Local authority – Non-secure tenancy – Tenant suffering from mental impairment – Human rights – Respondent council seeking possession of flat occupied by appellant on ground of anti-social behaviour– Possession granted – Whether decision to proceed with possession claim unreasonable – Whether respondents failing to take account of vulnerability of appellant – Appeal allowed
The appellant suffered from mental health problems, including a personality disorder and acute depression, and had in the past attempted suicide. He held under a non-secure tenancy of a flat from the respondent council, in accordance with their duty under section 193 of the Housing Act 1996 and, subsequently, the Homelessness Act 2002. In June 2007, the respondents served a notice to quit following an incident in which the appellant had sworn at, threatened and kicked the caretaker during an argument concerning broken glass at the rear of the building. The notice was served without first interviewing the appellant, although this was done subsequently. The appellant accepted a police caution for public order offence in respect of the incident.
In July 2007, the respondents brought possession proceedings against the appellant, in accordance with their anti-social behaviour policy under which category 3 incidents, involving physical assault, would overwhelmingly result in an ASBO or outright possession order. By his defence, the appellant contended that, inter alia, the respondents had acted unlawfully in bringing the proceedings without properly taking into account his disabilities. In particular, he relied on the respondents’ failure to adhere to their policy that anti-social behaviour cases involving a vulnerable person should be referred to the Integrated Mental Health Service (IMHS) to ensure that the vulnerability was taking into account when taking action. The parties jointly instructed a psychiatric expert, who produced a report, indicating that the appellant would be unable to cope with homelessness.
Despite this, the respondents decided that it was proportionate to continue with the proceedings. Allowing the claim, the county court rejected a defence under the Disability Discrimination Act 1995 on the facts, and held that the respondents had acted reasonably in bringing, and in continuing, the possession proceedings. The appellant appealed.
Held: The appeal was allowed.
The authorities established that a defendant in private law proceedings by a local authority for possession of their property was entitled to raise a public law challenge by way of defence and was not obliged to bring separate judicial review proceedings. Where it was not argued that the law that gave the right to possession was incompatible with the right to respect for home under Article 8 of the European Convention on Human Rights (gateway (a)), the decision to exercise the legal right was still challengeable under gateway (b) on the ground that it was a decision that no reasonable person would consider justifiable; such a challenge was a conventional public law test although broader than a strict formulation of the Wednesbury principle: Wandsworth London Borough Council v Winder [1985] AC 461, Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636 applied. Although it might be reasonable for a local authority to serve a notice to quit on the facts known to them at the time, they were obliged to keep the position under review and to take account of any relevant facts that subsequently came to their notice in deciding whether to bring and continue the possession proceedings: Doran v Liverpool City Council [2009] EWCA Civ 146; [2009] NPC 35 considered. That approach allowed the authority to reconsider new material subsequent to their original decision to terminate the tenancy and therefore avoid the charge that they had failed to take all relevant matters into account. It was in principle open to a housing authority to reconsider the need to seek possession at any time up to the making of a possession order, or even its enforcement, and to rely on this as curing any defects in the original decision to commence the proceedings. However, by the same token, a decision to proceed with possession proceedings, taken following a reconsideration of the case, would be reviewable regardless of the legality of the earlier decision to commence the proceedings: Central Bedfordshire Council (formerly Bedfordshire County Council) v Taylor [2009] EWCA Civ 613; [2009] 3 EGLR 29; [2009] 37 EG 106 applied.
Applying those principles to the instant case, the relevant decision of the respondents was not their original decision to serve a notice to quit, but their subsequent one to proceed with the possession action after interviewing the appellant and obtaining the psychiatric report. Although the respondents’ policy on anti-social behaviour was not unlawful, they had acted unreasonably in proceeding under that policy without taking account of the fact that the appellant’s behaviour was almost certainly linked to his personality disorder. That would have involved the respondents liaising with IMHS and other social services to establish whether a strategy other than seeking possession, such as by a supervised acceptable behaviour contract, could be followed in order to obviate a repeat of the incident. Instead, they had reached their decision without assistance from the specialised agencies and without giving the psychiatric expert’s report the weight that it deserved. As a result, they had treated the case as an ordinary category 3 case without considering the policy on vulnerable people. That approach was wrong in principle and had led to a decision that no housing authority faced with the facts of the case could reasonably have taken. The possession order should be set aside.
Christopher Balogh (instructed by Streeter Marshall) appeared for the appellant; Wayne Beglan (instructed by the legal department of Croydon London Borough Council) appeared for the respondents.
Sally Dobson, barrister
