Possession proceedings – Human rights – Claimant managing property of Ministry of Defence – Claimant providing temporary housing for defendant on compassionate grounds following husband’s resignation from armed forces – Subsequent claim for possession on grounds of need for defence accommodation – Defendant alleging breach of Article 8 of European Convention on Human Rights – Whether claimant acting irrationally in deciding to seek possession – Claim allowed
The claimant managed the property portfolio of the Ministry of Defence (MoD), including residential properties used to house members of the armed forces. The first defendant’s husband was an army officer. He was violent towards her and abused one of her two daughters; a court martial found him guilty of “ungentlemanly conduct” and he resigned from the army. Thereafter, the army had no further duty to house the first defendant but it provided her and her daughters with temporary accommodation in Leeds on compassionate grounds. She was registered disabled and had to use a wheelchair. One of her daughters suffered from mental health problems and the other, who was the carer for her mother and sister, had a son with Crohn’s disease.
In 1990, the claimant terminated the first defendant’s licence and obtained a possession order. In 2001, it applied for a warrant for possession. This was refused on the ground it had granted a fresh tenancy. In 2005, following an increased need for defence housing in the area, the claimant served a notice to quit on the first defendant. It recognised the need to act sympathetically and contacted the local authority to ensure that they would actively assist in finding accommodation for the family. However, the local authority declined to do so before a possession order had been made, since their duty to house a person in priority need would not arise before then.
In 2007, the claimant brought fresh possession proceedings in the county court. It contended that the first defendant’s tenancy could not be an assured tenancy because it fell within para 11 of Schedule 1 to the Housing Act 1988, as a tenancy in which the landlord’s interest belonged to a government department; accordingly, there was no protection against eviction. The first defendant contended that the claimant failed to appreciate her full circumstances, including the presence of her daughter with her disability, and had acted unreasonably in bringing the possession claim. She alleged a breach of her rights under Article 8 of the European Convention on Human Rights. The matter was transferred to the High Court to determine whether Article 8 afforded a defence.
Held: The claim was allowed.
Although public law defences based on the irrationality of a decision to seek possession can be raised before the county court as a defence, the claimant was not obliged to enquire into the full circumstances of the first defendant before making that decision: Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636 and Doran v Liverpool City Council [2009] EWCA Civ 146; [2009] BLGR 395 applied. Where there was an issue as to the facts that were, or ought to have been, known to an authority seeking possession, it would be difficult for a court to decide that the decision, based on partial information, was unreasonable because the authority was entitled to act on the information that was known to it, provided that it acted reasonably in all the circumstances. Moreover, an enquiry into the defendant’s full circumstances could not have affected the claimant’s decision since personal disabilities would not generally provide a proper basis for declining to take proceedings, albeit there might be cases where it would be incumbent on the relevant authority to assist so far as it was able in seeing that alternative accommodation could be provided.
Despite certain failures on the part of the claimant to live up to the standards of good administration, including unnecessary delays, there was no reason to reject its evidence on the need for military housing. It was necessary to be flexible in the use of residential properties held by the MoD because of the need to deploy and accommodate members of the armed forces quickly and in accordance with operational requirements. The MoD’s need to have available accommodation overrode the first defendant’s rights under Article 8 of the Convention. By virtue of section 6(1) of the 1988 Act, the court could not refuse to make a possession order and the maximum suspension was six weeks. The first defendant had no right to remain in the property; however, the claimant should assist her in finding suitable alternative accommodation.
Per curiam: In a case where the only option was to make a possession order, there was none the less a value in the court finding facts. If the facts so found persuaded the court that it would be disproportionate or unreasonable to evict, it could voice that view. If the individual failed to leave after the period of suspension, any decision by the landlord to seek a further order to evict could be challenged on the basis of the facts found by the county court. This would be so even if the court had not concluded that the decision to bring possession proceedings was irrational on the facts known to the authority at the time.
Jason Coppel (instructed by Eversheds LLP) appeared for the claimant; Stephen Cottle (instructed by Davies Gore Lomax, of Leeds) appeared for the first defendant; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the second defendant, the secretary of state for communities and local government.
Sally Dobson, barrister
