Southend-on-Sea Borough Council v Armour
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice McFarlane,Lord Justice Sullivan |
| Judgment Date | 12 March 2014 |
| Neutral Citation | [2014] EWCA Civ 231 |
| Docket Number | Case No: B5/2012/2849 |
| Date | 12 March 2014 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 231
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE CRANSTON
QB20120183
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice McFarlane
and
Lord Justice Lewison
Case No: B5/2012/2849
Mr Nicholas Grundy (instructed by Clarke Willmott, London) for the Appellant
Mr Jan Luba QC (instructed by Law, Hurst & Taylor, Westcliff-on-Sea) for the Respondent
Hearing date: 4 March 2014
The issue
The main issue raised by this appeal is whether the trial judge applied an insufficiently rigorous test in deciding that the making of a possession order against a tenant under an introductory tenancy was not proportionate.
The facts
Mr Armour became the weekly tenant of 35 Bewley Court, Whittingham Avenue in Southend-on-Sea with effect from 31 January 2011, although the tenancy agreement was signed on 25 January and he moved in on that day. The tenancy agreement informed him that:
"Your tenancy will begin as an introductory tenancy. It will become a secure tenancy after one year; unless you have broken the conditions of your introductory tenancy."
Almost immediately a neighbour complained about having been sworn at and threatened, in consequence the housing managers wrote to him on 4 February 2011. The letter said that it would be treated as a one off incident, but emphasised that antisocial behaviour was taken very seriously; and that any further complaint would be investigated very fully. A month later on 3 March 2011 Mr Armour had a telephone conversation with a member of the contact team, the ostensible purpose of which was to rearrange an appointment to deal with a defective boiler. He was rude and aggressive on the phone, and alleged that the boiler was illegal. The team member was left feeling upset and personally responsible. On that same day Mr Armour was sent another letter saying that his abusive behaviour towards a member of staff was "totally unacceptable". The third incident took place a few weeks later on 31 March 2011. Electricians had arrived at Mr Armour's flat following the stripping out of the kitchen ready for electrical works to take place. They said that Mr Armour had been abusive to them. They also alleged that Mr Armour had turned on the electricity after they had turned it off in order to carry out the works, in consequence of which one of the workmen received an electric shock. The electricians also alleged that Mr Armour had sworn at them and been abusive.
The immediate consequence of these three incidents was that Southend-on-Sea BC as landlord served Mr Armour notice of possession proceedings alleging, by reference to these three incidents, that Mr Armour had been guilty of conduct causing or likely to cause nuisance or annoyance. The notice said that court proceedings would not be begun until after 2 May 2011; and in the meantime advised Mr Armour of his right to request a review of the decision. Mr Armour requested a review. He said that he had not turned on the electricity and that no one had received a shock. He also asked for a chance to explain the other alleged incidents.
The review took place on 21 April 2011. The review panel considered the evidence and material and concluded:
"The panel found that while there may have been an element of doubt as to how the circuit the electricians were working on became live it was clear that the [tenant] abused the contractors sent to carry out works to the property.
Bearing in mind that [the tenant] had been warned only 3 [weeks] before the Panel found the abuse to be proven and therefore decided on Option 2: DISMISS the appeal."
The council began proceedings for possession on 7 June 2011. After various procedural delays the case came to trial before Ms Recorder Davies on 2 March 2012. That was nearly a year after the last of the three incidents, during which time there had been no further problem arising out of Mr Armour's behaviour. By an amendment to the pleadings, which the Recorder allowed at the beginning of the trial, Mr Armour raised a defence under article 8 of the European Convention on Human Rights and Fundamental Freedoms.
The Recorder's judgment
The Recorder held that the council's decision to initiate proceedings for possession was a reasonable decision and that at the date when the proceedings were issued Mr Armour would have had no defence. She also held that but for the interlocutory delays the case should have been heard in July or August 2011.
However, she held that the question of the proportionality of making a possession order fell to be decided as at the date of trial. In reaching her decision on that issue she said that she had to balance the duty and obligations of the council towards its tenants, prospective tenants and the community it served against Mr Armour's personal circumstances.
Having carried out that exercise she decided that in the circumstances pertaining at trial a possession order was no longer proportionate. She took into account the following personal circumstances:
i) Since the council's initial decision it had come to light that Mr Armour lacked capacity to conduct litigation. He had been diagnosed with depression and Asperger's syndrome, although his conduct could not be attributed to that.
ii) Although Ms Ward (who was Mr Armour's ex-partner) said that Mr Armour could not read or write, that was exaggerated, because he was able to send text messages, and responded very rapidly to the notice seeking possession.
iii) Mr Armour's daughter Elise was living with him. Although she might find difficulty in sharing a bedroom if she were to move back to her mother's home, that was not so important as to make the possession order disproportionate.
iv) What tipped the balance was that despite his mental health problems Mr Armour had kept to the terms of his tenancy for nearly a year. If a possession order were refused, his tenancy would become a secure tenancy. He would be at risk under that tenancy if there was any repetition of anti-social behaviour. His desire to keep his tenancy was supported by his probation officer, his community worker and members of his family. The anti-social behaviour had stopped as soon as Mr Armour had been served with the notice seeking possession.
