Birmingham City Council v Valin Stephenson
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Moore-Bick |
| Judgment Date | 27 September 2016 |
| Neutral Citation | [2016] EWCA Civ 1029 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2016/2501-B2/2016/2501(B)-B2/2016/2501(C) |
[2016] EWCA Civ 1029
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HHJ WORSTER)
Royal Courts of Justice
Strand
London, WC2
Lord Jusitce Moore-Bick
Lord Justice Lewison
B2/2016/2501-B2/2016/2501(B)-B2/2016/2501(C)
Ms Z Nabia (instructed by Community Law Partnership) appeared on behalf of the Applicant
Mr C Baker & Ms A Robins (instructed by Birmingham CC) appeared on behalf of the Respondent
Mr Stephenson is the tenant of a flat in Birmingham. The city council is his landlord. The tenancy is an introductory tenancy which gives no security of tenure.
The council received complaints about Mr Stephenson's behaviour at the end of 2014. The complaints mainly came from one of Mr Stephenson's neighbours who lives in the downstairs flat below and the complaints related principally to noise. Mr Stephenson's flat, I should add, has an uncarpeted floor. The noise emanated from various sources including loud music and television, arguments, the moving of furniture at night and so on. Some of the arguments seem to have taken place outside the flat but most of the noise came from within the flat itself.
After making contact with Mr Stephenson on a number of occasions the council decided to terminate his tenancy and seek possession. The council thus served notice of seeking possession on 1st May 2015. Mr Stephenson requested a review of that decision, as he is entitled to do, but the decision was upheld on review.
The important feature of the case is that Mr Stephenson suffers from paranoid schizophrenia, whose symptoms can be alleviated, though not completely cured, by anti-psychotic medication regularly taken.
The council issued a claim form on 24th September 2015. The particulars of claim pleaded the fact of the introductory tenancy and the council's decision to terminate it. It pleaded little else. But the particulars of the claim were accompanied by a witness statement from Ms Julie Burrows, an assistant housing officer employed by the council. She described the history of the complaints of noise nuisance. She also acknowledged that Mr Stephenson has what she described as "mental health issues" but asserted that although there was support for him he had failed to keep appointments for his medication. She said that Mr Stephenson had been told how important it was to keep his appointments to receive medication. The council's case was also supported by a witness statement made by Mr Stephenson's neighbour who gave evidence about the various incidents and produced a detailed written record of them.
The case came before Deputy District Judge Fowler in the County Court at Birmingham on 2nd November 2015. Mr Stephenson was represented by a duty solicitor. The judge adjourned the case to 13th January 2016 and directed that Mr Stephenson should use his best endeavours to file a defence in time for that hearing. The case duly came back to court on 13th January 2016 before Deputy District Judge O'Connell. This time Mr Stephenson was represented by a solicitor, Mr Gilmore. Mr Stephenson himself was not present at that hearing.
Ms Robins of counsel, for the council, accepted that Mr Stephenson was disabled for the purposes of the Equality Act but said that there were no substantial grounds for defending the claim and that the council's action in terminating the tenancy was a proportionate means of achieving a legitimate aim. Mr Gilmore explained to the Deputy District Judge that he had only been able to see Mr Stephenson on the Friday before the hearing when he was able to take initial instructions. He asked for a short adjournment in order to file and serve a fully pleaded defence. What he said was this:
i. "Now given that he is a vulnerable person, my understanding (under the Code of Guidance) is that Birmingham should liaise with social services before issuing this claim and I do ask whether there is any evidence in the papers of that liaison.
ii. Also, sir, I refer to the circular, No 2/97, with regard to the Housing Act 1996 and introductory tenancies. It says there is at number 10: 'Landlords should ensure that introductory tenancies can never be used as a weapon against a vulnerable individual and ensure there are safeguards to protect such tenants.'
iii. This is not a straightforward case. It is accepted by the other side that the Equality Act applies. Also, Article 8 of the Human Rights applies and proportionality."
He then referred to a letter from the council which said that Mr Stephenson's rent account was clear and that no recent complaints of anti-social behaviour had been made about him. He then continued:
i. "There is a lot to this case, sir, and it would be totally disproportionate, we would submit, to make a possession order today without giving the Defendant the opportunity (now that he has actually made contact with us) to file and serve a defence. We have not been able to take full instructions from him to be able to do that, having only seen him on Friday."
The Deputy District Judge gave a short judgment in which he refused the adjournment and made an order for possession. In essence his reasoning was that on what he had heard there was no more than a tenuous possibility of a defence but nothing concrete and there is plenty from the council about the difficulties that they had had with this tenant. He took the view that Mr Stephenson had had ample time to seek advice from solicitors and put in some form of defence but he thought Mr Gilmore had no real argument to advance.
Mr Stephenson appealed to the circuit judge, who dismissed the appeal on the ground that the decision to refuse an adjournment was within the area of discretion available to the Deputy District Judge.
With the permission of Burnett LJ Mr Stephenson appeals again. Since this is a second appeal and the intermediate appeal was dismissed, the focus must be and has been on whether the first instance decision was wrong.
Procedure in possession claims is governed by CPR Part 55. For present purposes the important rules are CPR 55.7 and CPR 55.8. CPR 55.7 says that an acknowledgement of service is not required and by sub-rule (3) that where the defendant does not file a defence within the time specified in rule 15(4) he may take part in any hearing. The court may take his failure to do so into account when deciding what order to make about costs. That rule also provides that no default judgment can be obtained in a possession case. CPR 55.8 reads, so far as material, as follows:
i. "(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may –
(b) decide the claim; or
(c) give case management directions
i. (2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated."
The rules thus envisage that at the time of the first hearing, or indeed at a subsequent hearing, the tenant may well not have served the defence and that judgment should not be entered in default of defence. Rule 55.8 also envisages that the court may decide the claim without a full trial but it is also right to say that the...
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...and how to apply the proportionality test in Section 15(1) (b). 59 The first of these cases was Birmingham City Council v Stephenson [2016] EWCA Civ 1029 [2016] HLR 44. The case involved a possession claim by the relevant local authority against an introductory tenant of a flat. The tenant......
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