Mr Brian Holmes v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady,THE HONOURABLE MR JUSTICE EADY |
| Judgment Date | 03 November 2011 |
| Neutral Citation | [2011] EWHC 2857 (QB) |
| Date | 03 November 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2010/0774 |
[2011] EWHC 2857 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: QB/2010/0774
Jon Holbrook (instructed by Devonshires) for the Respondent
Hearing date: 21 October 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 21 October 2011, I heard an appeal against an order made on 18 November 2010 in the Central London County Court by Mr Recorder Widdup, who struck out the defence of Mr Brian Holmes to a claim for possession of his flat at No 128 Bravington Road, London W9. He granted possession on the same occasion. The claim was brought by Westminster City Council, which had granted him a non-secure tenancy in March 2005 pursuant to its acknowledged duty under s.193 of the Housing Act 1996. In the first instance, permission was refused by Griffith Williams J in writing but, following an oral hearing, Lindblom J granted permission on 27 June of this year.
Mr Holmes is in his early fifties and has a history of mental health problems. He has from time to time been diagnosed with severe anxiety, obsessional behaviour, depression, paranoid personality disorder, seasonal affective disorder, alcohol dependent syndrome and possibly also post traumatic stress disorder.
It was against this background that Mr Holmes had applied to the Council in 2004 for assistance as a homeless person in accordance with the provisions of Part VII of the 1996 Act.
The Council notified Mr Holmes in June 2009 that it had ceased to be subject to the statutory duty under s.193 following what is known as a "discharge decision". This had been based on his failure to attend two appointments he had been offered for the inspection of his accommodation. The Council was asked to review that decision. Eventually, on 28 January 2010, the discharge decision was withdrawn following the review. Meanwhile, however, Mr Holmes had been served with notice to quit following the discharge decision and, in August 2009, these proceedings were brought by the Council with a view to obtaining possession, but they were adjourned to await the outcome of the review.
In the light of the withdrawal of the discharge decision, Mr Holmes' solicitors wrote on 8 February 2010 and invited the Council also to withdraw the claim for possession. Unfortunately, two days later, there was an incident at the premises when two housing officers visited Mr Holmes and, on their account, were assaulted by him. In the light of this development, the Council's solicitors informed those acting for Mr Holmes on 24 February 2010 that the decision had been taken to resume these proceedings for possession.
A defence was filed on Mr Holmes' behalf in July 2010, whereupon the Council applied in the following September for possession on a summary basis, alternatively for some or all of the defence to be struck out. In due course, on 18 November of that year, Mr Recorder Widdup made a possession order on a summary basis, as the Council had requested, and he struck out Mr Holmes' defence.
It is necessary to have in mind the important distinction, which is inherent in the statutory framework, between the safeguards available to secure tenants and those relevant in the case of non-secure tenancies, such as that of Mr Holmes. Parliament made provision for secure tenancies in Part IV of the Housing Act 1985 and an order for possession of premises let under such a tenancy may only be made if the relevant landlord has established at least one of the grounds for possession identified in Sch 2 of that Act.
In accordance with Sch 1 para 4 of the 1985 Act, a tenancy is not a secure tenancy if granted in pursuance of any function under Part VII of the Housing Act 1996 (unless the relevant authority has notified the tenant that it is to be regarded as a secure tenancy). A non-secure tenancy may be determined on notice to quit being given by either party thereto. Provision was made in the Protection from Eviction Act 1977 for the prohibition of eviction from residential property without due process of law. So far as a non-secure tenancy is concerned, it is not lawful for the owner to enforce possession otherwise than by proceedings in court: see s.3(1) and s.It was pointed out in the Court of Appeal in Mullen v Salford City Council [2010] HLR 35 at [18]:
"Subject to the right to a review in circumstances where the local authority decides that its homelessness duty has ceased (see s.202 of the 1996 Act), the local authority is not required by the legislation to make out the grounds required for the termination of a non-secure tenancy when seeking possession from an occupant whom it has housed pursuant to its homelessness duties. The only procedural protections provided by statute are those contained in the Protection from Eviction Act 1977 (the 1977 Act), and in particular the requirement to obtain an order of the court in order to obtain possession: see s.3(1) of the 1977 Act. Some debate took place before us as to whether a local authority was bound to give reasons when serving a notice to quit and we were referred to the Notices to Quit etc (Prescribed Information) Regulations 1988, setting out what needs to be contained in a notice to quit and there is no reference to giving reasons."
I should also bear in mind the specific procedure laid down in CPR 55 which governs possession claims in general. The intention is that such claims will normally be determined without the need for a trial; that is to say, on a summary basis, where the judge is only expected to read the written evidence submitted: see CPR 55.8. Consequently, it is not contemplated that the ordinary procedure for obtaining summary judgment should apply in such cases: see CPR 24.3(2).
After the CPR came into effect in April 1999, and also after the relevant statutory provisions identified above were enacted, the Human Rights Act 1998 was implemented in October 2000. It then became necessary, so far as possible, for all legislation to be read and given effect in a way that is compatible with Convention rights. Furthermore, it is unlawful for a public authority, including a court of law, to act in a way that is incompatible with such a right: see s.6 of the 1998 Act. It is clear that this has had a considerable impact in the context of claims for possession and, particularly, by reference to the rights protected under Article 8 of the Convention:
i) Everyone has the right to respect for his private and family life, his home and his correspondence.
ii) 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.
It was recognised by Lord Bingham in Kay v Lambeth London Borough Council [2006] 2 AC 465 at [35] that:
"Where a statutory scheme covers the case of an occupier, and conditions are prescribed for obtaining possession, and those conditions are met, it will only be in highly exceptional circumstances that the occupier will gain additional protection from article 8."
Lord Bingham did not think it appropriate to attempt to define what might be considered as "highly exceptional" circumstances and observed that the practical experience of county court judges was likely to prove the surest guide. It was necessary, however, always to have in mind the stringency of the test. He went on to summarise the practical position so far as possession proceedings were concerned in the future, at [39]:
..."(1) It is not necessary for a local authority to plead or prove in every case that domestic law complies with article 8. Courts should proceed on the assumption that domestic law strikes a fair balance and is compatible with article 8.
(2) If the court, following its usual procedures, is satisfied that the domestic law requirements for making a possession order have been met the court should make a possession order unless the occupier shows that, highly exceptionally, he has a seriously arguable case on one of two grounds.
(3) The two grounds are: (a) that the law which requires the court to make a possession order despite the occupier's personal circumstances is Convention-incompatible; and (b) that, having regard to the occupier's personal circumstances, the local authority's exercise of its power to seek a possession order is an unlawful act within the meaning of section 6.
(4) Deciding whether the defendant has a seriously arguable case on one or both of these grounds will not call for a full-blown trial. This question should be decided summarily, on the basis of an affidavit or of the defendant's defence, suitably particularised, or in whatever other summary way the court considers appropriate. The procedural aim of the court must be to decide this question as expeditiously as is consistent with the defendant having a fair opportunity to present his case on this question.
(5) If the court considers the defence sought to be raised on one or both of these grounds is not seriously arguable the court should proceed to make a possession order.
(6) Where a seriously arguable issue on one of these grounds is raised, the court should itself decide this issue, subject to this: where an issue arises on the application of section 3 the judge should consider whether it may be appropriate to refer the proceedings to the High Court."
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