Eastlands Homes Partnership Ltd v Whyte
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Holman |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2010] EWHC 695 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 9MA09322 |
| Date | 31 March 2010 |
[2010] EWHC 695 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Before: His Honour Judge Holman
Sitting as a Judge of The High Court
Case No: 9MA09322
Paul Whatley (instructed by Howarth Goodman) for the Claimant
Ben McCormack (instructed by North Manchester Law Centre) for the Defendant
Hearing dates: 22 and 23 February 2010
His Honour Judge Holman:
This case represents another chapter in the continuing debate about the scope of public law defences in possession proceedings. It is also concerned with the status of Registered Social Landlords (RSL) and, for good measure, raises for consideration, in addition, a concept which, so far as I am aware, has not received the attention of the higher courts (and, indeed, little scrutiny by the lower courts).
The claim began in the County Court, but as part of the housekeeping at the start of the trial I transferred it up to the High Court, because the second of the criteria in paragraph 1.3 of Practice Direction 55 is satisfied. In addition it was conceivable that I might be asked to issue a certificate under section 12 Administration of Justice Act 1969. Counsel agreed that the transfer up did not create any jurisdictional differences, and that the case fell to be considered in the same manner as if it had remained in the County Court.
There are witness statements from Scott Sadler, a nuisance response officer 1, John Critchley, a neighbourhood management team leader, who made three statements and the Defendant, who made two. None of the witnesses were called, as neither counsel wished to cross-examine. Mr McCormack did, however, seek permission to call the Defendant to ask further questions in chief. I refused this application on the basis that it was too late and not in the interests of justice. I will mention the particular areas when I deal with the chronology. The last witness statement from Mr Critchley appeared on the second day of the trial in specific response to my request for evidence as to an alleged agreement made in November 2009, as to the present state of the rent account and as to certain policy documentation. This in turn generated the second witness statement from the Defendant.
During the first day Mr McCormack sought permission to re-amend his defence to re-introduce Article 6 of the European Convention on Human Rights. This was relied upon in the original defence, but expressly abandoned in the amended Defence, permission for which I had given in January 2010. As I recall, Mr McCormack also stated in court that day that Article 6 was no longer being pursued. He wished to go back to his original position on the basis that there was a dispute of fact revealed in an appeal panel's findings as to the efforts the Defendant had made to deal with rent arrears. Mr Whatley would have had to consider the position overnight, and I concluded that it was contrary to the overriding objective to allow the Defendant to change position again so late in the day.
The general defence raised is that the decision to seek possession was unlawful, procedurally unfair, unreasonable and disproportionate. This is predicated on the basis that the Claimant was a public body for the purposes of judicial review and a public authority for the purposes of the Human Rights Act. There is a witness statement from Mr Critchley, which deals with the status and functioning of the Claimant. I do not need to consider it, because
Mr Whatley, whilst reserving his position for higher courts, conceded that I am bound by the decision of the Court of Appeal in ( The Queen (on the application of Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363). The Claimant is in no better position than London and Quadrant, and accordingly is to be regarded as a public authority and a public body.In 2005 the Claimant granted a tenancy of 24 Tartan Street, Clayton, Manchester to the Defendant (The First Tenancy). The tenancy began on 22 August 2005 and is stated to be an assured shorthold weekly tenancy within the meaning of Section 19A Housing Act 1988, as amended. At the head of the first page of the agreement the following description appears: “Assured shorthold (Starter) tenancy”.
The agreement provides that as from 20 August 2006 the assured shorthold tenancy becomes an assured non-shorthold tenancy, unless one of the following situations applies before that date:
i) The landlord has started proceedings for possession against the tenant; or
ii) The landlord has served a notice under Section 21 Housing Act 1988 that the landlord requires possession and the landlord issues proceedings for possession within two months of the expiry of this notice; or
iii) The landlord has served a notice of an extension of no more than six months of the period of the assured shorthold tenancy agreement.
The agreement then provides that in any of the circumstances set out at (i) to (iii) above the tenancy continues to be an assured shorthold tenancy until:
i) Two months from the expiry of the notice (if no proceedings are issued within that time); or
ii) The day after any proceedings are determined (if no possession order is made); or
iii) The tenancy is ended by a court order for possession; or
iv) A notice is served confirming the tenancy has been converted to an assured non-shorthold tenancy.
