Salford City Council v Mullen & Ors

A gateway (b) defence against possession by a public authority permits only conventional judicial review. It does not require the county court to decide for itself whether eviction is proportionate under Article 8.

The statutory scheme and its safeguards are central. A defence is available only in highly exceptional circumstances, where no reasonable authority could regard recovery of possession as justifiable. An introductory tenancy scheme excludes such a defence in county court possession proceedings. The tenant’s remedy is judicial review in the Administrative Court. A homeless occupier may raise the defence in the county court, but has no right to remain in a particular dwelling where suitable alternative accommodation or statutory review rights are available.

Five joined appeals concerned possession claims by local authorities against non-secure occupiers. Ms Powell and Mr Mushin occupied accommodation provided under the homelessness duties in Part VII of the Housing Act 1996. Mr Hall, Mr Frisby and Mr Mullen held introductory tenancies under the same Act.

The appeals raised the proper scope and venue of the public-law defence identified as gateway (b) in Kay and refined in Doherty. The court considered whether the county court could entertain that defence, whether the introductory-tenancy legislation excluded it, whether it allowed a full Article 8 proportionality review, and whether later decisions to continue possession proceedings could themselves be reviewed.

The appeal from McCombe J’s possession order against Mr Mullen, and the appeals arising from the county courts in the other four claims, were all dismissed.

1. All five appeals were dismissed. The court was bound by Kay and Doherty. Gateway (b) is a conventional public-law challenge to the authority’s decision to recover possession. It is not a full proportionality review under Article 8(2) of the Convention. The question is whether, in the statutory context, the decision was one which no reasonable person could consider justifiable.

2. In homelessness cases, the county court may in principle determine a gateway (b) defence. But the legislative framework, including the continuing duty under section 193 where it remains owed and the review and appeal machinery under sections 202 to 204 of the Housing Act 1996, means that only highly exceptional circumstances can make such a defence arguable. A homeless applicant has no entitlement to a particular dwelling. The authority will ordinarily be entitled to recover larger family accommodation from a person now requiring suitable single-person accommodation.

3. The introductory-tenancy regime has a different consequence. Sections 127 and 128 require the county court to make a possession order once the prescribed procedure has been followed. The court has no jurisdiction to conduct gateway (b) review in those proceedings. A seriously arguable public-law challenge must instead be pursued by judicial review in the Administrative Court, with an adjournment of the possession claim where appropriate.

4. Gateway (b) can address any decision connected with seeking possession which could be judicially reviewed. It is not confined to the original notice to quit. Material new facts may require an authority to decide whether to commence or continue proceedings. The authority need not, however, reverse a decision to terminate an introductory tenancy merely because the occupier says that earlier anti-social behaviour has improved.

5. Ms Powell’s and Mr Mushin’s circumstances were not highly exceptional. Mr Hall had no arguable challenge following the unchallenged review. The ruling in Mr Frisby’s case on the proper venue was correct. Mr Mullen’s appeal was necessarily dismissed. Manchester’s appeal in Mr Mushin’s case was dismissed because, on the concessions maintained on appeal, the trial judge was entitled to find that the notice to quit had been based on untested domestic-violence allegations.

• Court of Appeal (Civil Division): By [2010] EWCA Civ 336, dismissed the five joined appeals.
• High Court, Queen’s Bench Division, Manchester District Registry: McCombe J made a possession order against Mr Mullen on 12 January 2010.
• County Courts: Deputy District Judge Shelton made a possession order against Ms Powell; HHJ Spencer QC made a possession order against Mr Hall; District Judge Gailey struck out Mr Frisby’s gateway (b) defence and adjourned the question of judicial review; and HHJ Raynor QC dismissed Manchester’s claim against Mr Mushin.