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Current Issues in Possession Proceedings

Nik Nicol HLPA meeting 16th July 2008

1. Human Rights 2-4 2. Public Law Defences 5-7 3. Tolerated Trespassers 8-14 4. Disability Discrimination 15-16 Nik Nicol 2 1 Pump Court

Human Rights

McCann v UK 13th May 2008, ECtHR App. no. 19009/04; [2008] All ER (D) 146 (May)

M had a joint secure tenancy with his wife. The marriage broke down and she left in 2001. She returned after he was ordered to leave the property but left again after he allegedly broke in and assaulted her. She was re-housed. The Council inspected the property and regarded it as uninhabitable. M moved back into the empty property and did a considerable amount of work to renovate it. In January 2002, he applied to exchange with another council tenant as the property was now too big for him. The Council, realising the property was now not empty, got his wife to terminate the tenancy by serving a notice to quit. She wasn’t advised as to the consequences of the notice to quit and later tried to withdraw it (note: once served, a notice to quit may not be withdrawn). In June 2002 the Council decided that M could not have the former tenancy in accordance with their domestic violence policy and because he no longer qualified for a family dwelling.

In October 2002 the Council brought possession proceedings which M defended on the basis of ECHR Art.8. The county court judge dismissed the claim on the basis of a breach of Art.8. The Court of Appeal allowed the Council’s appeal (Bradney v Birmingham CC [2003] EWCA Civ 1783; [2004] HLR 27). M then sought judicial review of the Council’s procurement of the notice to quit and of their decision to initiate possession proceedings. The judicial review also failed (McCann v Birmingham CC [2004] EWHC 2156 (Admin)). M appealed to the European Court of Human Rights.

The ECtHR ruled that:-

a. The house which M formerly occupied as a joint tenant with his wife continued to be his home under ECHR law, notwithstanding that he had no right under domestic law to continue in occupation after his wife had served the notice to quit. [para 46]

b. The service of the notice to quit and the possession proceedings interfered with M’s right to respect for his home under Art.8(1). [para 47]

c. This interference was in accordance with the law and pursued the legitimate aim of protecting the rights and freedoms of others under Art.8(2). [para 48]

d. The ECtHR’s reasoning in Connors v UK [2004] HLR 52 was not confined to cases involving gypsies or where the applicant sought to challenge the law itself rather than its application in a particular case. [para 50] (cf. Kay v Lambeth LBC Nik Nicol 3 1 Pump Court

[2005] QB 352 para 106 and Doherty v Birmingham CC [2007] HLR 32 para 22(iv))

e. The loss of a person's home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of that magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Art.8, notwithstanding that, under domestic law, their right of occupation had come to an end. [para 50]

f. Judicial review proceedings, like the possession proceedings, did not provide any opportunity for an independent tribunal to examine whether the applicant's loss of his home was proportionate under Art.8(2) to the legitimate aims pursued. [para 53]

g. The grant of the right to the occupier to raise an issue under Art.8 would not have serious consequences for the functioning of the courts or for the domestic law of landlord and tenant. As the minority of the House of Lords in Kay observed, it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings. [para 54]

h. It is immaterial whether or not M’s wife understood or intended the effects of her notice to quit. Under the summary procedure available to a landlord where one joint tenant serves notice to quit, M was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there had been a violation of Art.8. M was awarded compensation of €2,000.

Gilboy v Liverpool CC [2008] EWCA Civ 751

L obtained a demotion order against G, after which further allegations of ASB were made. L served the requisite notice and G requested a review. The officer who heard the review made findings of fact and concluded that a case had been made for possession of G’s property. G sought judicial review on the basis that R (McLellan) v Bracknell Forest BC [2002] QB 1129 had been overtaken by Tsfayo v UK [2007] HLR 19, i.e. the procedure was incompatible with ECHR Art.6 due to the lack of an independent and impartial tribunal that could consider the facts. Nik Nicol 4 1 Pump Court

CA held:-

a. The ECtHR in McCann referred to the UK having “a complex system for the allocation of public housing.” Demoted and introductory tenancies are part of that system. The ECtHR did not expressly disapprove of these schemes as violating Art.8. Also, McCann was a case where the authority had deliberately by-passed the secure tenancy system. (para 44) The implication would appear to be that McCann may be distinguished.

