Second successors: unsuccessful Article 8 and public law defence to possession proceedings

Turner v Enfield London Borough Council [2018] EWHC 1431 (QB), 25 May 2018

The appellant, Mrs Turner, lived in a three-bedroom council home (the property) in Edmonton which had originally been let to her father in the 1960s. The landlord was the London Borough of Enfield. When Mrs Turner’s father died in 2005, his wife – Mrs Turner’s mother – succeeded to the tenancy. When she died in 2012, the tenancy ceased to be secure and, in 2013, Enfield terminated the subsisting contractual tenancy by serving a notice to quit and brought possession proceedings.

Mrs Turner, who had lived in the property from 1963-1971 and then again from 2007 (or thereabouts) to date, sought to defend the claim, relying on the Equality Act 2010, Art.8 ECHR and a number of public law challenges, arising from the way in which Enfield had dealt with her case.

Mrs Turner suffered from a number of physical impairments as well as physical and mental health problems. In particular, she was registered blind and had suffered from a number of strokes which had adversely affected her speech and necessitated the use of a pacemaker. She also suffered from depression (and consequential insomnia), osteoporosis, hypertension and hypercholestomia. It was these personal circumstances which underpinned her defence to the claim.

In March 2014, following the issuing of the possession claim, Mrs Turner and her son Jamie (who was living with her at the time) completed an online application for housing. In November 2014, an occupational therapist conducted an assessment and made a number of recommendations as to how Mrs Turner should be accommodated if she were to move out. Following this, in March 2015, the Exceptional Special Application Housing Panel (ESAHP) at Enfield considered her application and decided that she should be made one direct offer of alternative accommodation, consisting of a two-bedroom, ground-floor flat with level or one-step access.

ESAHP revisited the application in July 2015 and produced a second report concluding that Mrs Turner would not be granted a tenancy of the property, which (the report stated) could accommodate up to six persons, but that she would be made two direct offers of accommodation meeting the relevant requirements, which she would have the opportunity to view and then up to seven days to accept. It would be offered on a joint tenancy, would likely be a Council tenancy and would be within the borough. However, it would be unlikely to have a garden.

In September 2016, Mrs Turner underwent a second occupational therapy assessment which concluded that, if she were to move, she would need ground floor accommodation with one or two steps only, would require assistance with moving costs and would need to be referred to the Sensory Impairment Team for assessment, with a view to orientating her to the new environment.

The matter came before Recorder Genn for trial in November 2016. She dismissed Mrs Turner’s defence and made a possession order, subject to a number of recitals reflecting concessions made on the part of Enfield. Specifically, Enfield agreed:

• that they would not enforce the possession order unless and until Mrs Turner and Jamie had been made and had refused two offers of accommodation;
• that Mrs Turner and Jamie would not have to move into temporary accommodation under the Housing Act 1996 during the process;
• that a referral would be made to the Sensory Impairment Team and the Occupational Therapist  at, or before, the point any offer of accommodation was made;
• a referral would also be made to social services to assess Mrs Turner’s ‘changed need as a result of changed accommodation’;
• that any offer of accommodation would be consistent with the Occupational Therapists’ recommendations;
• that the offers would be of joint secure tenancies.

Mrs Turner appealed to the High Court. She sought to argue: (i) that the Recorder had been wrong to conclude that the possession order was proportionate for the purposes of Art.8 ECHR; and (ii) that Enfield’s decision making procedure had been defective in a number of ways and that the Recorder had been wrong to hold otherwise.

By the time of her appeal Mrs Turner had also been diagnosed with lung and bone cancer and had begun a course of chemotherapy. In view of this diagnosis, shortly before the hearing, Mrs Turner made an application to adjourn the appeal. Whipple J refused the application and dismissed the appeal.

In relation to ground 1, Art.8 proportionality, the Recorder had properly taken into account all of the medical evidence, which did not rule out a move to alternative accommodation. She had properly applied the principles set down in Thurrock Borough Council v West [2012] EWCA Civ 1435 and Holley v London Borough of Hillingdon [2016] EWCA Civ 1052, which were authority for the proposition that medical issues aggregated with long length of residence will generally provide an insufficient basis on which to defeat a local authority’s claim for possession in a ‘second succession case’. The principles in Thurrock and in Holley did not cease to be relevant simply because the Recorder had accepted that the Art.8 defence was seriously arguable, which had not been so in those cases. The fact that the benefit to Enfield in recovering the property was relatively modest, in that there would be a net gain of one additional bedroom by the time they had granted Mrs Turner a new tenancy, was irrelevant: it was for the local authority to decide how best to use and allocate its housing stock.

