UK: Human Rights & Possession

Last Updated: 13 December 2012
Article by Mike Lewis

A landmark decision has been reached in the case of Southend-on-Sea Borough Council v Armour [2012] EWHC 3361 (QB) on the impact of a tenant's human rights on a possession claim for a property subject to an introductory tenancy.

Under Section 125 Housing Act 1996, an introductory tenancy is one which is granted for 12 months, and if it is not terminated within this time, it is converted into a standard Local Authority tenancy on the same terms. Mr Armour was granted an introductory tenancy by Southend Borough Council in January 2011. However, within two months, three complaints had been made against him for antisocial / abusive behaviour towards a neighbour, contractors and also a member of council staff. This breach of the terms of the tenancy caused the council to initiate possession proceedings against him.

Due to various adjournments at the request of the tenant, the claim was not heard until March 2012. By this point, Mr Armour had been fully compliant with the terms of the tenancy for almost a year and there had been no further complaints made against him. Also during this intervening period, Mr Armour was diagnosed with Asperger's syndrome and chronic depression.

This issue was considered by Recorder Davies who had to determine whether Mr Armour should be evicted from the property so that the council could obtain possession. However, under Article 8 of the European Convention on Human Rights, the Court had to consider the tenant's right to his private and family life. Therefore, any interference with this had to be necessary and proportionate.

In arriving at her decision, the Recorder considered evidence from Mr Armour's probation officer and his youth worker (both of whom had known him for over 15 years); medical evidence that eviction would have a detrimental effect on his health; and also the effect it would have on his teenage daughter who lived with him (although this was stated not to be an important factor).

The Recorder found that, although the council had been completely justified in seeking possession at the original time and no blame was due to them for this, an eviction would be a breach of Mr Armour's right to private and family life under Article 8 of the Convention. His circumstances had significantly changed and so it would no longer be a necessary and proportionate action. She did emphasise, however, that the tenant had a continuing obligation and duty to comply with all terms of the tenancy in future, as any breach would be likely to lead to the council seeking possession once more.

On appeal to the High Court, the council argued that Mr Armour's compliance with the terms of the tenancy was not relevant as it had occurred after the claim for possession had been made. They also argued that the Recorder should have approached the decision on the facts as they would have been at the date of the original hearing, otherwise Mr Armour would gain an unfair advantage from the delays.

In this case, Mr Justice Cranston found that good behaviour was relevant when determining proportionality (applying Manchester City Council v Pinnock [2011] 2 AC 104). He also stated that when a proportionality review was conducted, all evidence available at the time of the hearing had to be considered. On this basis, he dismissed the appeal. The Judge said that the Recorder had set a benchmark for all future cases and had made a 'model' judgment.

Some commentators are concerned, however, that a precedent such as this will lead to many defendants alleging exaggerated abuse of their human rights in order to avoid legitimate possession orders. The case will now be considered by the Court of Appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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