Tackling a trio of defences to a possession claim

A recent High Court housing case considered issues around public law, proportionality and incompatibility. Michelle Caney and Eloise Marriott analyse the key themes in the judgment and draw together practical guidance for tackling such defences.

In Dudley Metropolitan Borough Council v Marilyn Mailley [2022] EWHC 2328, the High Court explored a trio of defences to what started life as a straightforward possession claim. The defences raised were:

1. Public law challenge;
2. Article 8 proportionality; and
3. Article 14 incompatibility defence.

Factual background

In May 1965, the Defendant’s Mother was granted a tenancy of a three-bedroom family home with two living rooms downstairs (“the Property”). Following the Housing Act 1980 coming into force on 3 October 1980, the Defendant’s Mother became a secure tenant.

The Defendant had lived at the property since she was 11 years old, save for a short period when she attended university. At the time of the trial, the Defendant was 68 years old.

In 2013, the Defendant’s Mother signed a power of attorney in favour of the Defendant. By this time, her health had started to deteriorate but she retained mental capacity.

In 2014, the Defendant’s Mother became seriously ill. She required substantial care which was provided by the Defendant and local authority carers. In March 2016, the Defendant’s Mother was taken to a care home, initially for respite care. By October 2016, it was decided that she should remain at the care home permanently. The Defendant’s Mother never returned to the Property after March 2016. The Defendant remained in occupation.

After the decision was made to make her a permanent resident at the care home, a Notice to Quit (“the NTQ”) was served in November 2016. It was the Claimant’s case that:

1. The tenant was no longer occupying the Property as her only or principal home;
2. The tenant condition was therefore not met, causing security of tenure to lapse;
3. As such, the NTQ had the effect of terminating the subsisting contractual tenancy;
4. At the expiry of the NTQ, the Defendant became a trespasser at the Property.

Following service of the NTQ, the Claimant confirmed that it would be willing to provide the Defendant with suitable alternative accommodation and invited her to make a housing application. She did not identify any support needs, health conditions or disability. In the course of the judgment, the Court made findings that the Defendant was actively engaging with the Claimant and was accepting of the fact that she would need to move at that stage. 

The Defendant’s mental health was a central feature of the case. In January 2017, the Defendant was diagnosed with depression and was prescribed medication. When the Defendant returned to the GP in March 2017, however, her GP records confirmed that her condition was deemed to have resolved; she had no residual depressive symptoms and she had made a good recovery. Importantly, the records confirmed that the Defendant did not report further depressive symptoms until after the commencement of the court proceedings.

A further key feature of the case concerned the condition of the Property. After the Defendant’s Mother moved into residential care, the Housing Manager found that the Property was cluttered to such an extent that all but one of the bedrooms were inaccessible as they were being used to store belongings, mainly those of the Defendant’s deceased relatives. The Claimant made a number of attempts to assist the Defendant, including making a referral to the social services, none of which were accepted by the Defendant.

During 2017, the Claimant offered the Defendant various alternative properties, which were all declined. As a result, possession proceedings were ultimately issued on 19 January 2018.

On 18 January 2018, the Defendant’s Mother sadly died at the care home. Understandably, the Defendant’s mental health declined following the death of her Mother.

The Defence

The Defendant instructed solicitors and a defence was filed in March 2018. The original Defence pleaded that the Defendant had:

1. Hoarding issues and possible neglect/self-neglect and alleged a failure to make any enquiry or referral; and
2. Mental health/depression.

It is worth pausing to note that Mr Justice Cotter criticised the manner in which the Defence had been pleaded [48], [75], [109]. These matters did not appear to be consistent with the evidence available at the time or indeed the Defendant’s own view of herself; throughout the Defendant did not identify herself as having a hoarding disorder and it was clear that the Claimant had repeatedly offered the Defendant support. Similarly, at that time, the decline in the Defendant’s mental health was a recent occurrence, which the Claimant could not have been aware of on issuing proceedings. It was noted (at [48]) that:

“As I indicated during the hearing I am very troubled how this came to pass. The defence was in my view set out in unfortunate and misleading terms. In any event I find as a fact that the Defendant knew that she had been very resistant to any further referral in terms of self neglect. Had the Defendant indicated any willingness to engage with the help offered by the Claimant in respect of the state of her property then it is quite clear (and I am satisfied that the Defendant would not disagree) that Ms Sharma, a very supportive and caring housing officer would have been very happy to liaise and provide it. She did not indicate any willingness and still does not believe she neglects herself. I struggle with what instructions her solicitor received from her such that the matters were pleaded as they were.”