The Defendant fell into arrears with her rent and the Claimant issued possession proceedings relying on Section 8 Housing Act 1988. On 24 May 2006 a possession order was granted at the Manchester County Court. It appears to have been intended as a postponed possession order, although a date for giving possession was fixed. Nothing turns on this. At the time the arrears were £803.42 and the Defendant was also ordered to pay costs of £150.00. During the hearing some disagreement emerged between counsel as to whether this order is still enforceable. However they clearly regarded this as a diversion from the issues in the claim and I heard no detailed submissions on the point. I therefore disregard it.
By letter dated 30 May 2006 the Claimant extended the shorthold period of the First Tenancy to 20 February 2007.
The Defendant did not comply with the order, but the Claimant did not take steps to enforce it. Instead it served a notice under Section 21 Housing Act 1988 dated 21 December 2006 giving notice that after 25 February 2007 the Claimant required possession of the property. The Defendant appealed the service of the notice, but this internal appeal was rejected, and proceedings were issued in the Manchester County Court using the accelerated procedure. An order for possession was made on 11 April 2007. It would appear that the order was not drawn promptly, and when it was ultimately issued it provided for possession to be given on 25 August 2007.
The Claimant issued a warrant for possession, but did not proceed with it because the Defendant cleared the arrears in full on 1 October 2007.
The Claimant then entered into a further starter tenancy agreement, which began on 8 October 2007 (The Second Tenancy). The trigger date for conversion to an assured non-shorthold tenancy was 6 October 2008. The Defendant signed an undertaking to accept special conditions in relation to this tenancy. These included a promise to pay the rent weekly as and when due, to engage with the rents team if there was a problem with the rent account to resolve the issue and to accept welfare and debt advice. She also acknowledged that the Claimant could use the accelerated possession procedure if she fell into arrears and that, if the Claimant took possession through rent arrears or any other breach of the tenancy, it would not consider rehousing her and she might be added to the rehousing review list.
On 4 September 2008 Trish Bryant, a Housing Officer, wrote to the Defendant. She stated that the conduct of the Second Tenancy had been reviewed on 2 September 2008, and that it had been decided to extend it as a starter tenancy for a further six months. The reason for the decision was stated to be rent arrears and broken agreements. The “broken agreements” are not particularised. The letter stated that Trish Bryant felt that extending the starter tenancy a further six months would allow the Defendant to address these issues. It also advised her that there would be a further review on 3 November 2008 “where a decision will be made to either convert or terminate the tenancy.” There is no evidence that a review took place in November, and it appears to be the case that this date was included mistakenly, it being intended that the review would take place shortly before the expiry of the extension.
At the date of the extension the arrears of rent were £214.27. Thereafter in the period to mid-February the arrears fluctuated between £84.62 and £550.62. This fluctuation is explained in part by the fact that the rent falls due on a monthly basis in advance whereas Housing Benefit is paid every four weeks in arrear. 2
On 23 February 2009 a number of significant events occurred. The Defendant's daughter Keeley entered into an Acceptable Behaviour Agreement 3 with Manchester City Council, the East Manchester Youth Intervention Officer, the East Manchester Nuisance and Anti Social Behaviour Team and Greater Manchester Police. These agreements are in common use and are designed to avoid applications for an Anti Social Behaviour Order (ASBO). The contract was expressed to run from 18 February and was to be reviewed on 18 August 2009. Secondly, the Claimant gave the Defendant a further notice under Section 21 Housing Act 1988 requiring possession after 26 April 2009. At the time of giving this notice the...
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‘Yeah but, no but’ – Pinnock and Powell in the Supreme Court
...respectively.76 R(Weaver) vLondon & Quadrant HT [2009] HLR 40; applied to considerable effect in EastlandsHomes Partnership Ltd vWhyte [2010] EWHC 695 (QB) and R(McIntyre) vGentoo Group Ltd [2010]EWHC 5 (Admin).77 App No 2408/06, 25 March 2010.78 http://nearlylegal.co.uk/blog/2010/11/brave-......