Holmes v Westminster City Council

Article 8 may require a court to assess the proportionality of making a possession order against a non-secure tenant housed under the homelessness provisions, even where domestic law gives the authority an unqualified right to possession.

Possession claims should ordinarily be dealt with summarily under CPR Part 55. An adjournment or fact-finding hearing is required only where the tenant raises a seriously arguable proportionality issue or substantial grounds for challenging a factual premise material to the authority’s decision. The tenant need not establish criminal guilt or civil liability, but cogent evidence is required to show unlawfulness, breach of policy or breach of statutory duty.

Westminster City Council granted Mr Brian Holmes a non-secure tenancy under its homelessness duties. After the Council withdrew an earlier decision discharging its duty, it revived possession proceedings following an alleged assault on housing officers.

The Central London County Court struck out Mr Holmes’s defence and made a possession order summarily. The appeal concerned whether the Recorder should have adjourned the claim for a trial, whether Article 8 proportionality and public-law arguments were properly considered, and whether the defence disclosed an arguable breach of policy or statutory duty.

1. Appeal dismissed. The Recorder was entitled to determine the possession claim summarily under CPR Part 55.
2. A non-secure tenancy granted under Part VII of the Housing Act 1996 may be determined by notice to quit. The authority need not establish the statutory grounds applicable to secure tenancies, subject to the court’s obligations under Article 8.
3. Following Manchester City Council v Pinnock [2010] UKSC 45 and Hounslow London Borough Council v Powell [2011] UKSC 8, the court has power, where necessary, to assess proportionality and resolve relevant factual disputes. The former “highly exceptional” formulation is unsafe and unhelpful as a guide, although the threshold for raising an arguable proportionality defence remains high.
4. In the ordinary case, the authority’s ownership rights and its duties to allocate and manage housing stock provide powerful support for possession. Its reasons need not ordinarily be pleaded or proved. Where possession is sought solely because of alleged tenant behaviour, however, the tenant must have a fair opportunity to challenge a material factual premise, and substantial grounds are required before summary determination is avoided.
5. The alleged conduct did not require a trial to determine criminal guilt or civil liability. Conduct may properly be treated as unacceptable where the authority has reasonable grounds for its view. The Council’s duty to protect its staff was a legitimate consideration in the proportionality assessment.
6. No cogent evidence established breach of the Council’s anti-social behaviour policy or of s.49A of the Disability Discrimination Act 1995. The Recorder made no material error in concluding that the defence disclosed no reasonable grounds for defending the claim. The ordinary summary judgment regime under CPR Part 24 did not apply; even if CPR 3.4 applied, the defence was bound to fail.

1. High Court (Queen’s Bench Division): appeal against the Central London County Court possession order and strike-out order dismissed.
2. Central London County Court: on 18 November 2010, Mr Recorder Widdup struck out the defence and granted possession summarily.