Starter tenancies survive

The Court of Appeal has enabled housing associations to operate starter tenancies with greater confidence. Andy Lane and Daniel Skinner explain why the court’s conclusions are important.

On 13 March 2012 the Court of Appeal handed down judgment in Corby Borough Council v Nicholle Scott; West Kent Housing Association Ltd v Jack Haycraft [2012] EWCA Civ 276. In Corby Ms Scott was an introductory tenant, whereas in West Kent Mr Haycraft was an assured shorthold tenant under a starter tenancy.

Both cases were won by the landlords, who had brought possession proceedings on mandatory grounds. Both tenants had argued that eviction would breach Article 8 of the European Convention on Human Rights:

“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

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(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The question for any court faced with such a defence will be whether making a possession order would be lawful and proportionate.

Mr Haycraft was 21 when he entered into his starter tenancy of a flat with West Kent in May 2009. From the time he began moving in, West Kent received complaints as to his behaviour, including an allegation of indecent exposure; in August 2009 his tenancy was “failed” and a notice requiring possession (under s.21 Housing Act 1988) was served the following month. Mr Haycraft, who denied the allegations, took advantage of West Kent’s internal review procedure but in January 2010 the panel hearing his case confirmed the August decision.

A fresh notice requiring possession was served in March 2010 and accelerated possession proceedings issued in June. Mr Haycraft appealed against a possession order made by the Deputy District Judge but in February 2011 HHJ Simpkiss dismissed the appeal, without hearing evidence. He was not impressed with Mr Haycraft’s attempt to challenge the indecent exposure allegation, as it consisted simply of a denial. The judge considered the facts relied on by Mr Haycraft:

  • that there had seemingly been no complaints since July 2009,
  • that he had been previously homeless,
  • that he had liver and kidney problems,
  • that he had got married and now had a child.

The judge felt none justified a full hearing of the possession claim and did not allow the appeal.

Ms Scott began her introductory tenancy of a flat in Corby in December 2009 but from May the following year rent arrears started to accrue. The Council served a notice of proceedings for possession in August 2010, when her arrears were some £287, but when her mother paid these off the Council decided to extend the introductory tenancy by six months rather than seek possession. Unfortunately, by September 2010, Ms Scott had fallen into arrears again, and in October 2010, when the arrears were some £285, the Council served another notice of proceedings for possession. She did not avail herself of the right to a review and possession proceedings were issued in December.

The day before the hearing in July 2011 the arrears had again been cleared, this time as a result of payments by Ms Scott’s mother and grandmother. HHJ Hampton accepted that the Council was entitled to possession, and that she could refuse an order for possession under Article 8 only if Ms Scott could establish exceptional circumstances. She rejected the contention that the fact that Ms Scott had a drink problem, had been the victim of an assault or that there had been anti-social behaviour rendered the case exceptional.

However, despite this, HHJ Hampton was "just persuaded by [Ms Scott’s] particular circumstances that there are exceptional circumstances which arise here": "The circumstances … are exceptional because of the gravity of the assault and that is my principal reason for finding these circumstances to be exceptional. They are also exceptional because the arrears had in fact been paid. I have taken into account, although I do not regard it as an exceptional circumstance, that [Ms Scott] has had an opportunity to consider her position while in custody … [and] that she has a loving mother and grandmother who have supported her …"

Both cases concern the Supreme Court decision in Manchester City Council v Pinnock [2010] UKSC 45. This held that any person at risk of losing their home in possession proceedings should have the right to have the question of proportionality determined by an independent tribunal in the light of Article 8. Lord Neuberger stated:

  1. It will only be in exceptional cases that Article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain (paragraph 45).
  2. Proportionality will be assumed and does not ordinarily have to be pleaded in the particulars of claim, it only having to be dealt with if raised by the occupier (61).
  3. The court should initially consider such a defence summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained (61).
  4. The fact of ownership, compliance with the domestic process and the right to manage one’s stock are always good indicators of proportionality (52-4).
  5. The court, in considering an “Article 8 Defence”, has the ability to “resolve any relevant dispute of fact” and form its own view in its consideration of the proportionality issue, but that is so only in the “appropriate case” (49; 74)

Mr Haycraft’s central complaint was that the matter should have been remitted with directions for trial and the testing of the allegations against him. Corby argued that the judge had erred in considering factors which bore no relevance to the Article 8 issue before her.

The Court of Appeal dismissed Mr Haycraft’s appeal and allowed that of Corby.

What we learn from the appeals

  1. Good decision making: the court felt it relevant that, although Mr Haycraft disputed the factual basis for West Kent’s action in taking possession proceedings, this had been properly investigated: “28. ...The indecent exposure allegation, on which the Association’s decision to seek possession was essentially based, was properly investigated by the reviewing panel, who concluded that it had occurred. That conclusion was clearly articulated and well reasoned, and it was arrived at after a hearing. As the Judge said, Mr Haycraft had not come up with any new points which called the finding into question, or any challenge to the procedure or reasoning involved in the review.”
  2. Relevance: it is not enough to demonstrate exceptionality in personal circumstances. They must relate to the question before the court. It may well have been exceptional for Ms Scott to have been the subject of a “murderous attack” but this was irrelevant to the question the judge had to consider (paragraph 27).
  3. Impact of eviction: the court acknowledged that both tenants had health issues but found that in the absence of evidence as to the impact of eviction this was of little relevance (24; 29).
  4. Homelessness and Intentionality: Lord Neuberger said: “30...[the possible finding of intentionality] 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 re-housed 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.”
  5. Existing commitments: the fact that Ms Scott had cleared arrears was hardly impressive given that she was contractually obliged to pay her landlord (25).
  6. Context: it was crucial to note that these tenancies were probationary (32). The High Court judgment in The Riverside Group Ltd v Sharon Thomas [2012] EWHC 169 (QB) confirmed the sense of such an approach: “49. Accordingly the relatively low threshold for termination of the starter tenancy taken together with the procedural safeguards set out above ensure that in this case the decision to seek possession is one which is plainly justified."

The current decision gives comfort to landlords dealing with probationary tenancies. There had been a tendency for county courts to simply list possession claims involving an Article 8 defence for a lengthy trial with the intention of deciding issues of fact. The effect blurred the distinction between the landlords’ right to possession in mandatory cases, such as starter and introductory tenancies, and the requirement to prove grounds and reasonableness in discretionary claims against secure and assured tenants; that wrongly negated the purpose of probationary schemes.

Andy Lane, barrister at Hardwicke, represented West Kent Housing Association in the appeal. Daniel Skinner, the solicitor acting for West Kent, is Head of Housing at Batchelors.

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