b. Arts.6 and 8 are closely correlated when considering the validity of schemes governing security of tenure. It is unlikely that a scheme which is held to have the requisite procedural aspects so as to comply with the requirements of Art.8(2) will still be held to violate Art.6 (para 45)

c. The review powers for demoted tenancies are non-delegable. (paras 47 and 48)

d. Art.6 is engaged. (para 49)

e. Under demoted tenancies, there is no requirement to establish facts (para 51) and, anyway, any fact finding involves, as Lord Bingham put it in Runa Begum v Tower Hamlets LBC [2003] 2 AC 430 (para 9(2)), “staging posts on the way to much broader judgments.”

f. There is no material distinction between introductory and demoted tenancies for these purposes. (para 54)

As well as the fact that some of the above propositions are dubious, Waller LJ said a number of things which are or would appear to be plain wrong:

a. He said the ECtHR in McCann “ruled that Art.6 was not engaged” (para 14). In fact, the ECtHR instead held that there was so clearly no violation of Art.6 (because the relevant civil rights and obligations were determined in a court and no complaint was made of the fairness of the court proceedings) that the complaint of breach of Art.6 was manifestly ill-founded (paras 29-31).

b. He claimed that McLellan has been indirectly approved by the ECtHR (para 25). It’s difficult to see how this statement can be justified.

c. He claimed that the ECtHR expressly approved the approach of Lord Bingham in the minority in Qazi (para 40). Reading the judgment in McCann as a whole, it could be expected that the ECtHR prefer the minority’s view in Qazi, but they never give express approval. The part quoted by Waller LJ is located in a section quoting from all the judgments in Qazi, without any critical comment one way or the other. The reason Waller LJ read McCann in this way would appear Nik Nicol 5 1 Pump Court

to be because Lord Bingham did not criticise the judgment in McLellan and so, on Waller LJ’s reasoning, arguably approved it.

Tomlinson, Ibrahim & Ali v Birmingham CC – CA has heard and judgment is awaited in respect of three joined cases in which the appellants argue that, in order to comply with Art.6, the county court should determine the facts on a homelessness appeal under s.204 of the Housing Act 1996.

Doherty v Birmingham CC [2006] EWCA Civ 1739; [2007] HLR 32

B brought possession proceedings having terminated D’s licence to station his caravan on one of their sites. D contended it would be a breach of Art.8. The county court transferred the claim to the High Court to consider whether the ECtHR’s decision in Connors v UK [2004] HLR 52 allowed him to maintain this defence despite the House of Lords ruling in Qazi v Harrow LBC [2004] 1 AC 983. The High Court made a possession order and D appealed.

The CA explained and followed Kay v Lambeth LBC; Leeds CC v Price [2006] 2 AC 465. The House of Lords heard arguments in March and then invited further submissions in the light of McCann v UK [2008] All ER (D) 146 (see above). Judgment is awaited.

Public law defences

Wandsworth LBC v Winder [1985] AC 461 established that public law defences may be raised in the county court. HL in Kay v Lambeth LBC; Leeds CC v Price [2006] 2 AC 465 restored that position – see Lord Hope at paras 86 and 110 (approved by Lord Scott at para 174, Baroness Hale at para 192 and Lord Brown at para 212) and Lord Brown at para 208.

R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin)

W was an assured tenant of L&Q who sought possession on Ground 8. W sought judicial review of the decision to take possession proceedings on the basis that there had been a breach of her legitimate expectation that L&Q would not rely on Ground 8 rather than any alternative discretionary grounds and that such a breach was also a breach of ECHR Art.8. The court held that there was no such legitimate expectation nor, if there was, was there any breach of it. However, they also made findings of principle on the nature of RSLs as public authorities. Nik Nicol 6 1 Pump Court

