London Borough of Merton v Williams

In introductory-tenancy possession proceedings, the court must consider whether the statutory procedure and Convention rights have been respected. If the tenant protests the proposed order and there is an apparent serious procedural flaw, the court should raise the issue of its own motion and allow the parties to consider an adjournment or judicial review.

That duty does not require every notice of proceedings to address necessity or proportionality under article 8. Reasons must be judged in context. A failure to give fuller reasons may not justify relief where investigation would inevitably have produced the same lawful decision and judicial review would have had no real prospect of success.

The Council granted the respondent an introductory tenancy under the Housing Act 1996. It served a notice of proceedings for possession based on his failure to take up occupation and rent arrears. Following an internal review, possession proceedings were issued and a district judge made a possession order.

On appeal, the county court set aside that order and adjourned the possession claim pending the respondent’s proposed judicial review of the Council’s decisions. The county court considered that the notice and review decision gave inadequate reasons and failed to address housing benefit, necessity and proportionality. The Council appealed, raising the scope of the court’s duty to consider Convention issues and whether judicial review had any realistic prospect of success.

Appeal allowed. The possession order made by the district judge was restored.

1. The court hearing possession proceedings is itself a public authority. It must refrain from acting incompatibly with Convention rights. In an introductory-tenancy case it must consider the statutory procedure and have regard to the possibility that an order might infringe the tenant’s rights.
2. Generally, it is for the tenant to invoke the internal review and judicial-review procedures identified in McLellan v Bracknell Forest BC [2001] EWCA Civ 1510. However, where the tenant protests against possession and there appears to be a serious procedural flaw, the court should raise the possible flaw of its own motion and give both parties an opportunity to consider it. The threshold is not confined to exceptional cases.
3. The notice served under s.128(3) of the Housing Act 1996 was valid and sufficient. It adequately stated the reasons for seeking possession. The Council was not required at that stage to address necessity or proportionality under article 8(2).
4. The review decision should have explained that the arrears were connected with the respondent’s admitted failure to occupy and consequent lack of entitlement to housing benefit. The omission was a procedural defect capable of being raised by the district judge, but the surrounding material showed what the reviewing officer must have understood.
5. Applying the principles concerning inevitable outcome and discretionary judicial review relief in Barty-King v Ministry of Defence [1979] 2 AER 80, Hussain Ali v Somirun Ness v London Borough of Newham [2001] EWCA Civ 73 and R v City of Westminster, ex p Ermakov (1995) 28 HLR 819, any investigation would have established that no housing benefit was due before occupation and that the arrears justified possession. Judicial review therefore had no real prospect of success.
6. The new argument that no introductory tenancy existed before occupation was not decided. The court had grave doubts about its correctness and declined to permit it to be raised for the first time on appeal.

• Croydon County Court: On 22 November 2001, HHJ Ellis allowed the appeal from the district judge, set aside the possession order and adjourned determination of possession pending proposed judicial-review proceedings.
• Croydon County Court, District Judge Mills: On 3 November 2000, made an order for possession.
• Court of Appeal (Civil Division): Allowed the Council’s appeal and restored the district judge’s possession order. The respondent was awarded one half of his costs in the Court of Appeal and below.