Corby Borough Council v Scott

A residential occupier who has no domestic law defence to a public authority’s possession claim may invoke article 8 proportionality. The court must, however, dismiss the argument summarily unless the occupier shows substantial grounds for advancing it.

The threshold is high and will be crossed in only a small proportion of cases. Exceptionality describes the likely outcome rather than supplying the legal test. The court must consider only matters relevant to respect for the particular home and must not allow sympathy to lower the threshold. An apparently exceptional personal event carries no weight unless it bears materially on the consequences or proportionality of eviction.

These conjoined appeals concerned possession claims by providers of public housing against occupiers who had no defence under domestic law but relied on article 8 of the European Convention on Human Rights.

In the first appeal, Northampton County Court refused Corby Borough Council possession of a flat let to Nicholle Scott under an introductory tenancy. The judge relied principally on a serious assault upon the tenant and the last-minute payment of her rent arrears. The Council appealed.

In the second appeal, Dartford County Court upheld an order giving West Kent Housing Association possession of Jack Haycraft’s home under a starter tenancy. The decision to terminate followed a reviewed allegation of indecent exposure and complaints of nuisance. Mr Haycraft appealed.

The central issue was whether either occupier had shown sufficiently substantial grounds for an arguable article 8 proportionality case to justify a full hearing.

1. The Council’s appeal was allowed and Mr Haycraft’s appeal was dismissed. The Supreme Court’s decisions in Manchester City Council v Pinnock [2010] UKSC 45 and Hounslow London Borough Council v Powell [2011] UKSC 8 establish that an occupier without contractual or statutory protection may invoke article 8. The occupier must nevertheless show substantial grounds for a proportionality argument. The high threshold will be crossed in only a small proportion of cases.

2. Exceptionality is a measure of the outcome, not the governing test. It may provide a useful cross-check after a preliminary conclusion that article 8 can be invoked. Concentrating on exceptionality may distract the court from the prior requirement that the circumstances relied upon must be relevant to the proportionality of eviction.

3. Ms Scott’s case came nowhere near the required threshold. The murderous assault upon her was shocking but had no demonstrated connection with the possession claim or the effect of eviction upon her. Clearing rent arrears immediately before trial, particularly through payments by relatives, ordinarily carries little weight. Her pleaded case was hopeless in law and should not have proceeded to trial.

4. Mr Haycraft’s case was stronger but still insufficient to justify a full hearing. The indecent-exposure allegation had been investigated at a hearing and upheld by a review panel through clear reasons. His subsequent conduct, health, family circumstances and possible homelessness did not cumulatively establish a sufficiently strong proportionality case. Article 8 protects respect for the particular home rather than conferring a general right to be provided with a home. The prospect of rehousing generally weighs against, rather than supports, resistance to possession.

5. A starter tenancy was materially equivalent to an introductory tenancy for this purpose. Each tests whether an occupier should acquire security of tenure; neither initially confers such security; and each provides notice, judicial possession proceedings and an opportunity to seek review. The Supreme Court’s stringent approach therefore applied to both.

6. Courts should rigorously exclude irrelevant considerations and should consider at an early stage, normally on the pleaded case, whether the proportionality argument is seriously arguable. A case incapable of success should not consume further time, expense or delay the landlord’s entitlement. The court declined to prescribe a uniform procedure, suggesting that broader procedural provision was a matter for the Civil Procedure Rules Committee.

• Court of Appeal (Civil Division): In Corby Borough Council v Scott [2012] EWCA Civ 276, allowed the Council’s appeal and held that an order for possession should have been made. In the conjoined Haycraft appeal, dismissed the occupier’s appeal.
• Northampton County Court: Her Honour Judge Hampton accepted that the Council was entitled to possession under domestic law but refused possession against Ms Scott on article 8 grounds.
• Dartford County Court: His Honour Judge Simpkiss dismissed Mr Haycraft’s appeal from Deputy District Judge Clough’s possession order, while substituting a later possession date.