Lawal & Anor v Circle 33 Housing Trust

A public social landlord is subject to the same Article 8 proportionality approach as a local housing authority. Its proper management and allocation of scarce social housing normally provide a strong basis for possession. The occupier bears the evidential burden of showing that eviction would be disproportionate.

Article 8 principally protects respect for the occupier’s particular home. It does not create a general entitlement to alternative housing. A former secure tenant’s failure to satisfy the statutory tenant condition does not itself exclude an Article 8 proportionality defence.

A final refusal of permission to appeal may be re-opened under CPR 52.17 only where its stringent conditions are met. A court cannot postpone possession beyond the limit in section 89(1) of the Housing Act 1980 by reading down the provision under the Human Rights Act 1998.

Circle 33 Housing Trust, a social landlord, obtained possession of a four-bedroom property after Judge May held that Mr Lawal no longer occupied it as his only or principal home and had lost secure-tenant status. Although the appellants raised Article 8 in closing submissions, the judgment did not address it.

After permission to appeal was refused, the appellants applied to set aside the possession order and to stay or suspend the warrant. Judge Mitchell dismissed that application. He found eviction proportionate and considered that section 89(1) of the Housing Act 1980 prevented postponement after six weeks. The appellants appealed and also sought to re-open the earlier refusal of permission under CPR 52.17.

The central issues were whether the earlier appeal should be re-opened and whether eviction by a social landlord would breach Article 8.

1. The CPR 52.17 application and the appeal were dismissed. The stringent jurisdiction to re-open a final appeal determination requires real injustice, exceptional circumstances and no alternative effective remedy. Its exercise also requires an injustice grave enough to outweigh the public interest in finality. Although Judge May ought to have addressed the Article 8 point, Judge Mitchell later conducted a full merits assessment with legal representation and further evidence. There was therefore no real injustice in refusing a further opportunity to argue the same issue.

2. Judge Mitchell correctly held that section 89(1) of the Housing Act 1980 prevented the county court from staying or suspending possession after the statutory six-week maximum. The provision could not be read down under section 3(1) of the Human Rights Act 1998 to permit a longer postponement. Neither the county court nor, in the absence of the required notice to the Crown, this court could provide a declaration of incompatibility.

3. Circle 33 Housing Trust was a public social landlord. The proportionality principles in Manchester City Council v Pinnock and LB Hounslow v Powell applied to it as they do to local authorities. Proper housing-stock management supplied a strong presumption that possession pursued a legitimate aim and was proportionate. The appellants bore the evidential burden of rebutting that presumption, which they did not discharge. The property was substantially under-occupied, and its return to the social-housing stock was a weighty consideration.

4. Article 8 is primarily concerned with respect for the occupier’s particular home, rather than a general right to be provided with another home. Judge Mitchell’s mistaken description of the appellants’ possible continuing status as licensees was immaterial. His conclusion that eviction was proportionate was justified.

5. Ordinarily an Article 8 defence should be raised during possession proceedings, especially at trial; raising it only at enforcement will almost always be abusive. This case was exceptional because the appellants did raise the point at trial, received no reasoned determination, and were directed while unrepresented to explore enforcement-stage procedures. Finally, the tenant condition in section 81 of the Housing Act 1985 did not displace an independent Article 8 proportionality defence.

• Court of Appeal (Civil Division) — dismissed the application to re-open the earlier refusal of permission to appeal and dismissed the appeal from Judge Mitchell’s order: [2014] EWCA Civ 1514.
• Clerkenwell and Shoreditch County Court — Judge Mitchell dismissed the appellants’ application to set aside the possession order and to prevent or suspend execution of the warrant for possession on 24 March 2014.
• Central London County Court — Judge May ordered possession on 25 July 2013 after finding that Mr Lawal had ceased to satisfy the secure-tenancy tenant condition.