Possession Proceedings

July 31st, 2012

The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings. In Birmingham City Council v Lloyd [2012] EWCA Civ 969 Lord Neuberger MR took the opportunity to confirm that the proportionality defence was indeed only rarely likely to be successful. Mr Lloyd was a secure tenant who had moved into the flat of his deceased brother, also a secure tenant, but was told to return to his own property. The Court of Appeal overturned the Recorder’s decision, holding that a finding of depression and some difficulty in obtaining alternative accommodation did not approach the proportionality threshold, and the Recorder had impermissibly taken on the decision-making role of the Council.

The Court of Appeal held in Camden London Borough Council v Stafford [2012] EWCA Civ 839 that a review decision in respect of an introductory tenancy under s.129 founded the jurisdiction of the County Court under s.128 and consequently must be clear and unequivocal. It could not be expressed in conditional terms; it must confirm the decision to seek possession or withdraw that decision. Anything which did not unequivocally confirm the decision, as the letter had failed to do in this case, could not be relied upon to seek possession.

Homelessness

In Konodyba v Kensington & Chelsea Royal London Borough Council [2012] EWCA Civ 982 the claimant was the subject of a decision that she was not eligible for housing assistance because she was subject to immigration control pursuant to s.185(2) of the Housing Act 1996. She had previously appealed to the Court of Appeal but abandoned the immigration issue and the Court held that it was a clear abuse of process for her to attempt to re-litigate the same point in fresh proceedings. The housing review officer had to, and did, consider any new points made but did not have to consider ones already abandoned in proceedings. On the facts the Court held that the officer had been correct to ask whether the claimant was unlikely to work in the foreseeable future – a question of fact – in determining whether she was temporarily unable to work as the result of an illness or accident. It was not appropriate to comb officer decisions when the same legal concept could be expressed in various ways.

Human Rights

In Dukic v Bosnia and Herzegovina (App. No. 4543/09) the applicant requested that the State provide him with a replacement flat following the destruction of his during the civil war. The State never responded to the request or the subsequent proceedings, and failed to comply with the domestic court order to provide him a flat. The Court found a breach of Article 6 in the suggestion that the applicant should have to domestically re-litigate the proceedings six years after winning his domestic case. There was also a breach of Article 1 of Protocol 1 because the domestic judgment was sufficiently certain to constitute a possession, but there was no breach of Article 8 because he had no existing home and Article 8 did not provide the right to a home. No damages were awarded.
Huseynov v Azerbaijan (App. No. 56547/10) was a case in which the applicant had been given a voucher for a flat and obtained an order for possession of the flat in 1998. The State took no steps to enforce the order and remove the existing occupant. The Court found a breach of both Articles 6 and 1 of Protocol 1 in the excessive delay in State action, and the consequential excessive burden on the enjoyment of possessions.

In Lindheim v Norway (App. No.s 13221/08 & 2139/10) the Strasbourg Court held that the indefinite extension of a lease on a very low rent did amount to an interference with the Article 1 of Protocol 1 right to enjoyment of possessions. Norwegian legislation which reduced the value of rents under the extended leases to around 0.25% of market value did not strike a fair balance and imposed a disproportionate burden on the leaseholders.

Joint Tenancy and Succession

In Solihull MBC v Hickin [2012] UKSC 39 the Supreme Court held by a bare majority (Lords Mance and Clarke dissenting) that the common law position that where a tenancy is granted to two persons as joint tenants and one of them dies, the tenancy vests in the survivor as the sole tenant was unaltered by ss.87-89 of the Housing Act 1985. Where the surviving joint tenant left the property prior to the succession his right of succession was not altered, but he lost his statutory security and the contractual tenancy had been validly terminated by the notice to quit.

Implementation of the Localism Act 2011

The Allocation of Housing (Qualification Criteria for Armed Forces) (England) Regulations 2012 (SI 2012/1869) (in force from 24 August 2012) provides that an authority may not use the want of local connection so as to exclude specified categories of person from being allocated housing. Those categories are: (a) current or former members of the armed forces who left the service within five years of their application for an allocation; (b) persons who are serving or who have served in the armed forces and who suffer from a serious injury or disability which is attributable in whole or part to that service; and, (c) a spouse or civil partner who is or was living in accommodation provided by the Ministry of Defence and whose former spouse or civil partner was a serviceman whose death was attributable in whole or part to their service.

The Department for Communities and Local Government has published guidance on the ‘Allocation of Accommodation: Guidance for Local Housing Authorities in England’ (June 2012) issued under s.169 of the Housing Act 1996. The Guidance deals with the changes made to allocation schemes by the Localism Act 2011.

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