Landlord and tenant – Non-secure tenancy – Possession – Respondent being granted non-secure tenancy of flat – Neighbours complaining about anti-social behaviour in flat by persons associated with respondent during his absence in prison – Appellant local authority serving notice to quit and seeking possession of flat – County Court refusing claim of possession – Whether appellants revoking notice to quit – Whether appellants’ decision to bring possession proceedings being unreasonable or susceptible to proportionality challenge – Appeal allowed The appellant local authority owned a one-bedroom flat which was let to the respondent under a non-secure tenancy granted under Part VII of the Housing Act 1985. The respondent had a long history of persistent criminal offending mainly for shoplifting connected with his drug habit. The appellants had accepted that he was unintentionally homeless and in priority need and granted a tenancy from 14 September 2009 at a rent of £111.49 per week payable fortnightly in advance through housing benefit. By clause 2(d) and (j) of the tenancy agreement the respondent covenanted not to allow any other person to occupy or share in the occupation of the premises and “not to do or permit or suffer to be done” anything which might cause nuisance, damage, annoyance or interference with adjoining owners or occupiers. Between 2010 and 2011, when the respondent was in prison for prolonged periods, the appellants received complaints from neighbours about noise and nuisance from persons occupying the flat. The appellants eventually served a notice to quit on the respondent but, following a meeting with his probation officer, they agreed to give him another chance. When the disruptive behaviour continued the appellant brought proceedings for possession of the flat. The essence of the respondentÕs defence to the possession proceedings was that anyone using the flat during his absence had done so without his permission and in circumstances where he had been unable to prevent it. He also raised a defence under article 8 of the European Convention on Human Rights on the grounds of his vulnerability as an ex-offender and drug addict. The county court dismissed the claim for possession holding, inter alia, that, by agreeing to give the respondent another chance, the appellants had revoked the notice to quit and reinstated the tenancy in its original terms, as if there had never been a termination. Accordingly, the appellants had no cause of action on which to base their claim for possession. The appellants appealed. Held: The appeal was allowed. (1) Although the appellants had alleged in terms that the respondent had acted in breach of the tenancy agreement, the existence of a breach of covenant was not a pre-requisite to the service of a valid notice to quit or to the making of an order for possession. The court did not, as in the case of a secure tenancy, have to be satisfied that the appellants had made out one of the statutory grounds for possession and that it was reasonable to make the order. Since the notice to quit satisfied the statutory requirements as to form prescribed by regulations made under the Protection from Eviction Act 1977 and was contractually effective to determine the tenancy, subject to any public law defences, the appellants were entitled to an order for possession. The only question for the court was whether the order should be for immediate possession or should be postponed up to the limits permitted by section 89 of the Housing Act 1980. (2) It was possible for a tenant under a non-secure tenancy to raise a pure article 8 defence to a claim for possession and for the court to consider whether the making of a possession order would be necessary in a democratic society. It was for the tenant to raise the proportionality challenge by way of defence and to establish a seriously arguable case that his own circumstances overrode the particular exercise by the council of its public responsibility to manage the available public housing stock for the benefit of the community as a whole. Only in exceptional cases would it be possible for the tenant’s personal circumstances to establish a claim to maintain a home under his existing tenancy: Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] 09 EG 164 (CS) applied. (3) As a matter of law it was impossible for the appellants to revoke the notice to quit. Once served it was effective to determine the tenancy according it its terms. Even if the appellants had made an irrevocable decision not to rely on the notice the tenancy would still have come to an end: see Tayleur v Wildin (1868) LR 3 Ex 303. The tenant’s security would therefore depend upon the grant of a new tenancy which in an appropriate case might be inferred from the landlord’s acceptance of rent after the expiry of the notice to quit. Therefore the respondent’s contractual defence to the claim for possession turned solely on whether by allowing him to remain in possession of the flat until trial and by accepting his housing benefit, the appellants had evinced an intention to create a new tenancy. On the evidence, the decision to give the respondent another chance was never more than conditional and the respondent had remained in the flat as no more than a tolerated trespasser. (4) In all the circumstances, the decision to make a claim for possession was not Wednesbury unreasonable. On the evidence, once the respondent had broken the strict licence conditions which had been reasonably imposed, the factual premise upon which the appellants had arranged for him to stay in the flat disappeared. The appellants were obliged to have regard to the most beneficial use of their available housing stock in the interests of all their tenants. (5) Furthermore, the appellants’ decision was not susceptible to a challenge under article 8 which required the court to ask whether the case surmounted the high hurdle of qualifying for a proportionality review. The decision to seek possession was driven by the need to control the effect on neighbours of what had occurred at the flat. To say that the respondent was not responsible for that conduct did not lessen that imperative. At most it provided a factor to be considered when deciding whether the need to obtain possession outweighed any adverse impact on him. The respondent’s personal circumstances did not raise a sufficiently compelling case to require a full-blown proportionality review. Nothing had been identified to take his case outside the ambit of a conventional balancing exercise between the interests of the respondent and those of the other tenants. A challenge to the decision on proportionality grounds had no real prospect of success. Philip Glen (instructed by Southampton & Fareham Legal Services Partnership) appeared for the appellants; Felicity Thomas (instructed by Swain & Co) appeared for the respondent. Eileen O’Grady, barrister