This is an important reminder to all practitioners that statements of case must be grounded in the evidence and, of course, their instructions.

Throughout the proceedings, various amendments were made to the Defence. As set out above, three strands of the defence were pursued by the Defendant at trial:

1. Public law challenge;
2. Article 8 proportionality; and
3. Article 14 incompatibility defence.

An alleged breach of the public sector equality duty was also pleaded but abandoned when closing submissions came to be made. Each of the live defences are dealt with in turn.

(1) Public Law Challenge

The Defendant asserted that the decision to issue the possession proceedings was unlawful in public law terms. The Claimant’s policy provided for a right to a review by a Team Manager on the request of the occupant (“the Lettings Policy”). The Defendant asserted that the Claimant was in breach of the Lettings Policy, in that they had failed to give the Defendant a right to review and the Claimant had failed to give proper consideration to granting the Defendant a tenancy under the Lettings Policy. 

The Claimant accepted that prior to the commencement of the proceedings, the Defendant had not been offered a review of the decision to serve the NTQ. However, in March 2018, following receipt of the Defence, the Claimant did offer a review. A further offer was made in May 2018, following receipt of expert evidence. Ultimately, the Claimant was informed that a review would be undertaken in July 2021 and she was invited to provide written representations or make oral representations. The Defendant failed to engage with either offer and at no point applied for an exception pursuant to the Lettings Policy. No representations were made at the review held in July 2021.

The Court determined that:

1. Had a review been offered when the NTQ was served in November 2016, the same conclusion would have been reached. There was no evidence that the Defendant was suffering with depression at that time [41], [144];
2. Criticism was levelled at the Defendant for pursuing this argument. The judge commented that it would be difficult to sustain a criticism of the Claimant’s review process, in circumstances where the Defendant had entirely failed to engage with the review, despite repeated invitation [56], [143]; and
3. Ultimately, the Court reasserted the high bar that must be met to establish a public law defence and concluded (at [146]) that:

“As emphasised in cases such as Doran v Liverpool City Council [2009] 1 WLR 2365 and Leicester City Council v Shearer [2014] HLR 8, a public law defence presents a high hurdle. On the facts of this case the defence does not come close to clearing it.”

(2) Article 8

The second limb of the defence asserted that an eviction would amount to a breach of the Defendant’s Article 8 rights. Three particular strands of this defence were raised:

1. The Defendant’s mental health;
2. The length of her occupation; and
3. The potential impact of eviction on the Defendant.

The Defendant’s mental health was subject to a large number of expert reports. Both parties instructed experts. The Defendant instructed two experts, the second of which produced a total of seven reports and addendum reports.  

The Court concluded that the Defendant did suffer with prolonged grief following the death of her Mother and mild depression. However, the Defendant did not have a disability within the meaning of section 6 of the Equality Act 2010; the conditions did not have a substantial effect on her ability to carry out normal day to day activities [127]. The Court took the view that the Defendant’s expert had failed to take account of the full chronology of events regarding the Defendant’s day to day activity, which included her searching for work, regularly visiting friends and indeed caring for others [118], [122]. Arguments that the Defendant was able to carry out day to day activities because she was simply ‘putting on a brave face’ were dismissed. Instead, the Court preferred the clear evidence given by the Claimant’s expert as to the extent and impact of the Defendant’s depression [125].

Hoarding behaviour was also relied upon in defending the claim. It is important to note that neither the Claimant nor the Defendant’s experts considered that the Defendant had a hoarding disorder. Submissions were made on the part of the Defendant that the hoarding would be worsened in a smaller property. The Court took an inherently pragmatic approach, noting that the process of downsizing would force the Defendant to tackle these hoarding behaviours and, in any event, a smaller property without stairs was likely to be safer [161].