The council appealed against that decision, but Cranston J dismissed their appeal. With the permission of Arden LJ they appeal for a second time. The principal ground of appeal is that the Recorder applied too generous a test to Mr Armour. There are additional grounds of appeal which raise new points that were not before the Recorder or the judge; and I will deal with those in due course.
Mr Nicholas Grundy appeared for the council; and Mr Jan Luba QC appeared for Mr Armour. At the conclusion of the hearing we announced our decision to dismiss the appeal, and said that we would put our reasons in writing. These are my reasons for joining in that decision.
Introductory tenancies
Introductory tenancies were created by the Housing Act 1996. Their purpose was to allow social landlords to grant tenancies under which the tenant would not have security of tenure until the expiry of a probationary period, usually one year. The purpose of the probationary period was to allow the tenant to demonstrate that he was a responsible tenant during that period. If he did that, then at the end of the probationary period the tenancy would be converted into a secure tenancy, under which the tenant had security of tenure. This policy is explained in Circular 2/97, paragraph 4 of which reads:
"Introductory tenancies are designed to help in the fight against antisocial behaviour by making it easier for landlords to evict those tenants who persistently engage in neighbour nuisance before they achieve security of tenure."
Where a landlord has granted an introductory tenancy he may only bring it to an end by a court order for possession and the execution of that order: Housing Act 1996 s. 127 (1). The court must make a possession order unless section 128 applies: s. 127 (2). Section 128 (1) provides that the court must not entertain proceedings for possession unless the landlord has served a notice of proceedings complying with that section. Section 128 (3) requires the landlord to set out the reasons for seeking possession and section 128 (6) requires the notice to inform the tenant of his right to seek a review of the decision. If the tenant requires a review, then the landlord must review its decision: s. 129 (2). If the result of the review is to confirm the original decision, the tenant must be informed and given the reasons for the decision: s. 129 (5).
Proportionality
These provisions do not exclude the ability of the court to undertake a review of the landlord's decision in order to satisfy itself that the making of a possession order is not incompatible with the tenant's rights under article 8: London Borough of Hounslow v Powell [2011] UKSC 8; [2011] 2 AC 186. A number of cases in this court and in the House of Lords and Supreme Court have laid down the principles that must be applied. A useful starting point is the judgment of Etherton LJ, reviewing much of the previous case-law, in Thurrock Borough Council v West [2012] EWCA HLR 5 Civ 1435. He formulated the following principles:
i) It is a defence to a claim by a local authority for possession of a defendant's home that the recovery of possession is not necessary in a democratic society within article 8(2), that is to say...
To continue reading
Request your trial
-
North Lanarkshire Council Against Lynsey Kelly
...of 18 September 2012); Mayor and Burgessess of the London Borough of Hounslow v Powell [2011] UKSC 8; and South End on Sea v Armour [2014] EWCA Civ 231(at 30). Separately, the proposed justification for the interference is the prevention of disorder and crime. The defender did not commit an......
-
The Mayor and Burgesses of the London Borough of Haringey v Ms Hasna Khatun Ahmed and Another
...question is whether the judge has reached a decision which was open to him. As stated by Lewison LJ in Southend-on-Sea BC v Armour [2014] EWCA Civ 231, [2014] HLR 23 at [17]–[20]: "17. …. the test which the courts must apply, whether described as proportionality or as deciding whether evic......
-
Timothy William Dutton & 3 Others v Persons Unknown & Others
...to recover possession of land. She submitted that it would be contrary to the decisions in McDonald v McDonald and in the case of Southend-on-Sea BC v Armour [2014] EWCA Civ 231, [2014] HLR 362 to allow the prospective effect of an order on a child to trump a private landowner's rights unde......
-
Metropolitan Housing Trust Ltd v TM (A protected party, by his litigation friend DM)
...Finishing Works Ltd) v Taunton Deane Borough Council [2017] EWHC 1837 (Admin); [2018] PTSR 26Southend-on-Sea Borough Council v Armour [2014] EWCA Civ 231; [2014] HLR 23, CAYoung v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER 293, CAAPPEAL from Johnson JBy a claim form dated 12 Se......
-
The Housing and Planning Act 2016: Rewarding the Aspiration of Homeownership?
...encountered significant op-position in Parliament. While the government was forced to concede to the114 Southend-on-Sea BC vArmour [2014] EWCA Civ 231; [2014] HLR23. For an early success seeGhaidan vGodin-Mendoza [2004] UKHL 30; [2004] 2 AC 557.115 London Borough of Harrow vQazi n 106 above,......
-
Article 8 in Housing Law: No Home for Human Rights Values
...115Ibid., at para. 35 116Ibid. 117‘S’, ‘Nothing ever really changes, does it?’ (Nearly Legal, 20 March 2012) accessed 11 April 2015 118[2014] EWCA Civ 231 119Ibid., at para. 15 120Adam Ramshaw, ‘Southend-on-Sea v Armour: proportionality revisited’ (2014) JHL, 17(5), 98-102 121‘S’, ‘So Artic......