The headline

The Court of Appeal has upheld the County Court's decision that Southern Housing Group's (Southern) decision to serve a Section 21 Notice and seek a possession order terminating Mr Ahern's starter was lawful, in the face of allegations that it was unlawful due to Southern's alleged failure to comply with its own policies.

The Court of Appeal has endorsed the need to take a "purposive and pragmatic" approach to the need for compliance with policies and procedures. Whilst social landlords should be expected to comply with the spirit of their own internal processes, the Ahern decision means it will now be harder for tenants to argue that minor procedural failures can be relied on to argue that landlords have acted unlawfully and should not be entitled to the remedies they seek from the courts.

Facts

Southern granted Mr Ahern a starter tenancy of a flat in Canterbury in April 2012. Southern extended the starter period for 6 months. Mr Ahern is described in the judgment as:-

"a very vulnerable alcoholic whose drunken, anti-social and on occasions lewd conduct, whether he can control it or not, has disturbed and on occasions greatly upset his neighbours, also tenants of the landlord, and others."

On 6 June 2013, Southern decided to serve a Section 21 Notice and notice was actually served on 18 July 2013 with possession proceedings being issued in early October 2013.

When the decision to serve the Section 21 Notice was taken in June 2013, it is hard to believe that the officer dealing with Mr Ahern would have expected the Court of Appeal to be analysing and passing judgment on the lawfulness of that decision almost four and a half years later!

Mr Ahern contested the possession claim. His defence was simple. Southern had failed materially to comply with its own policies prior to taking the decision to serve the Section 21 Notice, meaning that when the Notice was served, it was unlawful as a matter of public law as a result of Southern's policy breaches.

The Judge in the County Court found in favour of Mr Ahern and granted a possession order, and Mr Ahern appealed.

The main basis of the appeal was that the County Court had: (i) failed to make adequate findings that Southern had not been in breach of its public law duty to comply with its policies, and (ii) wrongly concluded that Southern was not in breach when the Section 21 Notice was served. Mr Ahern argued that Southern had:-

  • Failed to follow its policy commitment to identify "any support needs or vulnerabilities throughout the tenancy";
  • Failed to follow its policy commitment to take those needs into account and consider whether support could be put in place;
  • Failed to take account of Mr Ahern's vulnerability, or to properly review his case and consider the impact of eviction upon him, before deciding to serve the Section 21 Notice; and
  • Failed to follow its policy commitment by not contacting Mr Ahern and carrying out review visits before taking enforcement action.

Southern argued that it had done more than enough before deciding to serve the Section 21 Notice:-

  • Southern staff were well aware of Mr Ahern's vulnerabilities – the community order imposed on him in 2012 required him to attend alcoholism treatment but, as Southern well knew, he had continued drinking;
  • Mr Ahern was subsequently bailed away from his flat, and Southern had made many attempts to locate him but without success;
  • His case was reviewed twice before the decision to serve notice was taken. After that decision was taken, Mr Ahern was subsequently arrested and pleaded guilty to affray;
  • As a social landlord, Southern was of course well qualified to understand Mr Ahern's predicament and the effect that eviction would have on him;
  • Mr Ahern had the necessary support available to him but had chosen not to engage. There was nothing else that Southern could reasonably do; and
  • It surely cannot be right to impose a burden on a social landlord that would have required Southern to continue referring and signposting Mr Ahern to support agencies when his whereabouts were unknown and once he had been remanded in custody.

The case came before the Court of Appeal on 1 December 2016. Almost 12 months later, on 28 November 2017, the three Court of Appeal judges gave their judgment.

Court of Appeal decision

The appeal judges acknowledged that the relevant law was as follows:-

  • Southern was obliged to follow its own policies, save where there was good reason not to;
  • Mr Ahern did not need to be able to prove that he had a 'legitimate expectation' that Southern would do so; and
  • If Southern had breached its policies, the question was whether the breach was material to the decision to serve notice.

The judges gave Mr Ahern's appeal short shrift and said that by the end of the barristers' argument, it had become clear that Mr Ahern's appeal would not succeed. The judges therefore dismissed Mr Ahern's appeal and removed the stay that had been in place pending the appeal, enabling an eviction to take place.

Learning points for social landlords

The points to note from the case are as follows:-

  • It remains the law that social landlords will be expected to comply with their own policies, and that if they depart from them in a material way before taking legal action, a tenant could persuade the court that the legal action was unlawful;
  • It is not for the courts to expect absolute, 'to the letter', compliance – a "purposive and pragmatic" approach should be taken;
  • The case is a reminder that the lawfulness of an 'everyday' housing decision – in this case, whether or not to serve a Section 21 Notice – could end up being analysed by a court further down the line; and
  • A less obvious, but nonetheless noteworthy, lesson to learn is the sheer length of time that a court case can take to get from start to finish. In Southern's case, a possession claim issued in October 2013 was finally concluded in November 2017 - and it may still be necessary to wait even longer before an eviction date is listed!

 

For more information please contact Steven Eccles.