24 March, 2015
Last week, the Supreme Court published its decision on the Permission to Appeal application made previously by Southend-on-Sea Borough Council in the case of Southend-on-Sea v Armour.
Southend-on-Sea had sought to appeal the earlier decision of the Court of Appeal, who had decided that the good behaviour of the tenant after the landlord had issued possession proceedings was a 'relevant factor' in the assessment of proportionality.
Facts of the Case
The facts of this case were that in January 2011 Southend granted Mr Armour an introductory tenancy of a property. Shortly after he moved in, a neighbour alleged that Mr Armour had sworn at them and threatened them. In March 2011, Mr Armour was rude and aggressive over the phone to the authority and at the end of March 2011 it is alleged that contractors attended Mr Armour's flat to carry out electrical works and turned off the electricity supply. They alleged that Mr Armour then turned the electricity back on and one of the contractors suffered an electric shock. It was also alleged that Mr Armour had been abusive towards the contractors.
Southend issued possession proceedings in June 2011 after Mr Armour had initially sought a review of the decision to serve notice on him. After proceedings were issued, Mr Armour was found to have Asperger's syndrome and to be suffering from depression. He did not have capacity to defend the claim and a litigation friend was appointed. This caused further adjournments and the matter did not reach trial until March 2012. During this time, there had been no further incidents of ASB and Mr Armour had the support of a number of agencies and family members. The trial judge found that it would be disproportionate to grant a possession order, having regard to the length of time which had elapsed without complaints about Mr Armour's behaviour since the claim was issued.
The High Court dismissed Southend's appeal and upheld the decision of the trial judge. The High Court stated that the good behaviour of Mr Armour following the issuing of possession proceedings was a relevant consideration when determining the proportionality of ordering possession. The proportionality review was to be conducted on the evidence available at the date of the hearing, despite a delay of nearly a year caused by the tenant's adjournment applications. Therefore, the trial judge was entitled to examine the absence of recent complaints and there had been no error in the approach taken by the trial judge.
Southend then further appealed to the Court of Appeal contending that the fact that there had been no complaints about Mr Armour's behaviour after March 2011 could not found a defence based on Article 8.
The Court of Appeal dismissed Southend's appeal. Proportionality has to be decided as at the date of the hearing. Subsequent behaviour, even good behaviour, could be a relevant consideration when questioning proportionality.
Southend then further appealed to the Supreme Court. The Supreme Court subsequently refused to grant permission for appeal. In refusing permission to appeal, the Supreme Court determined that "Permission to appeal be refused because the application does not raise a point of law of general public importance which ought to be considered by the Supreme Court at this time."
If you have any questions in relation to this article please contact Bethany Paliga by email or on 01772 220241.