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Starter tenancy action vindicated by the Court of Appeal

The Court of Appeal today dismissed an appeal by Jack Haycraft, a tenant of West Kent Housing Association, against a possession order made at Dartford County Court on the 26 October 2010.  The original order had already been confirmed on appeal before HHJ Simpkiss on the 25 February 2011. 

Andrew Lane from Hardwicke, instructed by Batchelors Solicitors for West Kent Housing Association.

West Kent had issued mandatory possession proceedings; they had concluded Mr Haycraft had failed his probationary starter tenancy following complaints received as to his behaviour soon after he signed up for the tenancy in May 2009.  Mr Haycraft had argued that a possession order would violate his rights enshrined in Article 8 of the European Convention on Human Rights as it was not a proportionate response to the complaints.  He argued that as he disputed the allegations against him the court should decide the truth of them, not his landlord.

Mr Haycraft had used West Kent’s internal review procedure in 2009 and 2010 to argue that the planned possession claim would be unfair; he denied all the allegations.  However, the review panel hearing the matter was satisfied that the incidents had taken place and that it was reasonable and appropriate to seek to bring to an end Mr Haycraft’s tenancy.  A notice requiring possession (under s.21 Housing Act 1988) was served and proceedings commenced on the 23 June 2010.

Lord Neuberger, in delivering the main judgment of the Court, decided that the allegations had been properly investigated by West Kent on the review and found to be established in a perfectly well reasoned manner.  He found that HHJ Simpkiss had been entitled to conclude that there had not been a strong enough case put forward by Mr Haycraft to justify a full hearing on whether it would be proportionate to order him to give up possession of his flat.

Andy Lane, the barrister who acted for West Kent throughout the case including before the Court of Appeal, explained:

“Nobody disputes that it is important that a tenant’s right to respect for their home is protected by the Courts, and in my experience the social housing sector appreciates this as much as anyone.  But that protection must extend in anti-social behaviour cases, such as here, to the victims of such incidents and proper regard has to be had to a landlord’s genuine and reasonable attempts to consider such rights prior to taking possession proceedings.  This decision will encourage housing associations to pursue good internal review procedures and continue their starter tenancy schemes.”

West Kent’s solicitor in this appeal, Daniel Skinner (Head of Social Housing at the leading Housing firm, Batchelors), said:

“We act for many of the leading housing associations and this case is important for them because it shows that their starter tenancy schemes can be effective where they are not happy with a tenant’s conduct.  Cases can be won without having to face the time and expense of lengthy trials even if the tenant disputes the allegations. The Article 8 defence is over-used and not always dealt with properly by the courts; we would hope that this decision will encourage Courts to identify those minority of cases early where they should fully investigate the question of proportionality, as opposed to the much greater number where they can be dealt with on a summary basis”

Deborah White, West Kent’s Housing & Communities Director, commented:

“West Kent Housing Association does not take possession action lightly but we have responsibilities to all our tenants. We ensure that tenants in Mr Haycraft’s position have a fair and proper opportunity to put forward their case and we are particularly pleased that the Court of Appeal confirmed that we did so in this case. This case has taken some time through the court system, and we are satisfied we can now continue with the possession action, giving the other tenants the opportunity to live in their homes and  send a clear message that we will not accept serious anti-social behaviour and harassment”

Contact Details

Andy Lane: +44 (0)20 7691 0299

Daniel Skinner: +44 (0)20 8768 7068

Deborah White: +44 (0)1732 749400

Background Information

Starter Tenancies: Introductory tenancies were introduced under Part V of the Housing Act 1996 but are only available to local housing authorities and housing action trusts.  In 1999 the Housing Corporation (as was) gave authority to housing associations to use starter tenancies (i.e. assured shorthold tenancies) which operate along similar lines to introductory tenancies.  In both there is a probationary period (usually up to 12 months) at the end of which either security of tenure is given to the tenant, by way of a secure tenancy under the 1996 Act or an assured tenancy for starter tenants,  Notice may be served with a view to proceedings being issued for the recovery of the demised premises because of some behaviour in respect of the letting.  As an assured shorthold tenancy, the landlord can seek to obtain possession of properties let under such agreements by service of a section 21 notice requiring possession.

Article 8: This is part of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as set out in the Human Rights Act 1998, and provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.” It is not an unqualified right however and the second paragraph explain this as follows “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Pinnock:  Lord Neuberger delivered the main judgment in Manchester City Council v Pinnock [2010] UKSC 45 and explained that the question to ask in possession cases where the Article 8 defence was raised was “whether the eviction is a proportionate means of achieving a legitimate aim”.

For a copy of the judgment please contact Senior Practice Manager Daniel Kemp on daniel.kemp@hardwicke.co.uk