Southend-on-Sea Borough Council (Claimant/Appellant) v Armour
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 18 October 2012 |
| Neutral Citation | [2012] EWHC 3361 (QB) |
| Date | 18 October 2012 |
| Docket Number | Claim No: QB/2012/0183 |
| Court | Queen's Bench Division |
[2012] EWHC 3361 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London WC2A 2LL
Mr Justice Cranston His Honour Judge Hull
Claim No: QB/2012/0183
MR N GRUNDY (instructed by Clarke Willmott) appeared on behalf of the Claimant/Appellant.
MR J LUBA QC (instructed by Law Hurst Taylor) appeared on behalf of the Defendant/Respondent.
Approved Judgment
Thursday, 18 October 2012
Introduction
This is an appeal by Southend-on-Sea Borough Council ("the Council") against the dismissal of the claim it brought as landlord for the possession of residential premises, in fact social housing, occupied by Mr Robert Armour, its tenant. The appeal is concerned with whether the court considering the matter applied correctly the growing body of jurisprudence concerning the purchase which Article 8 of the European Convention on Human Rights has in possession proceedings.
Background.
The property in question is a 2-bedroom council flat in Southend-on-Sea managed by an agent, South Essex Homes Limited. Mr Armour signed the tenancy agreement on 31 January 2011, although he moved into the flat shortly before that. He was accompanied by his daughter, then aged 14. Almost immediately, the agent received a complaint from another resident that Mr Armour had verbally abused and threatened her. The agent spoke to Mr Armour about her complaint. In early March Mr Armour spoke aggressively to a member of the agent's staff, Miss Saatchi. The agent wrote to Mr Armour about that incident. There was a third complaint later that month. Electrical contractors had been working at the property and said that Mr Armour had been abusive and bullying. Moreover, they alleged that he had switched the electric supply back on while they were still working, causing one of them to receive a shock. Again the agent wrote to Mr Armour. This time the letter enclosed a statutory notice of possession proceedings.
Mr Armour's sister telephoned the agent the same day the statutory notice was issued. She explained that the contractors had themselves turned the power back on and that, on speaking to them, they had denied that anyone had received an electric shock. Five days later Mr Armour completed a review request form in which he denied switching on the power, asserted that no one had suffered an electric shock, and sought a chance to explain the other incidents. The agent made arrangements to convene a panel to undertake the review. It obtained witness statements from the electrical contractors and from Miss Saatchi. It prepared a schedule of contact between itself and Mr Armour and presented a report to the review panel. It recommended that the review panel uphold the decision to seek possession, because of the seriousness of the incident involving the contractors and the danger that Mr Armour posed to contractors through his actions.
There was a review panel hearing on 21 April. Mr Armour attended and was represented by the chairwoman of the local resident's association. She produced two supporting letters written by his immediate neighbours. She accepted on his behalf that he had anger management issues, but submitted that the aggression towards Miss Saatchi had stemmed from frustration about a boiler repair. In its decision, the review panel recorded that it was unclear how the electricity to the socket had become live, but it was clear that the contractors had been abused:
"Bearing in mind the tenant had been warned only 3 weeks before the Panel found this abuse to be proven and therefore decided on option 2 – dismiss the appeal."
The Council decided to proceed with the possession claim, which it issued on 9 June. The matter should have been resolved in July or August, but there were four interlocutory hearings and the case was not listed for 9 months. The explanation is that, firstly, the proceedings were adjourned so that Mr Armour could obtain legal representation. Subsequently the case was adjourned so that his legal representative could obtain further advice in the light of the decision in Manchester City Council v Pinnock [2011] UKSC 6, [2011] 2 AC 104. Eventually the matter was heard by Mrs Recorder Davis on 2 March. She heard evidence from the Council's tenancy services officer and from Mr Armour's previous partner, a Miss Ward. Both sides were represented.
The Recorder's judgment.
In her judgment the Recorder began by noting that the property was let as an introductory tenancy, governed by sections 124–129 of the Housing Act 1996. She referred to the review procedure applying where a landlord of an introductory tenancy serves a notice of possession. She quoted Circular 2/97, that introductory tenancies are designed to help in the fight against anti-social behaviour by making it easier for landlords to evict tenants who persistently engage in anti-social behaviour before they achieve security of tenure.
