Opening the floodgates

The recent Court of Appeal decision in Barber v Croydon LBC means that social housing providers – including local authorities – can expect increased use of public law defences in housing disputes, writes Kane Kirkbride. It also reaffirms the need for providers to know what their policies say and apply them accordingly.

The recent cases of Kay v Lambeth, Weaver and Doherty highlight for social housing providers the likelihood that public law defences are being relied on increasingly by tenants in housing disputes. The decision of the Court of Appeal in Barber v Croydon LBC on 11 February 2010 confirms this trend.

The first instance decision

Mr Barber, who suffered from learning difficulties and a personality disorder, had a non-secure tenancy of a flat granted to him by the London Borough of Croydon. He appealed against an immediate order for succession made against him following an incident in which he had threatened, spat at and kicked a caretaker.

The council’s policy on anti-social behaviour recognised the need for its ASB team to work in partnership with other internal and external statutory and voluntary agencies, including the social services department and the Integrated Mental Health Service.

The policy also set out three categories of anti-social behaviour and the council concluded that Mr Barber’s conduct fell within the most serious category (category 3) in respect of which legal action would almost always take place.

Prior to the original possession hearing the court ordered the parties to jointly instruct a psychiatric expert to report on whether Mr Barber had a disability for the purpose of the Disability Discrimination Act 1995. In her report, Dr Owen assessed that Mr Barber’s behaviour was related to his disability and that he would definitely not be able to cope with homelessness like an ordinary, average person.

At the possession hearing the council relied on evidence from its ASB team manager Mr Hunt that, despite the isolated nature of the incident, it remained proportionate to seek a possession order taking into account a number of factors, including the need to give caretakers and others employed on its estates the council’s full support where such incidents occur.

On this basis the court granted the council an immediate possession order against Mr Barber.

The appeal

On appeal, Mr Barber argued that the council had pressed ahead in breach of its own policy without consulting the Integrated Mental Health Service or considering whether anything less than possession would solve the problem and that its decision to seek possession of the flat was one which no reasonable person would consider justifiable.

The legal basis for this stemmed from the case of Kay v Lambeth LBC [2006] 2 AC 465 in which the House of Lords limited possible challenges to a local authority’s otherwise established right to possession to two types of cases or gateways:

(a) those in which exceptionally it was arguable that the law giving the right to possession was incompatible with Article 8, and

(b) cases where the decision to exercise the legal right to obtain possession was one which no reasonable person would consider justifiable.

In allowing Mr Barber’s appeal the Court of Appeal held that Mr Hunt’s decision was one which no housing authority, faced with the facts of the case, could reasonably have taken, i.e. that a gateway (b) defence had been established, in which case the possession action failed and should be dismissed.

Although the assault on the caretaker was serious and unacceptable, the local authority’s policy on vulnerable people was to explore alternative solutions which might lead to the prevention of anti-social behaviour in the future.

In the leading judgment Lord Justice Patten concluded that: “It seems to me that the real difficulty with the evidence and the judge’s treatment of it is that it takes no real account of the fact that Mr Barber’s behaviour on 22 May was clearly obsessive and irrational and, as Dr Owen explains, almost certainly linked to the personality disorder from which he suffers.

“In these circumstances, it was unreasonable for Mr Hunt to proceed without applying the council’s policy on vulnerable people set out earlier. This would have involved him or his department liaising with IMHS and social services to see whether or not any alternative strategy to seeking possession could be followed in order to prevent any repetition of the ASB by Mr Barber. A supervised ABC is one obvious alternative.”

Although there might be cases where the risk of future anti-social behaviour by such a tenant was unlikely to be countered by anything less than their removal, the requirement to consult the specialist agencies was likely to ensure that the recovery of possession was confined to cases where it was actually necessary to prevent a repetition of such behaviour.

Comment

In essence, this was a case in which a council’s own policy was used against it to successfully appeal a possession order. Whilst this may seem harsh given the facts of the case, it sends a clear signal to councils and other social housing providers that they must be aware of their policies and make sure that they apply them.

In particular, where vulnerable people are involved councils should ascertain, with input from specialised agencies, whether some alternative course of action to possession would prevent any further ASB.

Kane Kirkbride is a partner at Bevan Brittan. He can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it.