Unsuccessful public law defence to possession proceedings


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The recent case of Turner v Enfield London Borough Council [2018] EWHC 1431 (QB) concerned Mrs Turner (the Appellant) who lived in a three bedroom council house which had originally been let to her father. When he died, his wife/the Appellant's mother succeeded to the tenancy. Therefore, there could be no further succession when she died.

The local authority served Notice to Quit on the Appellant and her son and then initiated possession proceedings. Both the Appellant and her son had numerous medical issues. After possession proceedings were commenced, the Appellant made an application for housing. Doctors said a move would be detrimental to the Appellant's wellbeing. As a result, the local authority made an offer of a ground floor flat with level access. However, on making the offer, the local authority failed to notify the Appellant of her right to review.

The Appellant therefore complained and the local authority made a fresh decision to make two direct offers of accommodation and informed the Appellant of her right to review. The Appellant refused the offer that was made to her and she defended the possession proceedings. Following a trial, order for possession was made.

The Appellant appealed the decision to the High Court arguing that:

  • the Trial Judge had been wrong to conclude that a possession order was proportionate for the purposes of Article 8;
  • the local authority's decision making procedure was also defective.

The High Court held that the Possession Order was both necessary and proportionate. The Appellant's medical issues (which were serious: by the time of her appeal the Appellant had been diagnosed with lung and bone cancer) and long residence would not defeat a possession claim where there was no right to succession. The judge had not misunderstood the cases of Thurrock Borough Council v West [2012] EWCA Civ 1435 and Holley v London Borough of Hillingdon [2016] EWCA Civ 1052 (medical issues together with lengthy residence will generally not be enough to defeat a claim for possession). Even though the judge had accepted that this was a seriously arguable case, the judge had gone on to conduct a balancing exercise following which the decision to grant possession had then been made. 

Insofar as the decision making process was concerned, it was held that there had been no breach of natural justice as the local authority had made a fresh decision after the first one that the Appellant had complained about.

This case primarily demonstrates just how hard it is for an Article 8/proportionality defence to succeed and how high the bar has been set by the appeal court.

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