Since the Court of Appeal decision in Weaver v London & Quadrant (2009) which decided that most social landlords were public bodies for the purpose of Human Rights law, especially when it came to Article 8 (the right to a home) it has been clear that there were going to have to be changes in how all the mandatory grounds of possession – those that didn’t depend on the discretion of a judge – were handled, in order to avoid challenges on public law grounds. It was argued that if a judge didn’t make the final decision because his hands were tied by the legislation the landlord’s decision to issue the proceedings could be challenged as a breach of (usually) article 8.
The standard required for the landlords, however, are not too rigorous – you just have to have a fair procedure and not make unreasonable decisions. But what is “unreasonable” and in particular does it incorporate the Human Rights concept of “proportionality”? It might be reasonable to try and recover possession of your house if the tenant is in arrears of the rent, but is it proportionate if he is only a few pounds over the 2 month limit for Ground 8 HA claims and he’s lived there for 20 years?
Up until now this has been a distant threat anyway as these sort of challenges have had to be made by way of Judicial Review applications in the Administrative Court, and few tenants can afford to do that. The worst that might happen in the County Court possession case was that if such an application was made the court might adjourn the hearing pending the result of an application for permission for JR, which was rarely granted.
Well, things are set to change. The Supreme Court decided on 3rd November in Manchester CC v Pinnock  UKSC 45 that in a claim over a demoted tenancy the County Court had jurisdiction to decide the proportionality point – was the decision to go for possession disproportionate, bearing in mind the landlord’s other duties and requirements? This should be decided summarily and the objection dismissed unless it clearly had merit. If it had then this might mean that a claim which was otherwise irresistible resulted in an extended period before possession, or a suspended order, or even the claim being dismissed.
Does this matter? There are very few claims involving demoted tenancies. The Supreme Court declined to give general guidance, pointing out that it would shortly hear Salford v Mullens covering introductory tenants and homelessness non-secure tenants and others and that would be a better case to use for guidance. The case was due to be heard on 23/24 November but the decision may be some time off, and the final details must wait until then.
However, there is some clear guidance that can be given at this stage to avoid potential problems in the future. And it is all good practice in any event:
- The claims most at risk in the social housing area are
- Ground 8 HA 88 (2 months rent arrears)
- S 21 HA 88 (ending ASTs – used for intermediate and introductory tenancies)
- Notices to quit or forfeiture brought by fully mutual housing associations, where there is no security of tenure
- Homelessness licences, demoted tenancies
- Claims against trespassers.
- In each case the landlord should
- Gather information about the facts – how much rent is in arrears, and why? What does the tenant do? Have they any children? Are there disabilities etc? And record this.
- A manager should decide how to proceed and set down the reasons for their decision in writing.
- If circumstances change significantly a manager should review the decision and again record their decision and reasons in writing.
- It may help to have written guidance but ultimately somebody must be allowed to look at the bigger picture and make a decision which they feel they can justify. This must include being proportionate, and taking into account the effect that the decision will have on the tenant as well as the extent of the fault – the amount of the arrears, the degree of disturbance or whatever.
- Some cases are easy – a Ground 8 claim against a shared ownership tenant with a mortgagee is virtually always justified, as the mortgagee will pay up and the tenant’s home is not seriously at risk. And there are very few times when it is unreasonable to remove squatters. Here the paperwork can be pretty simple.
- But other cases need proper detailed recording if you are to avoid the risk of having the claim upset, or seriously delayed, by a successful challenge in the County Court. And it may be easier in some cases to proceed under a discretionary ground (eg Ground 10) when it is the Judge who has to make the decision.
There are likely to be some changes in court procedure to take this into account and maybe more guidance, which we will pass on as soon as possible.
And those in the know suspect that something similar may spread into the private landlord field, as Human Rights make little distinction when it comes to such basic things as having a home.
[Post prepared 23.11.10]