Demoted tenancy – Possession proceedings – Section 143B of Housing Act 1996 – Appellant’s secure tenancy demoted on grounds of anti-social behaviour by family members – Possession notice served by respondent local authority landlords – Review panel upholding notice – County court conducting judicial review of panel’s decision and granting possession order – Extent of county court’s review jurisdiction – Role of Article 8 of European Convention on Human Rights – Appeal dismissed
The appellant and his partner occupied a property let by the respondent council; the appellant had lived in the property for 30 years. They had five children, including four sons. In 2005, the appellant’s secure tenancy was demoted on an application by the respondents under section 82A of the Housing Act 1985, as amended by the Anti-Social Behaviour Act 2003 on the ground of anti-social behaviour by the appellant’s family.
In 2008, shortly before the demoted tenancy would have become a secure tenancy by virtue of section 143B(1) of the Housing Act 1996, the respondents served notice of possession proceedings under section 143B(3), alleging further acts of nuisance and criminal offences committed by two of the appellant’s sons. The review panel upheld the notice. In doing so, it took into account a burglary committed by the youngest son, notwithstanding that his conviction post-dated the service of the possession notice.
The respondents issued proceedings for possession. In his defence, the appellant alleged various irregularities, including a breach of Article 8 of the European Convention on Human Rights. Following a judicial review of the panel’s decision, the county court judge found that although the panel had erred in certain respects, it had had before it material on which it was entitled to uphold the respondents’ decision to seek possession. Accordingly, he granted a possession order.
The appellant appealed. The appeal court considered issues as to the matters to be taken into account by a landlord when deciding whether to seek possession of a property subject to a deemed tenancy and the task of the courts when reviewing that decision.
Held: The appeal was dismissed.
(1) Where a demoted tenancy order had been made, the landlord’s subsequent decision to seek possession was not subject to the requirement of proportionality. Obtaining possession was only the second part of a two-stage process. The first stage, an application for a demotion order, involved the court, as an independent and impartial tribunal with full jurisdiction on fact and law, finding that the tenant, or a person residing in or visiting the dwelling-house, had engaged or was threatening to engage in anti-social behaviour and that it was reasonable to make the order. The test of reasonableness was no different to the requirement of proportionality under the Convention, and specifically Article 8. Therefore, where a demotion order had been made, the court had already found the removal of security of tenure to be a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him. In such circumstances, the landlord’s subsequent decision to obtain possession required little justification. The second stage should be taken to satisfy the requirements of Article 8(2) provided that the landlord’s decision was not one that no reasonable person would consider justifiable: Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465, Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636, Doran v Liverpool City Council [2009] EWCA Civ 146; [2009] BLGR 395 and Central Bedfordshire Council v Taylor [2009] EWCA Civ 613; [2009] NPC 82 applied. On a judicial review of the landlord’s decision, the applicable grounds were the same as those available on a non-Convention domestic review, subject to the rationality test as extended in Doherty.
(2) The decision of the review panel was susceptible of judicial review by the Administrative Court. However, the county court lacked the necessary jurisdiction to carry out such a review. Section 143D of the 1996 Act restricted the county court to considering whether the procedure under section 143E and 143F had been followed. The court could review neither the substance or rationality of the landlord’s decision nor whether it was consistent with the tenant’s or other occupiers’ Convention rights. If the county court concluded that the procedure had not been followed, , it would not make an order for possession; but if the procedure had been followed, the court was bound to make the order. Section 143N did not widen the jurisdiction expressly restricted by section 143D. Since, in the instant case, there had been no suggestion that the statutory procedure had not been followed, the judge had been obliged to make an order for possession.
Per curiam: The reasons for possession given in a section 143B(3) notice did not have to be a breach of the tenancy agreement; the language of section 143(2)(b) was very wide and a landlord’s reasons could encompass any matter relevant to the management of its housing estate, provided that it arose or became known after the date of the demotion order and could not therefore have been taken into account when that order was made. On a review under section 143F, it was permissible to take into account events that post-dated the possession notice provided that that could be achieved in a just manner. What fell to be determined was whether, at the time the review was carried out, the landlord had good reason to seek possession; therefore, a review panel could lawfully decide to uphold a decision to seek possession even if all the matters referred to in the notice were unfounded or irrelevant, provided that anti-social behaviour would justify a decision to obtain possession.
Richard Drabble QC (instructed by Platt Halpern, of Manchester) appeared for the appellant; Andrew Arden QC and Jonathan Manning (instructed by the legal department of Manchester City Council) appeared for the respondents; Daniel Stilitz (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government, as intervener.
Sally Dobson, barrister
