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

Southend-on-Sea Borough Council v Armour

Good behaviour is relevant when determining proportionality

A decision of the High Court last year, which has threatened to undermine the purpose of introductory tenancy agreements and, by implication, the probationary or starter tenancy regime, will be considered again in the Court of Appeal later this year.

This decision, which appears to be at odds with recent case law, is resulting in county courts across the country failing to deal with some claims summarily. Some defendants (or more accurately, their lawyers) are seeking to engineer the adjournment of hearings only then to produce a defence in order to seek to demonstrate good behaviour since the claim was issued.

Robert Armour was granted an introductory tenancy by Southend-on-Sea Borough Council in January 2011. Complaints about Mr Armour’s conduct were received shortly after he moved into the property. The council then served an eviction notice on Mr Armour, and then, with Mr Armour’s involvement, conducted a review of their decision to take action to seek possession of the property. The decision was upheld following the review and a possession claim was issued.

There were delays in the case coming to trial because the case was adjourned on three occasions at the request of Mr Armour’s solicitors first, in order for him to have more time to secure public funding; secondly, to “pursue judicial review proceedings” which were later aborted and thirdly, for an assessment of his capacity.

The county court judge dismissed the possession claim on the basis that there had been no further reports of bad behaviour since the issuing of proceedings and Mr Armour had complied with the terms and conditions of his introductory tenancy agreement for an 11 month period. Whilst no criticism was made of the council in its conduct of the claim, including its compliance with internal procedure, it was decided that taking into account Mr Armour’s good behaviour at the date of trial, meant – in this judge’s opinion – whilst it had been proportionate to serve the notice and issue the claim for possession, it was no longer proportionate to make a possession order because of the passage of time since the claim was issued without further incident.

We promptly submitted an appeal to the High Court. Surprisingly, the High Court agreed with the trial judge, deciding that a period of good behaviour was a relevant consideration when assessing the proportionality of the eviction. The decision essentially drives something of a coach and horses through the council’s introductory tenancy regime.

An appeal hearing will take place later this year. Whatever the outcome, it is hoped that the court will provide further guidance to social landlords on what factual circumstances could give rise to a successful defence to a possession claim brought against probationary tenants on proportionality grounds.

For further information please contact Lindsay Felstead.