In relation to Mrs Turner’s recent cancer diagnosis the judge held this did not vitiate the Recorder’s decision on Art.8, in circumstances where she was to be re-housed on the terms set out in the recitals to the possession order. However, should her circumstances change ‘dramatically for the worse’ then ‘the door to the court would not be completely closed’ as Art.8 ECHR issues might notionally be raised at the enforcement stage in such exceptional circumstances. This would provide a ‘safeguard of last resort’.

As to procedural defects, any errors that may have affected the conclusion in the first ESAHP report (for example, the making of one offer and not two which ran contrary to Enfield’s policy) had been cured by the second report, and there had been no breach of the rules of natural justice in the manner in which the decision had been made.

The judgment (at the time of writing this note) is not yet available on BAILII but can be accessed on Westlaw etc (£): Turner v Enfield London Borough Council [2018] EWHC 1431 (QB).

Comment:

In discussions with other housing lawyers I sometimes sense a prevailing view that having reached the high water mark of Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104 and Hounslow BC v Powell [2011] UKSC 8, [2011] 2 AC 186 – which (notionally) allow an occupier to raise an Art.8 defence to possession proceedings – the tide has now gone out, to the extent that, in practical terms, it is a virtual impossibility to successfully rely on an Art.8 defence in possession proceedings. In fact (as far as I am aware)  Southend-on-Sea Borough Council v Armour [2014] EWCA Civ 231, [2014] HLR 23 is the only case where the Court of Appeal has been prepared to uphold an Art.8 defence. To those who subscribe to this school of thought, this case – which plainly involved a very vulnerable occupier – might be read as another nail in the coffin of the Art.8 defence.

I take a slightly different view which is that an Art.8 defence is only likely to succeed in certain quite specific circumstances and this case gives us a further steer as to what those circumstances might be.

By way of introduction, I think it’s worth bearing in mind some of the relevant principles that have been set down by the Appellate courts in a few of the key cases:

• Thurrock at [23]-[24]: although the legal test to be applied is proportionality (and not exceptionality) ‘the circumstances will have to be exceptional to substantiate an Article 8 defence’.
• Pinnock at [64]: ‘the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue "in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty", and that "the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases" seem to us well made.’
• West Kent Housing Association v Haycraft, Corby BC v Scott [2012] EWCA Civ 276 at [24]: medical evidence as to a person’s vulnerability is only likely to be relevant where it is directed to the harm which the occupier will suffer if evicted.
• Haycraft at [30]: Art.8 is ‘primarily concerned with respect for his particular home, as opposed to a general right to be provided with a home’. As such ‘the right to be re-housed appears to me to be a factor weighing against the Article 8 claim prevailing, rather than the absence of such a right being a factor in favour of such a claim prevailing’. See also Birmingham City Council v Lloyd [2012] EWCA Civ 969 at [20].
• Thurrock at [31]: ‘even where an Article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain… That might be the effect of a simple refusal of possession without any qualification… Otherwise, the effect of the Article 8 defence would be that the Court would have assumed the local authority's function of allocating its housing stock.’

Drawing these threads together, it seems to me that an Art.8 defence based on an occupier’s personal circumstances is most likely to be relevant in those cases where there is an exceptionally vulnerable tenant, who will suffer particular harm if he or she is deprived of his or her home. That is harm which is connected to the home itself – as might be suffered by a physically disabled person who loses a specially adapted property or by a person with a mental health condition which makes it particularly hard for them to adapt to change – as opposed to the generic harm suffered by any person who is left without accommodation. In those circumstances, it may be that eviction will not be proportionate unless and until provision is made (by some person, not necessarily the landlord) for suitable alternative accommodation. Putting it in simple terms, Art.8 is most likely to be relevant where the occupier is sufficiently vulnerable that he or she simply cannot move, without suffering significant hardship, until he or she has a suitable home to which he or she can safely be moved to.

That would seem to be to be consistent with the principles I’ve outlined above. And if this analysis is right – and these things are not only fact sensitive but are always open to differing interpretations – then Turner fits into this framework: possession was not disproportionate as the medical evidence did not rule out a move to alternative accommodation, and a clear plan was in place as to how that accommodation was to be provided. If the position changed then, building on the discussion that was started in JL v Secretary of State for Defence [2013] EWCA Civ 449 and continued in Lawal v Circle 33 [2014] EWCA Civ 1514, any further Art.8 issues could potentially be raised at the warrant stage.