The management and allocation of housing stock by an RSL (of which the termination of a tenancy is a part – para 62) is a function of a public nature and therefore an RSL is to be regarded as a public authority within s.6(3)(b) of the HRA 1998 (para 52) because:-

a. The management and allocation of housing stock is not in itself an inherently governmental activity but the nature of an RSL’s activities and the context in which it operates make this a very different situation from an ordinary commercial business; (para 53)

b. The fact that LQHT is a non-profit-making charity acting for the benefit of the community in providing housing for the poor and other disadvantaged groups may not point in itself to its being a public authority (see Poplar HARCA v Donoghue [2002] QB 48), but it does mean that it lacks the private and commercial features which were held in YL v Birmingham CC [2007] 3 WLR 112 to point against treating the care home in that case as a public authority; (para 54)

c. An RSL operates within a particular sector, that of social rented housing, which is not simply subject to detailed regulation, including by the Housing Corporation, but is permeated by state control and influence with a view to meeting the Government’s aims for affordable housing, and in which RSLs work side by side with, or even in place of, local authorities; (paras 55 and 56)

d. Despite the importance of private funding as well, an RSL’s business is heavily subsidised by the state and this funding is attributable to the role they play in the implementation of government policy; (para 57)

e. The voluntary transfer of housing stock to RSLs from the public sector reflects the fact that RSLs are performing functions of the same kind as local authorities in the provision of social rented housing, even though such stock constituted only 10% of L&Q’s stock; (para 58)

f. RSLs’ relationship with local authorities is not purely commercial in that they have a duty of co-operation under HA 96 s.170 and many of their lettings are as a result of local authority nominations arising from such arrangements. (para 59)

In so far as a function of an RSL is a public function which makes it a public authority for the purposes of the HRA 1998, then it is equally amenable to judicial review on conventional public law grounds in respect of its performance of that function. (para 64) It is open in principle to bring a challenge by way of judicial review to an RSL’s decision to terminate a tenancy. (para 66) Nik Nicol 7 1 Pump Court

L&Q have appealed to the Court of Appeal. W is considering a cross-appeal.

Smith v Buckland (aka Smith v Evans) [2007] EWCA Civ 1318; [2008] 1 WLR 661

B’s licence to occupy a pitch at a caravan site was terminated. She defended the possession proceedings on the basis that the court’s power to suspend execution of a possession order (under the recent amendment to s.4 of the Caravan Sites Act 1968) had not solved the incompatibility of English law with ECHR Art.8 which had been identified in Connors v UK (2004) 40 EHHR 189 and on the further basis that S had acted irrationally on public law grounds in seeking the possession order.

CA held that the amended s.4 was within the UK’s margin of appreciation so that the Art.8 argument failed. CA further held that it would only be in a truly exceptional case that it will even be seriously arguable that a public law defence would succeed in circumstances where the public authority has a legal right to possession, such as the termination of a pitch licence or of a head lease. (Note: This is to be distinguished from cases where the legal right to possession only arises after certain statutory procedures have been complied with, e.g. for introductory or demoted tenants.)

Wall LJ (para 70) stated that, if a public law defence is to be raised, it should be pleaded so that the circuit judge having the conduct of the application can decide whether or not an adjournment is required for further evidence to be filed and whether or not oral evidence and cross-examination are necessary.

Sandwell LBC v Constantinou (2007) Legal Action March 2008 18

S terminated C’s introductory tenancy for less than 4 weeks’ rent arrears. The Deputy DJ granted a possession order on the basis that he was bound to do so if a valid s.128 notice had been served and a review carried out. The CJ allowed the appeal and set aside the order on the basis that there had been no witness statement from S explaining the degree of independence of the decision-maker, the way the hearing was conducted and the reason for taking proceedings, as directed by the CA in R (McLellan) v Bracknell Forest BC [2002] QB 1129 (see Waller LJ at para 103).

C successfully defended the claim at the subsequent 2-day trial. S is seeking permission to appeal to the Court of Appeal. Nik Nicol 8 1 Pump Court

Tolerated Trespassers

The number of tolerated trespassers being created should be much reduced now that CPR PD 55 para 10, which allows for postponed possession orders (PPOs) instead of suspended possession orders (SPOs), covers both secure and assured tenancies (cf. Bristol CC v Hassan [2006] 1 WLR 2582). However, there are large numbers of existing tolerated trespassers, including many “entrenched” ones (cf. Marshall v Bradford MDC [2001] EWCA Civ 594; [2002] HLR 22 and Swindon BC v Aston [2002] EWCA Civ 1850; [2003] HLR 42).

