Southern Housing Group V Ahern
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.
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:-
Southern argued that it had done more than enough before deciding to serve the Section 21 Notice:-
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.
The appeal judges acknowledged that the relevant law was as follows:-
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.
The points to note from the case are as follows:-
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