a family by the time the claim came to court, his wife and children would have to be rehoused under the homelessness provisions in Part VII of the 1996 Act. The risk that the tenant himself would be treated as intentionally homeless, and therefore not entitled to rehousing in his own right, was not a significant factor so far as the Article 8 proportionality argument was concerned. Article 8 was primarily concerned with respect for a person’s particular home, as opposed to a general right to be provided with a home. Any right to be rehoused was a factor weighing against the Article 8 claim, but the absence of such a right was not necessarily a factor in favour of it.
Jonathan Manning (instructed by the legal department of Corby Borough Council) appeared for the appellant in the first appeal; Michael Singleton (instructed by Community Law Service) appeared for the respondent in the first appeal; Robert Denman (instructed by Holden & Co) appeared for the appellant in the second appeal; Andrew Lane (instructed by Batchelors) appeared for the respondent in the second appeal.
Sally Dobson, barrister