Public law defences can apply to possession proceedings in exceptional circumstances


21 April, 2010

The Court of Appeal has recently been required to provide a judgment upon a case concerning human rights issues in possession proceedings. This area of law has been the subject of considerable judicial attention in recent months and there is also the anticipated decision due from the Supreme Court in Manchester City Council v Pinnock (2009) EWCA Civ 852 in July 2010.

In the conjoined appeals of Mullen v Salford City Council; Powell v Hounslow London Borough Council; Hall v Leeds City Council; Frisby v Birmingham City Council; Mushin v Manchester City Council [2010] EWCA Civ 336, arguments were brought concerning defences under Article 8 of the European Convention on Human Rights 1950 which grants every person the right to 'respect' for their 'home'. The Court of Appeal's decision will therefore be of considerable importance and significance to all social housing providers.

The Facts

It should be firstly noted that the five cases concerned possession claims involving non-secure tenancies granted to applicants for homelessness assistance under the Housing Act 1996 or in respect of introductory tenancies.

The reasons why possession was sought of the properties in question included rent arrears, allegations of domestic abuse and anti social behaviour.

In each of the appeals, attempts were made to initiate a public law defence on behalf of the tenants on the grounds that obtaining possession of the respective properties was a decision which no reasonable person would consider to be justifiable (this is known as a 'gateway (b)' defence as stated in Kay v Lambeth LBC (2006) UKHL 10).

The Court of Appeal was required to consider a number of separate issues in order to reach a decision in the case, which are detailed below.

Are 'gateway (b)' defences excluded from county court proceedings?

The Court firstly considered whether county courts, as a whole, are permitted to consider a 'gateway (b)' defence raised during possession proceedings. It was held that even in situations where the occupant of the property in question did not have a private right upon which the public law argument depended, they were still able to run a public law defence in the county court. The court stated that it was merely following the previous binding decision in Doherty v Birmingham City Council (2008) UKHL 57.

However, the court did state that a court would not have the required jurisdiction to consider a 'gateway (b)' defence if the provisions of the relevant statute (which created the scheme) excluded the right to do so.

Do the relevant statutes prevent consideration of 'gateway (b)' in these cases?

Leading on from the first question being answered in the affirmative, the court then examined whether it was possible in each of the five cases for there to be a consideration of 'gateway (b)': it should be noted that three appeals concerned introductory tenancies and the remaining two involved non-secure tenancies to homelessness applicants.

The Court of Appeal was able to reach its decision in the context of homelessness applicants by the binding nature of the earlier case of Barber v London Borough of Croydon [2010] EWCA Civ 51 which recognised the existence of a 'gateway (b)' defence in county court possession proceedings. The court also noted that there had been other case law which had also acknowledged such defences: McGlynn v Welwyn Hatfield District Council [2009] EWCA Civ 285.

In relation to introductory tenancies the court ruled that, as had been often held by them before, the procedure for terminating such tenancies is compatible with Article 8, provided that all of the relevant requirements had been fulfilled, as cases such as Manchester City Council v Pinnock had previously shown. There was no relevant jurisdiction held by the county court to hear public law defences in this context. Instead, the only possible alternative would be to adjourn the possession proceedings in order to enable an application to be made for judicial review.

Does 'gateway (b)' envisage a full review into the proportionality of the possession order?

The Court of Appeal made reference to the decision in Doherty and held that this verdict of the House of Lords established the stance that a challenge under 'gateway (b)' to a decision to seek possession of a property did not permit a proportionality review under Article 8 of the 1950 Convention.

How wide is the scope of 'gateway (b) and is any other protection afforded to occupiers?

In answering this element of the judgment, the Court of Appeal stressed the importance of recognising the importance of assuming that the laws passed by Parliament were compliant with the rights provided by the 1950 Convention. It was held that both the introductory tenancy scheme and the relevant homelessness legislation were also compliant and therefore it would only be in "highly exceptional cases" that any 'gateway (b)' defence to possession proceedings could be established. The court referred to previous case law which stated that such statutory schemes represent a democratic solution to the problems inherent in housing allocation.

The court then considered when such a defence could be available. In the context of introductory tenancies, the question for deliberation would be whether there was a highly exceptional fact or circumstance which should lead to the county court adjourning the matter so that judicial review could be applied for in the Administrative Court. An example was given in relation to allegations of anti social behaviour. The court said that questions of fact over whether the behaviour had taken place would be something that Parliament would have contemplated as being 'likely'. Therefore, a full inquiry would not have to take place and unless the decision taken by the local housing authority was one which no reasonable authority would have taken, there should be no question of adjourning the case until a tenant had brought judicial review proceedings.

For individuals who had been granted tenancies under homelessness legislation, the position was said to be rather different. One example of this distinction was that the legislation did not provide for a review mechanism about the facts which led to a notice to quit being served. Again, it was said that where such a notice had been served, it would take "highly exceptional circumstances" for a 'gateway (b)' defence to be applicable. The court gave the example of Barber of where the defence could be used: it had appeared that the local authority had been unaware of the mental illness of the occupier when they served a notice to quit and to the risk to his life if he was to be moved. The court said that anything less than this kind of risk would be unlikely to qualify as so exceptional as to permit a public law defence.

Are steps taken after a NTQ has been served 'separate' and open to review?

The final issue that the Court of Appeal was asked to consider was whether any steps which were taken by a local authority to obtain a possession order, once a notice to quit had been served, could be viewed as being unconnected and therefore be subject to judicial review.

The court said that the doctrine of judicial review would apply to both 'stages' and would apply to decisions to commence legal proceedings. It was stated that a local authority would be bound to consider whether it should continue to proceed with possession action if an introductory tenant provided evidence that their behaviour had improved. However, it would not necessarily be unreasonable for the authority to elect to continue with the action after permitting the tenant to 'put forward their case'.


In summary, the Court of Appeal dismissed all five of the appeals. However, one postscript to bear in mind is that leave to appeal to the Supreme Court was granted in Powell v Hounslow LBC (relating to homelessness) and also in Hall v Leeds City Council (concerning introductory tenancies). It may be advisable to check whether the Supreme Court does indeed hear these cases and any outcome that is reached, as they would be of considerable importance to local housing authorities in particular.

Those involved in the provision of social housing will want to not only bear in mind the Court of Appeal's decision in these conjoined appeals, but also forthcoming decisions such as the Supreme Court's ruling in Manchester City Council v Pinnock.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.


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