The Society for Computers and Law (SCL) has introduced an Adjudication Scheme for IT Projects and Services.
Recap - What is an Article 8 Defence?
Where a tenant seeks to persuade the Court that eviction from their home would not be proportionate. The Court will be asked to take into consideration the tenant’s own personal circumstances and the effect that eviction would have on them. The Court balances that against the landlord’s ultimate aim of regaining possession of the Property in question.
The Courts Approach – What does the case law say?
The existing cases decided by the Court in relation to Article 8 challenges in mandatory possession proceedings have increasingly eroded away a tenant’s ability to argue such Defences. They are often raised in cases where the tenant may lack security of tenure – failed successors are an example of this and this is the issue that was considered in the Holley case.
The Holley Case - the Facts and Decision
Mr Holley’s grandmother held a tenancy of a 3 bed Property and when she passed away her husband succeeded to the tenancy. The husband passed away in 2012 leaving Mr Holley and his brother living at the Property. With the succession right having been “used” up by the husband, Hillingdon served a Notice to Quit and sought possession on the basis that Mr Holley had no right to succeed to the tenancy.
Mr Holley sought to rely on Article 8 to say it wasn’t proportionate to make a Possession Order against him based on, amongst other matters, the fact that he had lived at the Property for all of his life. The County Court Judge decided that this was not a seriously arguable defence and granted a Possession Order.
Mr Holley appealed to the Court of Appeal stating that (1) the Judge should have considered his length of occupation but also on the basis that (2) Hillingdon had the ability to use their discretion in their policy to allow a second succession and had not considered doing so.
The Court of Appeal did not agree with Mr Holley. They stated that the length of occupation on its own could not be sufficient to create a successful Article 8 Defence. It could be considered together with other relevant factors in a proportionality assessment but, because Parliament has lawfully excluded second successions and that provision was compatible with the European Convention on Human Rights, it was “of little consequence”.
The Court also declined to accept Mr Holley’s argument in relation to the discretion to allow a second succession. This public law challenge (rather than a Human Rights argument) suggesting that the decision not to allow him a second succession was unlawful failed. The Court had evidence before it that even if full consideration had been given to a second succession request, the decision would ultimately have been the same – it would not have been granted.
It’s difficult to see many situations, other than extreme vulnerability, where an Article 8 Defence will actually be successful in light of this and the many cases already decided. The clarification provided in the Holley case simply reinforces this. This does not stop the defence being raised and having to be argued however. Tenant advisors will no doubt instead continue leaning towards Equality Act Defences should the tenant suffer from a disability of any sort.
Holley is also helpful in that it confirms that if a landlord has made an error in making a decision e.g. by not fully following its policy, the Court can take into account evidence showing that even if the error had not been made, the outcome would have been the same.
For more information
Please contact Alex Loxton.
In our latest Company Secretary Update, we focus on the Queen’s Speech over Christmas and the recommendations and commitments in relation to housing.
So after two days of legal argument, the Supreme Court have now retired to reach their decision in the joined cases of Tomlinson-Blake v the Royal Mencap Society and Shannon v Rampersad.
Anthony Collins Solicitors has revealed details of its annual social impact, including advising on funding deals for building 19,603 new homes and setting up 90 new charities.
The United Kingdom Homecare Association (UKHCA) has announced its new calculation for the minimum price of homecare of £20.69 per hour (to be effective 1 April 2020).
A recent High Court case suggests that the Charity Commission is now more inclined to utilise its regulatory powers than ever before.
We are delighted to confirm that partner, Donna Holmes, has been appointed to the Panel of Guardians for Missing Persons Affairs from 1 February 2020.
Meningitis now are calling for corporate supporters as part of their New Year New You 2020 campaign - why not sign up and get a team together to take part in one of their events this year.
Recent data reports that the financial cost of clinical negligence claims runs to a total of £83bn, but what is the real cost of clinical negligence?
Would you know how to manage an escalating social media storm? Are you confident in your plans and policies for responding to, and managing, a prominent ‘scandal’ in your charity?
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.