Social housing practitioners have seen a number of cases recently regarding the Court’s ability to grant forced access clauses in injunction applications issued where gas safety checks are outstanding due to the tenant failing to provide access.
The recent case of Plymouth Community Homes Limited v Mr Lee Hammond adds to this growing collection of decided cases but instead looks at access requests for electrical safety inspections to be carried out. The same question remains to be answered however – can a social landlord obtain an Order permitting forced entry into a tenant’s property after attempts of access were repeatedly denied?
Whilst the Court specifically stated that the Plymouth case dealt with electrical and other safety checks and not gas safety checks, it also stated that the essential legal principles remain the same in all cases.
In Plymouth, the Claimant had obtained an Injunction Order requiring the Defendant to permit access so that the necessary electrical safety inspection could be carried out. It is important to note that the Injunction did not contain a forced access clause at the point it was granted. The Defendant continued to deny access despite the Injunction Order, and the landlord brought the matter back before the Judge, primarily by way of an application under rule 70.2A of the Civil Procedure Rules. CPR 70.2A allows the Court to direct that an act required by an order may, so far as practicable, be done by another person where the “disobedient party” has failed to comply. Plymouth therefore asked the Court to authorise it to enforce the existing Injunction Order by forcing access to the property itself.
The case addresses a practical problem that social landlords and local authorities have faced for some time: where access is repeatedly refused, is a landlord really entitled to obtain an order permitting forced entry?
Most tenancy agreements contain access clauses allowing entry on notice for inspections and/or repairs. However, those contractual obligations can appear to carry little practical weight where access is refused. In Plymouth, DJ James recognised the potential application of CPR 70.2A in that context. Rather than ordering the Defendant to do anything further, the Court was prepared to authorise the Claimant to take the steps necessary to give effect to the access rights already established by the existing Injunction Order, provided that the order had first been breached.
The decision also contributes to the developing understanding of the interaction between a tenant’s right to quiet enjoyment and a landlord’s rights of access. DJ James recognised that both rights exist within the framework of the tenancy agreement. On that basis, the Court was willing to balance the tenant’s privacy with the landlord’s safety obligations and the need to secure compliance with an existing court order.
Other considerations
Despite the practical value of the Court’s decision, applications of this kind may still raise significant procedural and human rights concerns. Forced entry into a residential property engages issues of vulnerability, procedural fairness and Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life. The Court acknowledged that there may be cases where it would not be reasonable for a landlord to force entry, for example, where a tenant is vulnerable and forced entry would present a risk of harm to the tenant or to those attending the property. Future applications for forced access should therefore address safeguarding issues and include evidence of reasonable engagement with the tenant, together with any steps taken to accommodate their needs where vulnerabilities are apparent.
Takeaways going forward when applying for forced access
- Ensure the tenancy agreement relied upon in the application contains clear access provisions, including any wording said to support forced access.
- Consider whether welfare checks, vulnerability enquiries or mental capacity assessments are required where tenants continue to deny access.
- Warn tenants, before pursuing an application for forced access, of the consequences of continued refusal to provide access.
Plymouth Community Homes Limited v Mr Lee Hammond marks a significant development in housing law and suggests that courts may be willing to authorise enforcement where tenants repeatedly deny access for important safety inspections. A higher court decision on the issue remains awaited. Unless and until this approach is overturned, however, the decision is likely to influence future applications for access injunctions across the housing sector.
If you would like to discuss this further, please get in touch with our housing management team.
Written by Jordan Johan Alimin