Waiting for the House of Lords

London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326; HLR 37 and Knowsley Housing Trust v White [2007] 1 WLR 2897 – conjoined appeals awaiting hearing in HL in October 2008

Ansell In 2001 L obtained SPO which A breached soon thereafter. In 2004 A cleared the arrears. In 2006 L issued new proceedings, allegedly due to A’s anti-social behaviour, arguing that A had no right to remain as a tolerated trespasser. A argued that L should have proceeded by way of a warrant so that she could apply to suspend it under s.85. However, the Court of Appeal held that the SPO had become unenforceable when the arrears were paid off (relying on Marshall and Aston) and the powers under s.85 could no longer be used.

Knowsley KHT obtained SPO in 2004. When W applied to exercise her right to buy as a former secure tenant, KHT claimed she could not because she was a tolerated trespasser. W argued that she was now an assured tenant and that the tolerated trespasser was a concept which did not apply under the Housing Act 1988. CA held that an assured tenancy did not terminate when the possession order was executed but when specified by the order.

Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196

In 1997 SBHA obtained SPO. In 2004 P claimed damages for disrepair. In their defence, SBHA claimed he was a tolerated trespasser. P applied for the SPO to be considered for discharge or rescinded because all arrears had been paid off. The DJ Nik Nicol 9 1 Pump Court dismissed the application and the circuit judge dismissed the appeal. Three arguments were raised before the Court of Appeal to get round the effect of earlier cases:-

1) Marshall and Aston were not binding because they had failed to take into account Payne v Cooper [1958] 1 QB 174 (see Helena Housing Ltd v Mower (2007) Legal Action March 2008 19 and articles by James Stark in Legal Action March 2008 23 & May 2008 25);

2) CPR 3.1(2)(a) may be used to vary SPO;

3) The CA themselves raised the issue of ECHR Art.8.

The CA gave three judgments giving different reasoning, although all three judges hoped the HL would review the entire position soon:-

1) Pill LJ distinguished Payne on the basis that the “focus” in that case was on whether to make an unconditional order subject to conditions whereas s.85(3) requires conditions to be attached and because the court in Payne referred to “non-jurisdictional” issues (paras 28 and 29). Longmore LJ distinguished Payne on the basis that the word “discharge” was used in Payne, there was no equivalent of s.82(2) and the court in Payne did not deal with problems considered in Marshall, namely that of the conditions not being complied with and the court not knowing when it made the SPO whether the conditions would be complied with (paras 64 and 65). Further, he said that, if all this was wrong, the court should not speak with a divided voice and should follow more recent authority unless “it finds itself committed to a course of manifest injustice.” (para 66) Sedley LJ essentially agreed with the last point and left “it to a higher tribunal to say which approach should be preferred.” (para 59)

2) Pill LJ rejected the use of CPR 3.1(2)(a) on the basis that s.85 already provided a scheme for dealing with such orders and the payment of a lump sum towards the arrears was not a sufficient change in circumstances (paras 41-45). Sedley LJ left the question open (para 63). Longmore LJ said he thought “such jurisdiction does exist at any rate in theory” but said he did not think the case should be remitted to the DJ for consideration under CPR 3.1(2)(a) for the reasons given by Pill LJ (para 69).

3) Pill LJ rejected the relevance of Art.8 on the basis that, after Kay v Lambeth LBC [2006] 2 AC 465, “Article 8 has a very limited role in regulating the law which governs the relationship between landlord and tenant” (para 55) and, in any event, it is very doubtful Art.8(1) is engaged where the occupier has exclusive possession and there are no possession proceedings (para 54). Sedley LJ asserted that the precarious nature of the status of tolerated trespasser and its Nik Nicol 10 1 Pump Court

continuance even when arrears are paid off meant that Art.8(1) was clearly engaged and thought there was a cogent argument that the legislation should be re-construed along the lines of Payne (para 60) but that this was irrelevant because the SPO and the status of tolerated trespasser both pre-dated the commencement of the Human Rights Act 1998 (para 61). Longmore LJ refused to express an opinion on Art.8 on the basis that it was academic to this appeal (para 70).

Other recent TT cases

Merton LBC v Jones [2008] EWCA Civ 660

J was a tolerated trespasser following an SPO made in 2005. He was shot at by intruders one day and left. He later picked up his belongings. M successfully argued in the county court that J remained liable for rent/mesne profits until he had given M notice of his departure.

