Southend-On-Sea Borough Council v Armour

An Article 8 proportionality decision in possession proceedings is a value judgment. An appellate court should not substitute its own assessment merely because it might have decided differently. It should interfere only if the trial judge’s conclusion was wrong or not open on the evidence.

In an introductory-tenancy case, sustained improvement after an initially poor start may be relevant to proportionality. It is capable of carrying weight because the probationary period tests whether the tenant can act responsibly. Exceptional circumstances are an outcome of the proportionality assessment, not a separate test.

The council sought possession from an introductory tenant after three incidents of abusive or alleged anti-social conduct shortly after the tenancy began. Following notice and a review, it issued proceedings.

By the trial, almost a year had passed without further behavioural problems. The Recorder found the original decision to commence proceedings reasonable, but held that an outright possession order had become disproportionate under Article 8. Cranston J dismissed the council’s first appeal.

The council’s second appeal challenged the proportionality assessment and sought to rely on fresh evidence said to undermine the tenant’s evidence and mental-health evidence. The central questions were whether the Recorder had applied an unduly lenient test and whether the fresh evidence should be admitted.

1. Appeal dismissed. Lewison LJ, with whom McFarlane and Sullivan LJJ agreed, held that the Recorder’s conclusion was open to her. Article 8 proportionality is a value judgment, rather than a bright-line legal test. An appellate court should not ask whether it would have reached the same conclusion. It should interfere only if the trial judge’s conclusion was wrong.

2. The statutory scheme for introductory tenancies under the Housing Act 1996 did not exclude an Article 8 review. The court could consider facts arising after proceedings began. The tenant’s vulnerability was relevant, though not determinative.

3. The Recorder was entitled to give weight to the tenant’s nearly year-long compliance after the initial incidents. In an introductory tenancy, the probationary period tests whether a tenant can become responsible. Improvement in conduct was therefore capable of being relevant to whether continued insistence on possession was proportionate. It did not confer an unconditional or indefinite right to remain, since any later breach after conversion to a secure tenancy could found fresh possession proceedings.

4. Birmingham City Council v Lloyd and the Hall appeal considered in London Borough of Hounslow v Powell did not require a different result. They concerned, respectively, a trespasser and persistent anti-social behaviour despite earlier interventions. Exceptional circumstances were not a separate legal test; they were the possible result of the proportionality assessment.

5. The proposed fresh evidence was not admitted. The alleged deception was neither admitted nor incontrovertibly established. The recanting evidence was unreliable, and the later psychiatric report was delayed and unlikely materially to affect the outcome. The court also stated, as guidance, that fresh evidence on a second appeal attracts a more stringent approach because the party has already had two opportunities to adduce it.

• Court of Appeal (Civil Division): dismissed the council’s second appeal in [2014] EWCA Civ 231.
• High Court, Queen’s Bench Division (Cranston J): dismissed the council’s first appeal from the Recorder.
• Recorder: held that, although the decision to commence proceedings had been reasonable, an outright possession order was disproportionate at trial.