McGlynn v Welwyn Hatfield District Council

An occupier of non-secure local-authority housing may resist summary possession where there is a seriously arguable public-law challenge to the authority’s decision to seek possession. The challenge is not confined by a formulaic list of factors. It is determined under ordinary common-law public-law principles, rather than through the lens of Convention rights.

A council need not conduct a judicial investigation before deciding to sue. However, where its stated policy makes possession action depend on satisfaction of a significant further breach, it must have sufficient information rationally to reach that conclusion. A material lack of evidence about its decision-making process may make a public-law defence seriously arguable.

The council granted the appellant a non-secure tenancy of a flat under its homelessness functions. After complaints of nuisance and anti-social behaviour associated with the property, it served a notice to quit and later issued possession proceedings.

An earlier possession order was set aside on appeal and the matter was remitted. On rehearing, District Judge Eynon held that the appellant’s public-law defence, founded principally on the council’s letter of 2 June 2004, was not seriously arguable and made a summary possession order. The appellant appealed.

The central issue was whether the council’s stated policy and the sparse evidence of its decision-making process disclosed a seriously arguable public-law challenge to its decision to pursue possession.

1. Appeal allowed. Toulson LJ, with whom Aikens and Sullivan LJJ agreed, held that the district judge had been wrong to conclude that the public-law defence was not seriously arguable.

2. The governing principles were those in Kay, as modified by Doherty. The occupier’s challenge was not confined to formulaic factors. The question was whether, applying ordinary common-law public-law principles, the council’s decision was one no reasonable authority could have made. The court did not decide the proposed Convention point, which did not arise once the appeal succeeded.

3. The letter of 2 June 2004 was material. It stated that the council did not take tenancy action unless satisfied of a significant breach causing nuisance or annoyance. It was not an exclusive statement of every circumstance in which a tenancy might be ended. Nevertheless, given the delay between the notice to quit and the possession claim, it was seriously arguable that a reasonable council would not have issued proceedings without being satisfied of a significant further breach.

4. The council did not have to conduct the equivalent of a judicial investigation. The relevant question was whether it had done enough to satisfy itself of a significant further breach. Its evidence merely referred to ongoing complaints. It did not explain the consideration given to them, whether they came from one person, whether they ceased when that person was rehoused, or whether the appellant had been given an opportunity to answer them.

5. The court could not dismiss the defence on speculation that further information might have justified the council’s decision. The misconceived relief claimed in the Part 20 claim did not prevent the substantive public-law defence from proceeding.

• Court of Appeal (Civil Division) Allowed the appeal against the summary possession order: [2009] EWCA Civ 285.
• Hertford County Court District Judge Eynon made a summary order for possession on 3 November 2006. That order was reversed by this court.
• Hertford County Court His Honour Judge Everall QC had earlier allowed an appeal from a possession order made on 7 December 2005, set that order aside, and remitted the claim for rehearing.