Phillip Barber from Zenith Chambers acted on behalf of the Defendant tenant in Chesterfield Borough Council v Bailey [2011] EW Misc 18 (CC) 22 December 2011.

The robust judgment in this case is of interest to housing practitioners as it provides an early and useful indication as to the approach a county court judge might take in relation to an Article 8 challenge to possession proceedings and whether seeking possession was a proportionate means of achieving a legitimate aim. 
 

In his article Philip provides housing law specialists with a useful summary of the facts of the case and judgement.

Facts
Mrs B had occupied as a secure tenant premises owned by Chesterfield Borough Council for some 18 years having moved to her current home some 9 years ago. When she moved to her current home, her husband became a joint tenant and they resided there as joint tenants until August 2005 when the relationship broke down and Mr B moved out of the property leaving Mrs B there with her 2 sons. On the 6 September 2010 Mr B served a notice to quit the premises in writing and thereafter Chesterfield Borough Council sought to evict Mrs B, bringing proceedings for possession in the Chesterfield County Court.

Mrs B sought to defend the proceedings on the basis:
1. That the notice to quit was defective; and
2. That the proceedings for possession breached her Article 8 rights to a home

Whilst the Defendant was successful on the notice to quit point (the notice was in effect only 27 ½ days rather than 28 days) the case is of importance as it represents an early and useful indication as to the approach a county court judge might take in relation to an Article 8 challenge to possession proceedings.

In relation to proportionality, after considering the relevant case law, the court asked itself the question whether seeking possession was a proportionate means of achieving a legitimate aim and in a robust judgment determined that it was not. The tenancy agreement contained a provision that the rule of law in Monk  would not be applied in circumstances where the former joint tenant had occupied the property for a period of at least 15 years. We hinged part of our argument in relation to proportionality on the fact that this cut off was irrational and there should be an exception in a case like Mrs B where she had in fact occupied Council accommodation in excess of 15 years but not this particular property.

The judge concluded the following:
This is a case where the tenant has (as Mr Barber points out) had a secure tenancy which she could only lose on one of the grounds in schedule 2 of the Housing Act 1985. Had she received advice she could have made an application for a transfer of tenancy under s53 and schedule 7 to the Family Law Act 1996, which would have been almost certain (and certain by the time of the Notice to Quit in this case) to succeed. In this case the serving of notice by one joint tenant terminated the contractual tenancy and allowed the claimants to claim possession. They could not have done so otherwise under any of the grounds in schedule 2 of the HA 1985. The serving of notice to quit was an act over which the defendant had no control. Once it had been carried out her rights to her home were limited to those she could assert under the Convention. I am satisfied that the local authority encouraged, once he had appeared at their door, Mr Bailey to go through the procedure of serving a notice to quit.
..................
The test that I have to apply is: Was seeking possession in this case proportionate means of achieving a legitimate aim? Was it necessary in a  democratic society. The guidance that I am given in Pinnock  at paragraph 52 is that where (as here) the person has no right in domestic law to remain in occupation of his home, the proportionality  of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights. It will also, at least normally, enable the authority to comply with its duties in relation to the distribution and management of its housing stock.  
..............
I have already said that I am not prepared to hold that the 15 year rule is irrational, but that I would prefer it had the possibility of exceptions. I have reservations about his submission set out at paragraph 51 (a) above, that Monk  cannot survive the full effect of an article 8 challenge. It remains the law and I must apply it (as was accepted by Mr Barber). I observe however that the more unfair its application appears on the facts of a case the more likely it is that the reliance on it will not be proportionate. Ultimately in this case I have looked at whether the council have in fact given proper weight to the Monk circumstances in which the house fell into their hands, and whether they have considered the prejudice suffered by the defendant as a result of that fact, as against other tenants who retained security by other permitted routes. I have looked at the fact that the proceedings come about really through no fault on the part of the defendant, and at the fact that she had no possibility of intervening once the husband went to the council. In my judgment their having the possibility of obtaining possession in this case was a windfall. Parliament can consider enacting law which will enable under occupied property to be recovered, and enable re-allocation of property according to need, and allow tenants to be moved from one property to another. If that occurs all local authority tenants will have their situations dealt with fairly and on the same basis. Until that happens Local Authority tenants have security in accordance with the present law. The basis of that security and the distinctions between secure and non secure tenants are set out at paragraph 10 of the Judgment of Lord Hope in Powell. I consider that I must place in the balance the fact that the council in this case would not be in the position that they are now in but for the notice given by Mr Bailey.

It seems to me important, therefore to try to link the proportionality issue with an aspect of the Local Authorities policy and procedures which could be seen as unfair in its application to a particular occupant faced with possession proceedings. In this case we had the procurement of the notice to quit coupled with the 15 year rule which seems to have tipped the balance in Mrs B’s favour.

Full details of the case is available on Bailii and through the Yorkshire Housing Law Practitioners Association Website www.yorkshirehousinglaw.co.uk)