O'Connell v Viridian Housing

In possession proceedings based on the mandatory rent-arrears ground, an adjournment to enable a tenant to reduce arrears is available only in exceptional circumstances. Housing-benefit difficulties, without more, do not satisfy that threshold. Article 8 and disability-related arguments require an evidential foundation showing a real prospect of success. Where the first-instance judge has considered the proposed human-rights and equality arguments and no material procedural error is shown, an appellate court will not interfere merely because legal representation was limited at the hearing.

The claimant landlord obtained an outright possession order in the Wandsworth County Court under ground 8 of Schedule 2 to the Housing Act 1988, together with judgment for rent arrears and costs. The defendant sought permission to appeal and, if permission were granted, an appeal. She argued that the county court judge should have adjourned the possession hearing to allow informed legal representation and investigation of disability, public-law, equality and Article 8 arguments. She also relied on an earlier consent order and a decision of Hedley J in the same litigation.

The central issues were whether there was a real prospect that the refusal to adjourn was wrong, and whether any material procedural irregularity had occurred.

1. The application for permission to appeal was dismissed. The defendant had not shown a real prospect of establishing that the county court judge was wrong or that there had been a material procedural error.
2. The power to adjourn a possession hearing so that a tenant may reduce arrears below the ground 8 threshold is exercisable only in exceptional circumstances. The non-receipt or maladministration of housing benefit is not, by itself, exceptional: the court applied the principle stated in North British Housing Association v Matthews [2004] EWCA Civ 173.
3. The court also took account of the guidance that the threshold for a landlord to obtain possession is low and that the facts must be exceptional before an occupier has a real prospect of relying successfully on Article 8, as stated in Corby v West Kent Housing Association [2012] EWCA Civ 276.
4. The proposed Equality Act and human-rights arguments had not been supported by evidence capable of showing a seriously arguable connection between the defendant’s disability and the arrears accrued in 2011. The county court judge had considered disability and Article 8 arguments and had considered whether an adjournment was justified.
5. The absence of the earlier consent order was immaterial. There was no dispute that the defendant owned another property and had neither moved into it nor sold it. The earlier decision of Hedley J was likewise immaterial because it arose on materially different facts and concerned the same litigation.

The possession order and associated monetary order therefore remained undisturbed.

• High Court (Queen's Bench Division): application for permission to appeal dismissed. The order of HHJ Knowles made at Wandsworth County Court on 7 December 2011 remained in force.