Court upholds dismissal of possession proceedings on human rights grounds

A borough council has failed to persuade the Court of Appeal to overturn the dismissal on human rights grounds of a possession claim against an introductory tenant.

In Southend-On-Sea Borough Council v Armour [2014] EWCA Civ 231 the respondent, Robert Armour, had become an introductory tenant in January 2011.

However, within two months there had been three complaints from neighbours, a member of staff and electricians about his behaviour.

Southend, as landlord, served notice of possession proceedings alleging, by reference to these incidents, that Armour had been guilty of conduct causing or likely to cause nuisance or annoyance.

Armour requested a review, but the panel upheld the council’s decision to seek eviction.

The local authority began proceedings for possession on 7 June 2011. However, various procedural delays meant the case did not come to trial before Ms Recorder Davies until 2 March 2012 – nearly a year before the last of the three incidents.

At the beginning of the trial, the Recorder allowed an amendment to the pleadings through which Armour raised a defence under Article 8 of the European Convention on Human Rights.

Ms Recorder Davies held that Southend’s decision to initiate proceedings for possession had been a reasonable decision and that at the date of issue of proceedings the tenant would have had no defence.

However, the Recorder held that the question of proportionality of making a possession order fell to be decided as at the date of trial. She said she had to balance the duty and obligations of the council towards its tenants, prospective tenants and the community it served against Armour’s personal circumstances.

Ms Recorder Davies ruled that a possession order was no longer proportionate.

What tipped the balance was that despite his mental health problems (identified before the case came to trial) Armour had kept to the terms of his tenancy for nearly a year.

The Recorder said that if a possession order were refused, Armour’s tenancy would become a secure tenancy. He would be at risk under that tenancy if there was any repetition of anti-social behaviour.

Armour’s desire to keep his tenancy was supported by his probation officer, his community worker and members of his family. The anti-social behaviour had stopped as soon as he had been served with the notice seeking possession.

Southend appealed to the High Court but Cranston J rejected that appeal. The principal ground was that Ms Recorder Davies had applied too generous a test to Armour.

The council took the case to the Court of Appeal, arguing that the trial judge had applied an insufficiently rigorous test in deciding that the making of a possession order against Armour was not proportionate. The authority also sought to raise new points relying on fresh evidence.

Lord Justice Lewison, who gave the judgment of the court, said: “The question is not whether the circumstances are exceptional because as the Supreme Court pointed out in Pinnock exceptionality is an outcome rather than a test. Where, as here, the tenant under an introductory tenancy gets off to a shaky start, but mends his ways for almost all of the one year period, I consider that that improvement in behaviour is capable of being a factor in deciding whether it is disproportionate for the landlord to continue to insist on recovering possession. What weight to give it is a question for the trial judge.

“In my judgment, on the material that was before the Recorder she was entitled to come to the conclusion that by the trial date, it had become disproportionate to make a possession order. Other judges might have come to a different conclusion, but that does not mean that the Recorder's conclusion in our case was wrong.”

The Court of Appeal also rejected Southend’s application to rely on fresh evidence, which the council claimed undermined the evidence given on Armour’s behalf at trial

The court set out a stricter test for such evidence being introduced on second appeals.

Jan Luba QC of Garden Court Chambers appeared for Armour.