The Court of Appeal allowed the appeal, holding that it was established law that a former tenant who remains in possession after the end of a tenancy is not liable to make payments for his occupation after the date he gives up possession (Southport Tramways Co v Gandy [1897] 2 QB 66). There was no requirement for notice. J was only liable until he had removed his belongings.

Austin v Southwark LBC [2007] EWHC 355 (QB)

A’s brother had been a tolerated trespasser for 20 years. A sought to revive the tenancy after his brother’s death so that he could succeed to the tenancy. It had been held in LB Brent v Knightley (1997) 29 HLR 857 that the right to apply to revive the tenancy did not survive death and was not inheritable, but A argued that the Human Rights Act 1998 had changed the situation and that the right was a possession protected by Art.1 of the First Protocol to the ECHR. The court rejected this idea and also held that, in any event, it was bound by Knightley (according to the House of Lords in Kay v Lambeth LBC [2006] 2 AC 465).

Islington LBC v Honeygan-Green [2008] EWCA Civ 363 (CA) Nik Nicol 11 1 Pump Court

HG’s application to exercise her right to buy had been well-advanced when it was delayed. During this delay, LBI obtained a suspended possession order. HG breached it by failing to make the first payment but then successfully applied to set aside the SPO and paid off all the arrears. Over 1½ years later, LBI again sought possession and HG sought an injunction requiring completion of the right to buy transfer. LBI claimed that her existing right to buy application had not survived the “limbo” period between the breach and the setting aside of the SPO.

LBI lost in the county court and the Court of Appeal which emphasised that, when the date of possession is postponed, the tenancy revives as if it had never ended. They also stated that it is possible for a court to subject the postponement of possession to conditions which could include a requirement not to pursue an existing right to buy application, if it was appropriate, necessary and just (para 40, as per Simon Brown LJ in Lambeth LBC v Rogers [1999] 32 HLR 361 at 370).

Cf. Lambeth LBC v Hamm (2007) Legal Action Jan 2008 34 (Lambeth County Court)

L successfully argued before the DJ that a condition on the postponement of the date of possession, and so the revival of the tenancy, should be that H would not claim for damages for disrepair. HHJ Matheson allowed the appeal on the basis that s.85(3) cannot be construed as permitting the imposition of this kind of condition and, even if that were not the case, it was appropriate in the circumstances of the case to allow the appeal and remove the condition.

Where does this leave TTs?

A. The House of Lords

The CA’s reasoning in Porter is weak, divided and inconsistent. The main basis of their judgment seems to be that they cannot contradict their colleagues who decided so recently and it is up to the House of Lords to sort out the mess.

The worst line of reasoning in all these cases (which originated with Chadwick LJ in Marshall, para 37) is that the wording of s.85(4), taken literally, means that a possession order may not be discharged unless all conditions have been strictly complied with. Their lordships took this to mean that a party who pays late is not entitled to discharge of the order. But what about someone who pays early?

Unfortunately, Porter is the last word in the courts until the House of Lords have their say in October. Nik Nicol 12 1 Pump Court

B. The Subsidiary Arguments in Porter

The only argument that comprehensively failed in Porter was that courts should follow Payne rather than Marshall and Aston. Longmore and Sedley LJJ left the door open to using CPR 3.1(2)(a). Sedley LJ also gave some remarks encouraging reliance on Art.8 – see above for developments relating to that.

C. The Rights of a Tolerated Trespasser

Much of the concern about the status of tolerated trespasser involves the inability to rely on the repairing covenants implied by s.11 of the Landlord and Tenant Act 1985. However, it is not clear why this should be so. There appears to be an unspoken assumption that a tolerated trespasser has no rights worthy of the name. However, Pill LJ in Porter reiterated that, “a tolerated trespasser … has an enforceable right to exclusive occupation of the property and can maintain actions in trespass and nuisance (Pemberton v Southwark LBC [2000] 1 WLR 1672).” That leaves open what causes of action they may have in respect of internal conditions.

Where the landlord has agreed with the tolerated trespasser that they may stay on payment of certain sums, then there is a contract. The purpose of the contract is the provision of residential accommodation. If the premises are in serious disrepair, or otherwise of reduced or no habitability, the landlord has failed to provide the consideration agreed on. It is arguably necessary, on ordinary contractual principles, to imply a term as to fitness for human habitation. If there is total failure of consideration because a property is completely uninhabitable, then restitution of the “rent” payments may be available.

