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Making sense of it all

One of the first reported possession claim appeals since the Supreme Court decisions in Pinnock and Powell saw the High Court judge take a common sense approach, writes Robert Wassall.

In the case of Brian Holmes v Westminster City Council, heard in the High Court on 3/11/2011, it was decided that a judge was entitled to grant, on a summary basis, a local authority's claim for possession against a non-secure tenant who had not shown substantial grounds to establish the need for a hearing to find the facts that the local authority alleged had taken place.

The facts were that the local authority had provided H, who had a history of mental health problems, with homelessness assistance, in the form of a non-secure tenancy. H failed to attend two appointments for the inspection of his accommodation. As a result, the local authority maintained that it was no longer subject to its statutory duty to provide H with accommodation and it made a claim for possession. Following review, the local authority withdrew its decision that it was no longer subject to such a duty. However, it later alleged that H had assaulted two of its housing officers and it resumed possession proceedings. H filed a defence and the local authority applied for possession on a summary basis or for the defence to be struck out.

The court said that:

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  • there should be a summary determination of a claim for possession, wherever possible. In assessing the proportionality of granting the claim, in the light of the available evidence, the court was bound to take into account the competing rights and interests of the persons involved. That included the local authority's duty to protect its employees and to prevent them suffering harm in the course of their work
  • there was no need to adopt a trial process involving a determination of whether H had committed a criminal or civil assault
  • only if a defence is put forward that is seriously arguable, would be necessary for a judge to adjourn a case for further consideration of the issues of lawfulness and proportionality
  • the local authority had considered its antisocial behaviour policy in deciding to resume the possession proceedings and its actions were consistent with that policy
  • there was no cogent evidence to demonstrate a breach of the local authority's statutory duty under the Disability Discrimination Act 1995.

What this means for social landlords

This is one of the first reported possession claim appeals since the Supreme Court decisions in Pinnock and Powell. On the face of it, this case seems to say that claims for possession where the occupier does not have any security of tenure can (and should), normally be dealt with on a summary basis.

However, in this case a crucial consideration was the fact that the defence did not dispute the allegations of assault. In other words, there was no dispute about the facts on which the claim was based. This and the fact that the local authority had a policy which covered this situation (and which policy was scrupulously followed), meant that a robust judge was able and willing deal with the case in a way that was intended to avoid prolonged and expensive litigation.

If only more judges could be persuaded to do so...

Robert Wassall is a partner and head of social housing at Blake Lapthorn. He can be contacted on 023 8085 7012 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it. .



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