A person holds the silhouette of a family house in their hands

Proportionality and possession proceedings – a success story

In the recent case handled by the Clarke Willmott LLP Housing and Asset Management Team on behalf of the South Essex Homes, Southend-on-Sea Borough Council secured a possession order after successfully appealing a decision of a County Court judge not to award the Local Authority a possession order. The issue was whether the Judge had erred by failing to summarily assess the merits of Mr Allen’s proportionality Defence.

Summary of Facts

Mr Allen lived with his parents in a three bedroom property since November 1955. His parents were joint secure tenants. Mr Allen’s father died in September 1996. His mother then succeeded to the tenancy. Mr Allen’s mother then died in January 2010.

The Local Authority became aware of Mr Allen’s mother’s death in November 2010. Mr Allen was not eligible to succeed to the tenancy and the Local Authority served a Notice to Quit on him and made a claim for possession of the property.

Mr Allen was given an opportunity to raise a Defence at the first possession hearing. He told the Court that he had lived in the property since 1955 and that he suffered from depression and could not cope with the trauma associated with a move. The case was listed for a further hearing to consider whether he had raised a seriously arguable Defence to the possession claim.

The District Judge at the second hearing was referred to the decision in Birmingham City Council v Lloyd and asked to consider the merits of a Defence now pleaded and whether the nature of Mr Allen’s Defence were seriously arguable to pass the high threshold of a proportionality Defence. The District Judge refused to make a summary assessment and instead said that the case was “not one where you could say that the human rights argument that is being advanced does not stand a chance of success” without explaining why she believed this to be the case. The judge then set the matter down for trial.

The Appeal

The Local Authority appealed the decision of the District Judge on the basis that she had failed to deal with the matter on a summary basis. The appeal was allowed and a Possession Order was made. The appeal court found that “the District Judge was wrong and applied the wrong test having considered Mr Allen’s Defence. The appeal court also held that “it cannot be said, given the proportionality test set out and summarised, that this is an Article 8 Proportionality Defence which is seriously arguable.”

For further information, please contact Kary Withers or Senga Howells in our Housing and Asset Management Team.