When a tolerated trespasser has been granted their status by court order, it is arguable that there is no contract. However, since there is no contract, there is no reason to exclude liability in negligence (cf. Cavalier v Pope [1906] AC 428). It cannot seriously be arguable that the landlord owes no duty of care at all, not least since that would mean a tolerated trespasser had fewer rights than an actual trespasser. The extent of the duty may be a matter of debate but in many disrepair cases it may well be as useful as any covenant to repair.

Also, some tolerated trespassers may welcome the ability to free themselves from some obligations under their tenancy. For example, most blocks of flats have regulations governing pets, where washing can be dried, placement of TV aerials or satellite dishes, etc. Unless there is a nuisance or trespass, it is difficult to see on what basis a landlord would be able to insist on continued compliance.

D. Statutory Reform Nik Nicol 13 1 Pump Court

Housing and Regeneration Bill has completed the Report stage in the House of Lords, leaving only the 3rd reading and Royal Assent. Therefore, the current provisions are unlikely to be further amended. Clause 298 and Schedule 11 provide for tolerated trespassers. The Housing Act 1985 is due to be amended as follows:-

82. Security of tenure (1) A secure tenancy which is either (a) a weekly or other periodic tenancy, or (b) a tenancy for a term certain but subject to termination by the landlord, cannot be brought to an end by the landlord except by obtaining an order as mentioned in subsection (1A). (1A) The tenancy may be brought to an end by the landlord- (a) obtaining– (i) an order of the court for the possession of the dwelling-house, and (ii) the execution of the order,; (b) obtaining an order under subsection (3), or (c) obtaining a demotion order under section 82A. (2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed.

85. Extended discretion of court in certain proceedings for possession (2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may (a) stay or suspend the execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit. (3) On such an adjournment, stay, suspension or postponement the court (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and (b) may impose such other conditions as it thinks fit. (4) The court may discharge or rescind the order for possession if it thinks it appropriate to do so having had regard to — (a) any conditions imposed under subsection (3), and (b) the conduct of the tenant in connection with those conditions.

The Housing Acts 1988 and 1996 are similarly amended for assured, introductory and demoted tenancies. The amendments would not apply to possession orders made before the commencement date except (para 14):- Nik Nicol 14 1 Pump Court

a. Where it applies to a new tenancy arising under the provisions mentioned below;

b. The tenant has not become a tolerated trespasser; and/or

c. Where the court wishes to exercise the power to rescind or discharge it.

The above-mentioned amendments mean that tolerated trespassers would not be created in future, essentially because the tenancy would continue until a possession order was actually executed. The provisions for existing tolerated trespassers are set out in the following paragraphs of Schedule 10:-

16 For a tolerated trespasser, a new tenancy arises on the commencement date if the dwelling-house was their only or principal home throughout the period they have been a tolerated trespasser.

17 The tenancy will be the same as it was before, i.e. if the original tenancy was secure, so will the new one, if it was introductory, so will the new one, etc.

18 The new tenancy will have the same terms and conditions save that any changes to rent levels and other terms and conditions which came in during the period of tolerated trespass will apply.

19 The year-long period of an introductory or demoted tenancy re-starts when the new tenancy arises.

20 The relevant possession order is to be treated as if it applies to the new tenancy.

21(1) and (2) The new and old tenancies must be treated as the same continuous tenancy for the purposes of succession, the right to buy, Ground 8 and any other circumstances specified by order of the Secretary of State.

21(3) and (4) The court has the power to treat the new and old tenancies as the same continuous tenancy in claims for breach of covenant, statutory duty or any other matters specified by order of the Secretary of State. No criteria are provided for the exercise of the power.

23 With joint tenancies, the dwelling-house need only have been the only or principal home of one of the tenants during the period of tolerated trespass (cf. Marshall). Nik Nicol 15 1 Pump Court

24 The Secretary of State may order that these provisions apply to particular landlords who took over properties occupied by tolerated trespassers before the commencement date. Nik Nicol 16 1 Pump Court

Disability Discrimination

LB Lewisham v Malcolm [2008] UKHL 4

M suffers from schizophrenia. He failed to take his medication for a period of time and during that period he sub-let his council flat. L served NTQ. The sub-tenants left and M moved back in. L brought possession proceedings. M defended on the basis that he had sub-let due to his disability and so his eviction would be contrary to the Disability Discrimination Act 1995.

