Fareham Borough Council v Miller

A local authority is ordinarily entitled to possession after a non-secure tenancy has been validly determined. An occupier may nevertheless raise an Article 8 proportionality defence. The defence must disclose a seriously arguable and exceptional case before a full review is required.

Great weight is given to the authority’s duties to manage housing for the community. Personal vulnerability will not normally outweigh serious and continuing harm caused by the use of the premises to neighbouring tenants. A notice to quit cannot be revoked after service. Continued occupation and acceptance of payments create a new tenancy only if the landlord objectively intended that result.

The Council provided Mr Miller, a homeless person in priority need, with a non-secure tenancy under Part VII of the Housing Act 1985. While he was repeatedly imprisoned, people to whom he had given keys used the flat for drug-related and seriously anti-social conduct which affected neighbouring residents.

The Council served a notice to quit and sought possession. Mr Recorder Wood dismissed the claim. He held that, after the Council had agreed to give Mr Miller another chance, the notice had effectively been revoked or the tenancy reinstated. He also considered possession unreasonable and disproportionate.

The Council appealed. The central issues were whether the notice had been undone or a new tenancy created, and whether the decision to continue the possession claim was vulnerable on Wednesbury or Article 8 grounds.

1. Appeal allowed. The Council was entitled to possession. The Recorder was right that the Council had been justified in serving the notice to quit. The flat’s use, including by persons who obtained keys through Mr Miller, caused grave and persistent harm to neighbours. The Council was entitled to conclude that Mr Miller could not prevent recurrence.

2. The Recorder erred in treating the Council’s decision on 19 May 2011 to give Mr Miller another chance as revoking the notice. A notice to quit, once served, has determined the tenancy and cannot be revoked: Tayleur v Wildin (1868) LR 3 Ex 303. Any later security depended on a new tenancy. Whether one arose turned on the Council’s objectively manifested intention when accepting payments. Its conditional decision to defer possession, followed by its decision to continue proceedings when Mr Miller reoffended, could not support an inference of a new tenancy. Mr Miller was a tolerated trespasser.

3. Manchester CC v Pinnock [2010] UKSC 45 and Hounslow LBC v Powell [2011] UKSC 8 permit an Article 8 proportionality defence in a non-secure tenancy case. But the tenant must first show a seriously arguable case. The ordinary and weighty legitimate aims are the authority’s ownership rights and its duty to allocate and manage housing stock for the community.

4. Mr Miller did not cross that high threshold. His addiction and vulnerability required consideration, but did not outweigh the need to protect neighbours and regain control of premises repeatedly used for harmful conduct. Alternative measures, including anti-social behaviour injunctions, would not effectively contain the problem. Nor was the decision one which no reasonable authority could have made. The court therefore made an order for possession.

• Court of Appeal (Civil Division): Allowed the Council’s appeal and made an order for possession: [2013] EWCA Civ 159.
• Portsmouth County Court: Mr Recorder Wood dismissed the Council’s possession claim on 3 August 2012, holding that the notice to quit had effectively been undone and that possession was unreasonable and disproportionate.