Trinity House of Deptford Strond v Prescott & Anor

The Rent Exception in the Public Health (Coronavirus) (Protection from Eviction) (England) Regulations 2021 requires both substantial rent arrears and a possession order made wholly or partly on specified rent-arrears grounds. A possession order made under section 21 of the Housing Act 1988 does not qualify merely because substantial arrears existed when the order was made. Any difference between the two classes of landlord was justified by the public-health scheme. Section 3 of the Human Rights Act 1998 could not be used to add section 21 cases to the exception because that would remove an express statutory requirement and alter the thrust of the Regulations.

The claimant landlord obtained a mandatory possession order under section 21 of the Housing Act 1988, together with judgment for substantial rent arrears. The defendants remained in occupation. The possession order was transferred from the County Court to the High Court for enforcement, and a writ of possession was issued.

The claimant applied for a declaration that the Rent Exception in the January Regulations permitted enforcement despite the prohibition on evictions. It argued that the exception should be read, compatibly with A1P1 and Article 14 of the Convention, to include possession orders made under section 21 where substantial arrears existed. The central issues were the proper forum and procedure, the construction of the Rent Exception, and whether section 3 of the Human Rights Act 1998 permitted the proposed reading.

1. Procedure. The High Court was the appropriate court to decide whether the court was satisfied that an exception applied. Following transfer for enforcement, the possession order was treated as an order of the High Court for enforcement purposes under section 42(5) of the County Courts Act 1984. CPR 23.2(5) also directed applications concerning enforcement to the court dealing with enforcement. The appropriate application was a Part 23 application on notice, reflecting CPR 23.3 and 23.4. The court was deciding whether to make a declaration, not granting permission to execute the writ.
2. Construction. On the ordinary meaning of regulation 2(3), the Rent Exception has two cumulative requirements: substantial arrears of at least six months’ rent, and a notice, writ or warrant relating to a possession order made wholly or partly on specified rent-arrears grounds. The claimant’s order was made under section 21 and did not satisfy the second requirement.
3. Convention analysis. The court adopted a four-stage approach under section 3 of the Human Rights Act 1998: identify an engaged Convention right; determine whether there is relevant discrimination; assess justification; and, if necessary, ask whether a compatible reading is possible without contradicting the legislation’s grain or thrust. The court assumed, without deciding, that the distinction engaged Article 14 taken with A1P1.
4. Justification. The distinction pursued a legitimate aim. Possession orders based on rent arrears involved a judicial determination that non-payment justified possession and were considered particularly egregious when combined with continuing substantial arrears. Section 21 orders had no necessary connection with arrears. The distinction was rationally connected to the aim, no lesser measure was sensibly available, and it struck a fair balance, including in light of tenants’ Article 8 rights.
5. Section 3 limit and outcome. Even if the distinction were unjustified, section 3 could not be used to add section 21 cases to regulation 2(3)(b)(ii). That would widen an exception to a general prohibition, remove the express rent-arrears limb, make a major change to a short emergency instrument, and intrude into a legislative choice. The application was refused and no declaration was made.