Possession in proportion: Article 8 saves tenant’s home

A tenant facing possession proceedings has jumped over the Human Rights Act Article 8 hurdle both at first instance and on appeal.

A tenant with no defence to an otherwise mandatory possession claim will often seek to rely upon their Article 8 right to respect for private and family life as providing a means of defending proceedings brought by a Registered Provider.

In Manchester CC v Pinnock, it was determined that whilst the “Article 8” defence was available, it should only succeed in exceptional circumstances. However, in a recent case, the Court of Appeal approved the use of an Article 8 defence to defeat the Council’s claim for possession.

What happened in the case?

In Southend-On-Sea Borough Council v Armour, Southend on Sea granted an introductory tenancy to Mr Armour commencing on 31 January 2011.

Mr Armour immediately began causing problems with his neighbours; swearing and threatening them and causing one neighbour to complain. On 4 February 2011, (only five days into his tenancy) the Council wrote to Mr Armour, advising him that anti-social behaviour was taken very seriously and that should any further complaints be received, these would be fully investigated.

Two further incidents took place within the next two months. As such, the Council served Notice Seeking Possession on Mr Armour on the ground that he had caused nuisance and annoyance to his neighbours.

Mr Armour requested a review of the Council’s decision to seek possession and after consideration by a panel, the decision to seek possession was upheld.

The Notice Seeking Possession expired on 2 May 2011 and the Council brought proceedings on 7 June 2011. The Council had followed the correct procedure and Mr Armour had no procedural or other legal defence to the claim. As such, he sought to rely upon his Article 8 right to respect for private and family life as providing a defence to the claim – the remedy was not proportionate to the wrong.

Unfortunately for the Council, a series of procedural delays (seemingly caused by Mr Armour’s solicitors) meant that the hearing did not take place until 2 March 2012. By this time, there had been no further complaints about Mr Armour.

What happened in court?

The County Court considered Mr Armour’s human rights argument and accepted that Article 8 could be invoked here. The Court held that, while the Council’s decision to seek possession of Mr Armour’s property was proportionate at the time the notice was served, it was no longer proportionate for an order for possession to be made, given that almost a year had passed with no further complaints. It was relevant to the Court’s decision that Mr Armour suffered from Asperger’s syndrome as well as depression and that his behaviour had markedly changed since the date of the last incident.

The Council appealed this decision but the High Court dismissed this appeal. The Council further appealed to the Court of Appeal who again dismissed the appeal, holding that it was disproportionate for the Council to continue to seek possession in the circumstances.

What does this mean for me?

This case is a useful illustration of when a tenant might be able to meet the high threshold previously imposed and successfully rely on their Article 8 right. The case will inevitably be relied upon by tenants as a Court of Appeal authority to review behaviour following an improvement in the situation, and will incentivise tenants to delay proceedings.

It is useful to note that the Court of Appeal said in this case that it is reluctant to go against the decision of an earlier Court as to when Article 8 may or may not apply.

Mr Armour’s behaviour improved; he retained his home; in many ways a suitable outcome.

How can I find out more about this?

To find out more or to ask any questions arising from this recent decision, please do not hesitate to contact us.