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Appeal judges rein in article 8 defence in possession proceedings

15 March 2012

The Court of Appeal has reined in the use of the article 8 defence to possession proceedings, in two cases involving an introductory and a starter tenancy.

In Hounslow v Powell [2011] UKSC 8, the Supreme Court ruled that councils and housing associations must consider the question of proportionality before deciding to evict people on introductory tenancies (see, 28 February 2011).

Delivering judgment at the Court of Appeal, Lord Neuberger said in the circumstances of introductory or ‘starter tenancies’, it would only be in exceptional cases that the courts should consider article 8.

The court heard in Corby v Scott [2012] EWCA Civ 276 that Nicholle Scott was served with notice of proceedings after falling into arrears and the council received complaints about noise coming from her flat.

In the related appeal, West Housing Association v Haycraft, a notice requiring possession was served on Jack Haycraft after an allegation of indecent exposure and other allegations of noise and nuisance were made against him.

Lord Neuberger said the facts in Corby got “nowhere near” to justifying the contention that it would be disproportionate for the council to obtain possession under article 8.

He said the fact that Scott had been subjected to a “murderous attack” in 2010 was “simply irrelevant”. Nor did he think it was “impressive” that her rent arrears were cleared the day before the county court hearing.

In Haycraft, he said the indecent exposure allegation, on which the association’s decision to seek possession was based, was properly investigated by a reviewing panel which concluded that it had occurred.

Lord Neuberger said that since Haycraft now had a wife and a child, he may well have to be rehoused anyway.

“Further, and more generally, this is, in my view, not a significant factor so far as the article 8 proportionality argument is concerned. First, article 8 is primarily concerned with respect for his particular home, as opposed to a general right to be provided with a home.

“Secondly, the right to be rehoused appears to me to be a factor weighing against the article 8 claim prevailing, rather than the absence of such a right being a factor in favour of such a claim prevailing.”

Lord Neuberger said Corby emphasised that judges should be “rigorous” in ensuring that only relevant matters were taken into account and not let “understandable sympathy for a particular tenant have the effect of lowering the threshold”.

He said Haycraft showed “how exceptional the facts relied on by any residential occupier must be before an article 8 case can have a real prospect of success”.

The Master of the Rolls emphasised the desirability of a judge “considering at an early stage (normally on the basis of the tenant’s pleaded case on the issue) whether the tenant has an arguable case on article 8 proportionality, before the issue is ordered to be heard.

“If it is a case which cannot succeed, then it should not be allowed to take up further court time and expense to the parties, and should not be allowed to delay the landlord’s right to possession.”

Lord Neuberger allowed the appeal by Corby Borough Council and dismissed Haycraft’s appeal. Lord Justices Richards and Davis agreed.

Daniel Skinner, head of housing at Bachelors, acted for West Kent. “The article 8 defence is overused and not always dealt with properly by the courts,” Skinner said.

“We would hope that this decision will encourage courts to identify those minority of cases early where they should fully investigate the question of proportionality, as opposed to the much greater number where they can be dealt with on a summary basis.”

Robert Denman, employed barrister at Holden & Co in Hastings, said the Court of Appeal had confirmed that it was only in “very restrictive circumstances” that an article 8 defence could stand entirely on its own.

“This will limit use of the defence to some extent, but the door is still open,” Denman said.

“The fact is that if you have a tenant who is facing homelessness you must put forward everything you can on his behalf, especially if he is vulnerable or has a family. It would be wrong not to.

“The clearer the boundaries get, the easier it will be for the courts to deal with this at an early stage. People will know what a genuine case looks like.”

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Local government