Landlord and tenant – Non-secure tenancy – Possession – Respondent being granted non-secure tenancy of flat – Neighbours complaining about anti-social behaviour in flat by persons associated with respondent during his absence in prison – Appellant local authority serving notice to quit and seeking possession of flat – County Court refusing claim of possession – Whether appellants revoking notice to quit – Whether appellants’ decision to bring possession proceedings being unreasonable or susceptible to proportionality challenge – Appeal allowed The appellant local authority owned a one-bedroom flat which was let to the respondent under a non-secure tenancy granted under Part VII of the Housing Act 1985. The respondent had a long history of persistent criminal offending mainly for shoplifting connected with his drug habit. The appellants had accepted that he was unintentionally homeless and in priority need and granted a tenancy from 14 September 2009 at a rent of £111.49 per week payable fortnightly in advance through housing benefit. By clause 2(d) and (j) of the tenancy agreement the respondent covenanted not to allow any other person to occupy or share in the occupation of the premises and “not to do or permit or suffer to be done” anything which might cause nuisance, damage, annoyance or interference with adjoining owners or occupiers. Between 2010 and 2011, when the respondent was in prison for prolonged periods, the appellants received complaints from neighbours about noise and nuisance from persons occupying the flat. The appellants eventually served a notice to quit on the respondent but, following a meeting with his probation officer, they agreed to give him another chance. When the disruptive behaviour continued the appellant brought proceedings for possession of the flat. The essence of the respondentÕs defence to the possession proceedings was that anyone using the flat during his absence had done so without his permission and in circumstances where he had been unable to prevent it. He also raised a defence under article 8 of the European Convention on Human Rights on the grounds of his vulnerability as an ex-offender and drug addict. The county court dismissed the claim for possession holding, inter alia, that, by agreeing to give the respondent another chance, the appellants had revoked the notice to quit and reinstated the tenancy in its original terms, as if there had never been a termination. Accordingly, the appellants had no cause of action on which to base their claim for possession. The appellants appealed. Held: The appeal was allowed. (1) Although the appellants had alleged in terms that the respondent had acted in breach of the tenancy agreement, the existence of a breach of covenant was not a pre-requisite to the service of a valid notice to quit or to the making of an order for possession. The court did not, as in the case of a secure tenancy, have to be satisfied that the appellants had made out one of the statutory grounds for possession and that it was reasonable to make the order. Since the notice to quit satisfied the statutory requirements as to form prescribed by regulations made under the Protection from Eviction Act 1977 and was contractually effective to determine the tenancy, subject to any public law defences, the appellants were entitled to an order for possession. The only question for the court was whether the order should be for immediate possession or should be postponed up to the limits permitted by section 89 of the Housing Act 1980. (2) It was possible for a tenant under a non-secure tenancy to raise a pure article 8 defence to a claim for possession and for the court to consider whether the making of a possession order would be necessary in a democratic society. It was for the tenant to raise the proportionality challenge by way of defence and to establish a seriously arguable case that his own circumstances overrode the particular exercise by the council of its public responsibility to manage the available public housing stock for the benefit of the community as a whole. Only in exceptional cases would it be possible for the tenant’s personal circumstances to establish a claim to maintain a home under his existing tenancy: Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 186; [2011] 09 EG 164 (CS) applied. (3) As a matter of law it was impossible for the appellants to revoke the notice to quit. Once served it was effective to determine the tenancy according it its terms. Even if the appellants had made an irrevocable decision not to rely on the notice the tenancy would still have come to an end: see Tayleur v Wildin (1868) LR 3 Ex 303. The tenant’s security would therefore depend upon the grant of a new tenancy which in an appropriate case might be inferred from the landlord’s acceptance of rent after the expiry of the notice to quit. Therefore the respondent’s contractual defence to the claim for possession turned solely on whether by allowing him to remain in possession of the flat until trial and by accepting his housing benefit, the appellants had evinced an intention to create a new tenancy. On the evidence, the decision to give the respondent another chance was never more than conditional and the respondent had remained in the flat as no more than a tolerated trespasser. (4) In all the circumstances, the decision to make a claim for possession was not Wednesbury unreasonable. On the evidence, once the respondent had broken the strict licence conditions which had been reasonably imposed, the factual premise upon which the appellants had arranged for him to stay in the flat disappeared. The appellants were obliged to have regard to the most beneficial use of their available housing stock in the interests of all their tenants. (5) Furthermore, the appellants’ decision was not susceptible to a challenge under article 8 which required the court to ask whether the case surmounted the high hurdle of qualifying for a proportionality review. The decision to seek possession was driven by the need to control the effect on neighbours of what had occurred at the flat. To say that the respondent was not responsible for that conduct did not lessen that imperative. At most it provided a factor to be considered when deciding whether the need to obtain possession outweighed any adverse impact on him. The respondent’s personal circumstances did not raise a sufficiently compelling case to require a full-blown proportionality review. Nothing had been identified to take his case outside the ambit of a conventional balancing exercise between the interests of the respondent and those of the other tenants. A challenge to the decision on proportionality grounds had no real prospect of success. Philip Glen (instructed by Southampton & Fareham Legal Services Partnership) appeared for the appellants; Felicity Thomas (instructed by Swain & Co) appeared for the respondent. Eileen O’Grady, barrister