In respect of the alleged lack of support offered by the Claimant, Mr Justice Cotter provides helpful commentary (at [106]) that:

“In my judgment there has to be an element of practical realism taken into account before criticism is levelled (and maintained) at a housing provider in respect of a lack of support for a tenant… There was, and is, a limit to what can be expected of a body such as the claimant in the circumstances. To follow the equine metaphor in relation to available assistance you can take a horse to water but you cannot make it drink. The Defendant has failed to co-operate with the Claimant. She has made communication difficult, avoided meetings/appointments and engaged only when necessary /unavoidable and largely on her terms.”

The Court weighed into the assessment the length of time the Defendant had lived at the Property and acknowledged that it has been the centre of her world and that the eviction process would be likely to cause anxiety. Nevertheless, the Court concluded (at [161]) that possession was proportionate:

“The Defendant does not want to move and the process will cause some anxiety. However if she remains in the property it will be significantly underoccupied, she will remain in the grip of grief and she will be at risk of injury due to its cluttered state (as she will reject help as she does not perceive she is a hoarder). If she moves a family will get suitable accommodation, as will the Defendant.”

(3) Article 14: Incompatibility Defence

Practitioners will no doubt be familiar with the provisions of section 87 of the Housing Act 1985. In short, a person is qualified to succeed under a secure tenancy if they occupy the property as their only or principal home at the time of the tenant’s death and, in the case of a family member, have resided with the tenant for a period of 12 months ending with the tenant’s death. If the tenancy ends prior to death, there is no right of succession.

It was described on her behalf as an “an accident of the time, cause and place of her mother’s death” that deprived the Defendant of the statutory right to succeed that she had from October 1980 to October 2016. As Mr Justice Cotter observed when laying out the framework for the case at [3]:

“Had Mrs Dorothy Mailley died at home at any time from the date that Section 30 Housing Act 1980 (the predecessor of Section 87 Housing Act 1985) came into force in October 1980 until the date in October 2016 that it became clear that she no longer had any realistic prospect of returning home (from the nursing home into which she had been admitted for respite care earlier that year), the Defendant would have been entitled to succeed to her mother’s tenancy pursuant to  Section 87 Housing Act 1985. Further, at the time when she retained mental capacity Mrs Dorothy Mailley could have assigned the tenancy to her daughter Marilyn as a qualifying successor under Section 91(3) Housing Act 1985 (although the Defendant had a lasting power of attorney, she could not use that power for her own benefit). There can be little doubt that Mrs Dorothy Mailley would have wanted the Defendant to continue living at No 19.”

The Defendant argued that section 87 was incompatible with Article 14 of the European Convention of Human Rights, if it was not possible to read down section 87 to include the following wording:

“[T]he members of the family of those removed by reason of their ill health who due to mental incapacity cannot assign their secure tenancies under Section 91(3) Housing Act 1985” [165]

Before considering the Court’s analysis, it is important to set out the basis on which the Defendant’s argument was made. In the essence the argument proceeds as follows [166]:

a. A family member who lived with a tenant for 12 months before the tenant became ill, such that they could not reside at the property was an analogous situation to:

i. A family member who lived with the tenant for 12 months prior to their death; or

ii. A family member of a tenant who became ill such that they could not reside at the property but had capacity to assign the tenancy;

b. Whilst in the first scenario the family member would have no right of succession, the family member in the other scenarios would be entitled to succeed under section 87 of the Housing Act;

c. The family member in the first scenario was being discriminated against on the basis of their status;

d. The relevant status in the first scenario was being a family member of a tenant who had permanently ceased to reside at the property and did not have mental capacity to enable them to assign their tenancy to a potential successor under section 91(3) of the Housing Act 1985; and

e. This discrimination was not capable of justification.

When dealing with the question of incompatibility, the Court must consider four questions (R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831):

(1) Does the treatment complained of fall within the ambit of one of the Convention rights?

(2) Is that treatment on the ground of some ‘status’?

(3) Is the situation analogous to that of some other person who has been treated differently?

(4) Is the difference justified: is it a proportionate means of achieving a legitimate aim?

The Court determined that the argument would fail on questions (2) to (4).

Status

In the decision in MOC (by his litigation friend, MG) v Secretary of State [2022] EWCA 1, the Court held that capacity could not amount to a ‘status’ for the purpose of Article 14 (MOC [65], [76]). It was argued on behalf of the Defendant that the status identified was not defined by the issue of capacity alone, but rather status was defined by being the daughter of a tenant with those particular characteristics.

