Leon Glenister examines an important Court of Appeal ruling that upheld the dismissal of possession proceedings on human rights grounds.
In Southend-On-Sea Borough Council v Armour  EWCA Civ 231 Mr Armour lived with his 14-year-old daughter in a flat owned by Southend under an introductory tenancy. Mr Armour was accused of anti-social behaviour, including verbally abusing neighbours and contractors, and turning on the electricity when contractors were working causing one to suffer an electric shock.
The local authority issued a claim for possession. After two adjournments, by the time the matter came to a full hearing was 11 months after the alleged conduct.
At that hearing there was evidence from Mr Armour’s probation officer that he had recent good behaviour, medical evidence that the eviction would be detrimental to his health, and evidence that the possession order would have an effect on his daughter.
Mrs Recorder Davis found that the making of a possession order was no longer proportionate given Mr Armour had complied with the terms of his tenancy for almost a year. Mr Justice Cranston upheld that decision on appeal, and the local authority made a second appeal.
The Court of Appeal began by looking at the well-trodden territory of London Borough of Hounslow v Powell  UKSC 8, Thurrock Borough Council v West  EWCA Civ 1435 and Manchester City Council v Pinnock  UKSC 45.
A point fundamental to the decision of the Court of Appeal was the function of the appeal court. The local authority argued that “whether a given set of facts crosses the high threshold of giving rise to an article 8 defence is a question of law. There is no question of discretion involved”. Therefore, the argument went, the Court of Appeal could look at the facts and make up its own mind as to whether the legal test for article 8 was met.
Whilst Lewison LJ agreed “there was no question of discretion”, he held:
“the test which the courts must apply, whether described as proportionality or as deciding whether eviction is "necessary in a democratic society" is not, in my judgment, a bright line test. It is more in the nature of a value judgment. If a judge is required to apply a clear legal rule to a given set of facts, an appeal court can decide for itself whether that given set of facts measure up to the legal rule. But 'the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision': Re Grayan Building Services Ltd  Ch 241, 254 per Hoffmann LJ. In my judgment, this is the kind of decision in which an appeal court should be reluctant to reverse the value judgment of the trial judge.” (para 17)
With that in mind, the Court went on to consider the submission of the local authority that “compliance by the tenant with the terms of his tenancy cannot amount to the kind of exceptional circumstances that would justify a successful article 8 defence. Compliance with the terms of the tenancy ought to be regarded as the norm, not the exception.” (para 30)
Lewison LJ found this was a misdirected question as the “question is not whether the circumstances are exceptional because as the Supreme Court pointed out in Pinnock exceptionality is an outcome rather than a test”.
He differentiated the case of Leeds City Council v Hall (a case joined with Powell), which dealt with anti-social behaviour on an introductory tenancy, on the basis that anti-social behaviour in that case had persisted for the best part of the year, less draconian action had been attempted, and there had already been a review which led to the withdrawal of a notice seeking possession.
The judge went on to look at the local authority’s submission directly: “Where, as here, the tenant under an introductory tenancy gets off to a shaky start, but mends his ways for almost all of the one year period, I consider that that improvement in behaviour is capable of being a factor in deciding whether it is disproportionate for the landlord to continue to insist on recovering possession. What weight to give it is a question for the trial judge. In my judgment, on the material that was before the Recorder she was entitled to come to the conclusion that by the trial date, it had become disproportionate to make a possession order. Other judges might have come to a different conclusion, but that does not mean that the Recorder's conclusion in our case was wrong.” (para 30)
The article 8 backdrop
This is the latest in a line of case law on the article 8 proportionality defence to possession proceedings.
In brief, a local authority or housing association may not interfere with an individual’s right to respect for his private or family life, or his home, unless it can show that such interference is both (1) in accordance with the law, and (2) necessary in a democratic society.
The watershed in the Article 8 jurisprudence was Manchester City Council v Pinnock  UKSC 45 where it was accepted the personal circumstances of a tenant may make a possession order disproportionate to that tenant’s article 8(1) right.
However the case law has been clear that it is only in exceptional cases will that be the case. Lord Hope in Hounslow v Powell  UKSC stated that the court will only have to even consider the defence where “the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable”.
Armour remains one of two reported cases in which there has been a successful article 8 defence. The other is Leicester City Council v Shearer  EWCA Civ 1467; in that case the Court found the local authority had, in effect, misled the tenant as to the housing advice she was provided. The Court of Appeal decision focussed more on general public law principles than proportionality and therefore is much less significant than Armour.
There are two notable points from Armour. Firstly, it is noteworthy the Court of Appeal upheld a decision that to make a possession order was a breach of the occupier’s article 8 right. Secondly, it emphasised the nature of the proportionality test as a “value judgment”, which an appeal court would be slow to interfere with.
The effect of this in the County Court threatens to be far from slight.
If an article 8 defence is raised by an occupier, then the Court should assess the question summarily to determine if there is any merit in spending more time on the matter. That is often done at a five minute first hearing.
At present, an occupier can do little more than plead the facts which they say are relevant. Now armed with Armour, Courts may look at the tenant’s case more favourably and may be minded to hear oral evidence. This can occur even on possession claims based on mandatory grounds. Although defences may not be ultimately successful, occupiers are more likely to successfully argue hearings should be adjourned to a longer hearing thus delaying a possession order.
And if anti-social behaviour is alleged, an occupier may be able to directly benefit the delay occasioned as, on the basis of Armour, they may be able to demonstrate good behaviour prior to the final hearing!
In addition, the Court of Appeal accepted that different judges may come to different conclusions. It would seem far easier on that basis to argue a county court judge, whilst required to have regard to the case law, has far more discretion than previously thought.