HL held:-

a. CA correct to over-rule the trial judge and to hold that M was disabled within the meaning of the Act at the relevant time. (Bingham para 6; Scott para 41; Brown para 117; Neuberger paras 127-130; but Hale doubting para 67)

b. CA should not have over-ruled the judge’s conclusion that there was no causal link between M’s schizophrenia and sub-letting (Scott para 41; Hale paras 93-5; Brown para 117; Neuberger para 173).

c. The treatment to which M was subjected was L’s conduct in seeking possession and it is artificial to break that process down into stages such as the service of the NTQ, the issue of a claim form, the obtaining of the order for possession, etc. (Bingham para 7; Hale para 88; Neuberger paras 131-2)

d. Knowledge of the disability, imputed or express, is necessary for liability. (Bingham para 18; Scott paras 28 and 29; Hale para 86; Brown para 113; Neuberger paras 161-3)

e. The required comparison under the Act is between the claimant and non- disabled persons to whom the reason for eviction also applies, i.e. other, non- disabled tenants who also sub-let. Therefore, Clark v Novacold [1999] ICR 951 was incorrectly decided. (Bingham paras 12-15; Scott paras 30-34; Brown paras 112-113; Neuberger paras 136-9; Hale dissenting paras 80 & 81)

f. This approach restricts ss.22 and 24 almost entirely to direct discrimination only. (Bingham para 15; Hale para 76; Brown para 114; Neuberger para 141;) Nik Nicol 17 1 Pump Court

g. A claim for possession can be defeated by a claim of discrimination (Bingham para 19; Hale paras 100 & 101; Neuberger para 160) but Bingham says such a defence would not be made out often while Hale says it would.

Hale was the only one to suggest a solution, namely that the list of potential justifications under s.24(3) should be expanded by regulation under s.24(5) (para 103) as there is currently no other way to introduce an element of judicial discretion where possession is sought on mandatory grounds for a reason tainted by disability discrimination (para 104).

The HL heavily relied on the absence of evidence that L knew of M’s schizophrenia. If they did not, how did a single man like M get to have a council tenancy??

The HL’s reasoning relies heavily on the idea that the arguments put on behalf of M led to conclusions which so defied common sense as to bring into question the premises on which they were based. However, the HL’s reasoning itself leads to the conclusion that it is not unlawful discrimination to refuse entry to a guide dog accompanying his blind owner (see Scott at paras 29 and 35 cf. Hale at paras 73 and 75), although Hale suggested that that situation would be covered by s.21(1) (the duty to take reasonable steps to change the relevant policy or practice) and Neuberger by s.19(3)(a) or (f) (discrimination in relation to access to and use of a public place or facilities for refreshment).

The Government has stated that they “are giving careful consideration to the judgment.”

Floyd v S [2008] EWCA Civ 201; 1 WLR 1274

F claimed possession on Grounds 8, 10 & 11 of Sch.2 to the Housing Act 1988 due to large rent arrears. S sought an adjournment so that disability issues could be investigated but it was refused.

CA held the arrears were not caused by the disability in any event so there was no DDA defence. Mummery LJ’s following statement was relied on by Lords Scott and Brown in Malcolm:

It is not immediately obvious (a) how the 1995 Act could provide a basis for resisting a claim for possession on a statutory mandatory ground or (b) how a landlord would be unlawfully discriminating against a disabled tenant by taking steps to enforce his statutory right to a possession order for admitted non- payment of rent for 132 weeks. The 1995 Act was enacted to provide remedies for disabled people at the receiving end of unlawful discrimination. It was not Nik Nicol 18 1 Pump Court aimed at protecting them from lawful litigation or at supplying them with a defence to breach of a civil law obligation. Like other anti-discrimination legislation, the 1995 Act created statutory causes of action for unlawful discrimination in many areas, such as employment, the provision of goods, facilities and services and the disposal or management of premises, but it did not create any special disability defence to the lawful claims of others, such as a landlord’s claim for possession of premises for arrears of rent. The legislation is not about disability per se: it is about unlawful acts of discrimination on a prohibited ground, ie, unjustified less favourable treatment for a reason which relates to the disabled person’s disability.