Mr Justice Cotter determined that the incapacity of a third party cannot be sufficiently certain to provide status for the purpose of Article 14:

1. Status requires a characteristic which is of reasonable certainty. Capacity may be lost and regained. A lack of capacity may result from a chance occurrence [183];
2. Further, a practical issue may arise, in circumstances where a tenant regains capacity and does not wish to assign their tenancy or wishes to return to the property. They would be entitled to do so unless the NTQ had been served and expired. However, this may place them in conflict with a family member who wishes to succeed the tenancy [185].

Analogous situations

The Court determined that the two scenarios proposed by the Defendant were not analogous. If a family member succeeded a tenancy on the tenant being required to leave the property, but lacking capacity such that they could not assign the tenancy, the tenant would lose their right to the property, even if they regained capacity. This would create a conflict with the family member who succeeded the tenancy. There would be no such conflict in the circumstances of succession on death or a voluntary assignment [188].

Justification

In any event, Mr Justice Cotter determined that any discrimination was a proportionate means of achieving a legitimate aim:

1. The legitimate aim of the section was to achieve certainty. The legislation ensures that tenants, local authorities and others are clearly able to identify those individuals who should be entitled to succeed to a secure tenancy with certainty [196]; and
2. A second legitimate aim was to ensure that social housing is allocated to those who are most in need of it [197].

Outcome

All three defences were rejected and an outright possession order was made.

Practical guidance

This case demonstrates the importance of a number of practical steps that can be taken both pre and post issue, as well as at trial:

a. In public law terms, it is important to ensure that a review is offered wherever a landlord’s policy envisages this will occur.

b. Even if a review has not initially been offered, it may be possible to remedy this defect by offering a review at a later stage. 

c. Should the occupier fail to engage with the review, a review should nonetheless be carried out, even if as a paper only exercise.

d. A clear and detailed record should be made of any decision made at the review.

e. As decision making is an ongoing process for the purpose of public law, landlords would be well advised to review their decision at the following stages:

1. 1. Prior to the service of the notice;
   2. Prior to the issue of any proceedings;
   3. On receipt of relevant medical evidence;
   4. On receipt of a relevant expert report; and
   5. Following any other significant change in circumstances.

f. This case is an important reminder that the existence of a mental health or other health condition does not necessarily amount to a qualifying disability. It should not be forgotten that it must also be established that the condition has a substantial impact on an individual’s day to day life in order to amount to a disability.

g. When opposing an Equality Act / Article 8 defence, it would therefore be wise for landlords to consider the evidence available as to the occupier’s day to day life and conduct, for instance whether they work and their level of social engagement.

h. Where mental health or other health conditions are raised, landlords should consider referring occupiers to relevant support services. This case also demonstrates the importance of housing officer or the Claimant’s staff having open lines of communication with the occupier. Careful records should be kept of the steps taken.

i. Where appropriate, landlords should give consideration to whether an alternative property should be offered and support should be given to assist the occupier to apply for the same. It is advisable to ask the occupier to give reasons for rejecting any property offered. Again, clear and careful records should be kept of:

i. The type of property offered;

ii. Why the property was considered to be suitable; and

iii. The Defendant’s response.

j. Practitioners should not be afraid to advance pragmatic arguments, notwithstanding the existence of mental health or physical health conditions. For instance, in this case, the Court accepted the argument that the Defendant would be assisted by the process of downsizing and moving away from the place that her grief was tied to.

Conclusions

This important High Court decision helpfully restates the principles relevant to public law and Article 8 defences and once again emphasises the high bar for such defences to succeed. As to the more novel argument concerning the compatibility of the succession legislation with Article 14, the need for certainty in the law won over the Court’s understandable sympathy for the Defendant’s individual situation. As the Judge ultimately concluded:

“It is a bright line rule and a tenant, the landlord and any potentially qualifying cohabitee know where they stand…That on occasion it may produce what appears on one view to be an unfortunate result is no justification for seeking to engineer an exception.” [196]

Michelle Caney and Eloise Marriott are barristers at St Ives Chambers. Michelle appeared for Dudley while Eloise was her pupil at the time that the case was originally listed for trial.

Law is correct as at 7 November 2022

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.