The recent decision in the case of Eastlands Homes v Whyte ([2010] EWHC 695) demonstrates how public law defences are being used to delay and prevent possession orders against starter tenancies.
The facts of Eastlands Homes v Whyte are as follows:-
The tenant was granted a starter tenancy in 2005. Due to rent arrears, possession proceedings began and the Landlord extended the starter tenancy by 6 months. The tenant subsequently cleared her arrears so the warrant for possession that had been issued was never executed.
A second starter tenancy was granted in October 2007. In September 2008 the landlord extended for a further 6 months due to rent arrears and unspecified broken agreements.
In February 2009 the tenant’s daughter entered into an Acceptable Behaviour Agreement in connection with anti-social behaviour. A s.21 notice was again served on the tenant and a letter was sent stating that her tenancy had been reviewed and that an assured tenancy would not be offered due to broken agreements to clear rent arrears and because of anti social behaviour.
The tenant sent in a written appeal. In advance of the appeal the tenant was sent a case summary and the complaints policy. The appeal panel considered a written report, raised questions and up to date rent information was provided. It was agreed that the anti-social behaviour could not be properly evidenced and should not therefore be a consideration but that the tenancy should still be terminated. The tenant was sent a letter notifying her of the decision of the appeal which did not set out reasons. The decision letter stated that a warrant for possession would be applied for in court. However, the landlord instead embarked on accelerated proceedings based on the s. 21 notice served in February 2009 relying on rent arrears and anti-social behaviour, rather than the amended grounds from the appeals panel. The complaints policy did refer to a second appeal but this was not actually available.
Decision
The tenant argued that the decision to seek possession was unlawful, procedurally unfair, unreasonable and disproportionate. The court considered this public law defence and took the stance that it was bound by the decision in the Weaver case and that Eastlands Homes should be regarded as a public authority.
The High Court held that the Claimant had unlawfully exercised its powers because it had:
(i) failed to supply written material in advance of the appeal panel to the Tenant;
(ii) considered wider issues not set out in case summary; and
(iii) failed to consider its own rent arrears policy and was not referring to the one in force at the time the s.21 notice was served.
It also took into account the fact that a second appeal was referred to but not actually available – in isolation this would not have been fatal but it was a factor when taken together with the other failings. The Court also commented that a letter which failed to give reasons (when the minutes of the panel were sent with it) did not prejudice the tenant in any way.
Permission to appeal was granted but it is not yet clear if an appeal will be pursued.
Impact
This case highlights further the importance of Housing Associations following policy documents and ensuring their decision making is in accordance with their published policies.
In addition internal appeal processes need to be fair.
What do you need to do?
- Review your starter tenancy appeals process with the “failings” identified in this case in mind;
- Review your policy and procedure. Ensure references to second appeals or the Ombudsman are drafted very carefully;
- Consider training for your offices and board members who may sit on appeal panels.
If you would like more information or advice please contact Helen Tucker on Helen.Tucker@anthonycollins.com or 0121 212 7459.