The Recorder then turned to the Supreme Court jurisprudence, which confirmed, she said, that Article 8 ECHR applies to proceedings for possession of an introductory tenancy so that consequent interference with private and family life has to be necessary and proportionate. In particular, she referred to Manchester City Council v Pinnock [2011] UKSC 6, [2011] 2 AC 104, which involved a demoted tenancy. On the authority of that case she noted that both the tenant and landlord could rely on events which occurred after the possession notice had been served. The Recorder also took into account Hounslow London Borough Council v Powell [2011] UKSC 8, [2011] 2 AC 186, a case involving at least one introductory tenancy. In particular, she referred to a passage in the judgment that the proportionality issue had to be raised by the tenant and had to cross the high threshold of being seriously arguable. She also noted the passage in the judgment that the court needed to address the circumstances and any factual objections raised, and whether making the order for possession would be lawful and proportionate in the circumstances. The court's power of review, she added, could in appropriate cases extend to reconsidering the facts found by the landlord, or could involve a consideration of facts "which had arisen since the issue of proceedings by hearing evidence and forming its own view".
The Recorder then set out the facts. She outlined Mr Armour's appalling criminal record and domestic violence, but also that the Probation Service and Connexions had written supportively in July 2011. I interpolate to note that in his letter the Connexions youth worker, after recording that he had known Mr Armour for nearly 20 years, opined that he now had become aware of how much his daughter valued living with him and that at this stage in her life that relationship was important. Mr Armour was concerned with the prospect of losing his home and the adverse effect it would have on himself and his daughter. The probation officer's letter similarly recorded that the writer had had a long association with Mr Armour and that he was extremely concerned for Mr Armour's wellbeing if he received an eviction order, since this was the first time in 17 years that he had been able to secure permanent accommodation. The writer said that there was a risk of serious harm to the general public if Mr Armour lost his home, and he had made excellent progress.
To return to the Recorder's judgment, she then referred to the daughter, who at that point was studying for her GCSEs, to Mr Armour's ex-partner, and to his sister. She also considered the medical evidence which had become available in early December 2011. (Again I interpolate to note that in the covering letter before the judge the doctor had expressed the view that eviction would be extremely detrimental to Mr Armour's mental and physical state.) The Recorder summarised the effect of the certificate issued by the doctor, that, because of his lifelong Asperger syndrome and because of his history of severe depression, he lacked capacity to conduct proceedings within the meaning of the Mental Capacity Act 2005.
The Recorder then recounted the facts summarised earlier in his judgment. In the course of doing that, she concluded that at the hearing his ex-partner, Miss Ward, had exaggerated Mr Armour's inability to read and write, and that he was able to send text messages. Whatever Mr Armour's condition at the time the GP saw him and issued the certificate, he had been capable in the earlier part of 2011 of taking a full part in the review proceedings and had a full understanding of what was at issue. Albeit that he denied it, he knew that complaints had been made against him on the first and second occasions.
The Recorder then said that, at the time the claim for possession was filed, there was, in reality, no defence to the claim, so that the only live question was whether there were any personal circumstances that meant the decision that she had to make was disproportionate or unnecessary. She noted that Mr Armour's capacity to conduct litigation had come to light since the review panel decision. She recalled the favourable letters from the Connexions youth worker and the probation officer, which had been written in July 2011 and which noted that Mr Armour's behaviour had changed significantly for the better in recent times. She was satisfied that those letters were as helpful as the analysis from the doctor. The doctor's diagnosis did not assist in explaining Mr Armour's conduct. As for...
To continue reading
Request your trial
-
Human Rights & Possession
...landmark decision has been reached in the case of Southend-on-Sea Borough Council v Armour [2012] EWHC 3361 (QB) on the impact of a tenant's human rights on a possession claim for a property subject to an introductory Under Section 125 Housing Act 1996, an introductory tenancy is one which ......
-
Human Rights and the Law of Leases
...defences have been thin on the ground so far. In one reported appeal decision,104104Southend-on-sea Borough Council v Armour [2012] EWHC 3361 (QB). the defendant had an “appalling criminal record“ and a history of domestic violence, but evidence from his probation officer suggested he had m......
-
Article 8 in Housing Law: No Home for Human Rights Values
...98Chapman v UK (2001) 33 EHRR 399, at para. 99 99Kay (n 8), at para. 192 100Southend-on-Sea BC v Armour [2012] EWHC 3361 (QB), at para. 15 101Kay (n 8), at para. 33 102Ibid., at para. 31 103Ibid., at para. 42 104Walsh (n 71), at p. 608 105Latham (n 17), at p. 733 106Ibid., at p. 740 107Pinn......