Davies v Hertfordshire County Council

The Court of Appeal considered whether a public authority's failure to have regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004 ("section 11") can be relied upon as a defence to possession proceedings brought by that authority. The court held that, in principle, a breach of the section 11 duty can be raised as a defence in possession proceedings even where the occupier has no private law right to remain. The decision surveyed authorities on the relationship between public law challenges and private possession claims (including Wandsworth v Winder, Doherty, Pinnock and Mohamoud) and concluded that the county court can determine such issues in possession proceedings.

On the facts the appellant had been a service occupier whose licence ended on dismissal and therefore had no private law right to remain. The trial judge had found that the respondent breached section 11 when it served the notice to quit but treated section 11 as unable, in principle, to provide a defence to possession; the Court of Appeal held that that statement of principle was incorrect. Nevertheless the appeal was dismissed because, as a matter of fact, any breach of section 11 would not have affected the outcome: there was no material showing that consideration of the children's welfare at the time would have produced a different result and nothing in the pleadings or evidence supported the contention that section 11 would defeat the possession claim. The court also treated the Equality Act 2010 point as theoretical on the facts.

Background and parties: The appellant was the resident school caretaker occupying a bungalow on the school site pursuant to a service occupancy. The respondent owned the bungalow and, after the appellant was dismissed for gross misconduct, served a notice to quit. Possession proceedings followed.

Procedural posture: The claim was transferred to the High Court and tried before Elisabeth Laing J, who gave judgment for the respondent and made an order for possession ([2017] EWHC 1488 (QB)). Permission to appeal to the Court of Appeal was limited to a single ground: whether the judge erred in law in deciding that failure to comply with duties under section 11 of the Children Act 2004 and section 149 of the Equality Act 2010 could not provide a defence to the possession claim.

Nature of the claim/application: The appellant defended the possession claim on public law grounds, pleading that service of the notice to quit was unlawful in a public law sense because the respondent had not had regard to article 8 ECHR, the appellant's disability and duties under the Equality Act 2010, and the best interests of the children under section 11 of the Children Act 2004.

Issues framed: (i) Whether a breach of the section 11 duty can in principle supply a defence to possession proceedings where the occupier lacks a private law right to remain; (ii) whether the trial judge was correct to treat the section 149 Equality Act issue as theoretical; and (iii) if section 11 can in principle be a defence, whether on the facts the breach (as found by the trial judge) would have altered the outcome.

Court’s reasoning: The court reviewed authorities on the intersection of public law and possession proceedings (including Wandsworth v Winder, Doherty, Pinnock, Mullen and Mohamoud) and explained that the county court has power to assess proportionality and decide factual disputes relating to Convention and statutory duties when determining possession claims. The court concluded that there is no principled basis to treat a section 11 defence differently from an article 8 defence: section 11 applies to decisions which are functions leaving room for consideration of children’s welfare and may therefore, in principle, be raised in possession proceedings.

However, the court held that on the facts of this case any breach of section 11 had no bearing on the substantive question whether possession should be ordered. The appellant had not particularised how consideration of the children’s welfare would have changed the decision and the evidence did not show unusual or compelling circumstances that would outweigh the respondent’s property rights. The panel therefore dismissed the appeal and refused to remit the matter for rehearing.

Wider context: The court noted that the Equality Act 2010 point was theoretical on these facts and that matters concerning the family’s housing needs should properly be addressed under the homelessness and housing duties of the local housing authority.

Appeal dismissed. The Court of Appeal held that, in principle, a breach of the section 11 duty (Children Act 2004) can be relied upon as a defence to possession proceedings even where the occupier has no private law right to remain, but on the facts any breach found by the trial judge would not have affected the outcome and so the possession order was upheld.

Appeal from the High Court of Justice (Queen's Bench Division), Elisabeth Laing J, judgment 21 June 2017 ([2017] EWHC 1488 (QB)). Permission to appeal granted by Thirlwall LJ on 16 August 2017. Appeal heard in the Court of Appeal (Civil Division) and judgment handed down 6 March 2018 ([2018] EWCA Civ 379).