Plymouth City Council v Hoskin

In possession proceedings, the statutory assessment of reasonableness requires a methodical proportionality analysis under Article 8, even though the result will usually be the same. A court should recognise that a tenant evicted for conduct making him intentionally homeless may receive no accommodation duty from the local authority. Assurances about future accommodation may therefore provide no sound basis for making an outright possession order. Where these issues were not properly considered below, permission to appeal may warrant reconsideration. The jurisdictional consequences of adjusting an order after refusing permission remained unresolved.

A District Judge made an outright possession order against a disabled council tenant following findings of a long history of intolerable anti-social conduct. An injunction against re-entering the relevant street was also granted. The county court judge refused permission to appeal, concluding that the decision was open to the District Judge after a fair hearing, but adjusted the dates for possession and the injunction.

On an out-of-time application to the Court of Appeal, the applicant relied on a transcript suggesting that the District Judge had relied on assurances concerning accommodation after eviction without considering the likely consequences of intentional homelessness. The central issues were whether the possession order should be reconsidered, whether the adjustment of the order created jurisdiction notwithstanding section 54(4) of the Access to Justice Act 1999, and whether the application should instead be renewed below.

Lord Justice Sedley adjourned the application for permission to appeal to a full court, with the appeal to follow if permission was granted. The request for an extension of time was also stood over.

1. The District Judge had found sufficient anti-social conduct to justify a possession order, which could be suspended or outright. The principal debatable issue was the decision to make the order outright.

2. The local authority’s counsel had not, on the material before the court, misled the District Judge. The difficulty was that the District Judge may not have appreciated that the answer to the gateway question whether the applicant was intentionally homeless was almost bound to be yes, in light of the reasons for eviction. If so, no obligation to provide accommodation would arise, making the apparent comfort derived from the local authority’s information baseless.

3. The transcript suggested that the District Judge had formed a view before hearing the applicant’s counsel, although he then listened to the submissions before confirming the decision. A medical report might have been appropriate before finally deciding whether the order should be suspended.

4. The Human Rights Act and Article 8 require a more methodical approach to proportionality, and therefore to reasonableness, than treating them as adding nothing to the statutory test. The result will nevertheless ordinarily be the same.

5. The jurisdictional argument under section 54(4) of the Access to Justice Act 1999 was difficult and had not been developed by counsel. Renewal before the District Judge or the county court judge was preferable if legally available.

Execution of the possession order was stayed pending renewal before the full court, with liberty to apply to lift the stay if further anti-social behaviour occurred. The full court was directed to include Brooke or May LJ.

• Court of Appeal (Civil Division): The application for permission to appeal was adjourned to a full court, with any appeal to follow if permission was granted. The extension-of-time application was stood over.
• Plymouth County Court: His Honour Judge Tyzack QC refused permission to appeal, holding that the District Judge had reached a decision open to him after a fair and properly conducted hearing. He adjusted the possession and injunction dates.
• District Judge: An outright possession order and a six-month injunction were made following findings of anti-social conduct.