Stock control

A recent Court of Appeal ruling on human rights and defences to possession will give registered providers better control of their stock, says Sian Gibbon.

The recent Court of Appeal decision in Birmingham City Council v Lloyd [2012] EWCA Civ 969 ruled that Article 8 of the European Convention on Human Rights (the right to respect for private and family life) could only be used as a defence to an 'order for possession', in the most exceptional circumstances.  



In this case, the respondent was a tenant of the appellant council. The council had previously obtained an order for possession of the respondent's flat on the basis of rent arrears. Faced with the prospect of being made homeless, in September 2009 and without the permission of the council or his late brother's estate, the respondent moved out of his flat and into his deceased brother's property ("the Property"). The deceased brother had been a secure tenant of the council.

In early November 2009, the respondent made known his occupation of the property to the council, requesting at the same time an application form to claim housing benefits to maintain the charges at the property. The council informed the respondent that they were not willing to grant him a secure tenancy of the property. In March 2010, the council served a Notice to Quit on the Public Trustee in order to terminate the tenancy of the property; however, the respondent remained in occupation and so in October 2010 the council issued possession proceedings. 



At the first hearing, the Recorder dismissed the council's claim for possession, despite the fact that the respondent had always been a trespasser in the property, on the grounds that his would amount to a disproportionate interference with his Article 8 rights. It was stated that losing possession of the property may worsen the respondent's depression, make it difficult to obtain alternative accommodation in the public sector and cause problems for his business start up. Alongside this, the Recorder also attributed weight to the fact that the respondent was not responsible for acts of anti-social behaviour or criminality. 



On appeal the council made reference to Kay v Lambeth LBC [2006] in which Lord Bingham stated that it was difficult to envisage circumstances in which the concept of proportionality would require a trespasser to be given more time, and also to several other ECHR decisions that held that Article 8 could not be interpreted as requiring the state to tolerate unlawful occupation. 



The Court of Appeal stated that the Recorder had usurped the role of the council to coordinate their housing stock by dismissing the possession claim. The Appeal Judges stated that relevance had been attributed to the wrong issues and there had been an over-influence of personal sympathy for the respondent's situation, reinstating a high threshold not only for trespassers, but also occupiers and ex-tenants. 



In the future this decision will ensure greater protection for registered providers when seeking possession against trespassers, occupiers or ex-tenants who will not be able to use Article 8 as a defence against possession unless exceptional circumstances are demonstrated by a defendant. This is a positive move that will allow housing providers to better control and allocate housing stock without fear of Article 8 arguments being raised.

Sian Gibbon is a partner at Ashfords. She can be contacted on 01392 334101 or by This email address is being protected from spambots. You need JavaScript enabled to view it..