Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
In Ahern v Southern Housing Group Ltd  EWCA Civ 1934, Mr Ahern had opposed Southern HG’s claim for possession against him on ‘public law’ grounds – by arguing that the s21 Notice was invalid because of alleged failures by the landlord to follow its own policy. Many social landlords will be familiar with the complexities and delays which can result from such public law defences being raised in claims involving starter tenancies.
This judgment is welcome for social landlords. It makes clear that when assessing landlords’ compliance with their policies a ‘purposive and pragmatic’ approach should be taken. In so doing, not every departure from the wording or requirements of policy will involve an error of law which would render a s21 notice invalid.
Mr Ahern took up an assured shorthold ‘starter’ tenancy of a flat in Canterbury in April 2012. Mr Ahern, who had a history of alcoholism, soon started behaving in an anti-social and lewd manner which greatly upset his neighbours. A complaint was made about his behaviour by the Parish Council in May 2012 and further complaints were made in the following months concerning loud music, criminal damage, swearing and threatening behaviour. Mr Ahern was convicted of harassing his neighbour and he received a community order as well as support for his alcoholism. The probationary period of his tenancy was extended by six months, during which time he continued to behave anti-socially. Having reviewed his case twice, Southern HG decided to serve him with a s21 Notice Requiring Possession and – following an internal appeal with which Mr Ahern engaged – it brought an accelerated claim for possession.
The accelerated possession claim
Mr Ahern defended the claim by raising the public law argument that Southern HG had failed to comply with its policies on starter tenancies, anti-social behaviour and vulnerable tenants. In particular he alleged that Southern HG had: failed to address his support needs; failed to use possession as a last resort; and failed to consider the impact of eviction. Mr Ahern also alleged that Southern HG had failed to interview him about his support needs and had failed to provide evidence of a serious breach of his tenancy. If Mr Ahern’s argument was correct, and there had been a failure by Southern HG to comply with its policies, then the decision to serve him with s21 Notice was unlawful and so it was ineffective to end his tenancy.
Following a two-day trial before a circuit-judge, Mr Ahern’s defence was rejected. The trial judge found that Southern HG had complied substantially with its policies. The judge also concluded that by repeatedly reviewing Mr Ahern’s case, alleged breaches of policy prior to serving the s21 Notice were no longer relevant.
Mr Ahern argued that Southern was responsible for significant breaches of its policies, so the trial judge had not been entitled to conclude that Southern HG had complied with its policies.
The Court of Appeal rejected Mr Ahern’s appeal. It made clear that a public body is under a duty to follow its own policies, except where there is good reason not to do so. It also confirmed that not every departure from the strict wording of a policy involves an error of law because policies must be subjected to a purposive and pragmatic application. The Court of Appeal also noted that Southern HG had “very properly…continued to keep the matter under review even after it had served the section 21 notice”.
Discussion and points to note
This case, which follows a similar approach to the application of policy by a local authority in the Court of Appeal case of Harris v Hounslow LBC  EWCA Civ 1476 at , should encourage the County Courts to robustly consider public law defences which allege failure to follow policy at an early stage. By applying a purposive and pragmatic approach to policy compliance, County Court judges should robustly consider these defences so that if appropriate they can be struck out at an early stage. The underlying theme of this and the Harris v Hounslow case is that public law arguments should not unduly frustrate the objectives of accelerated or other mandatory possession claims.
Having said that, landlords should remain very careful to follow their policies to ensure that due process is followed when pursuing possession on a mandatory basis, such as via a s21 Notice or the absolute ground based on anti-social behaviour. Tenants and their lawyers will remain alert to public law defences and, aside from that, tenants can rightly expect procedural fairness when facing the loss of their home.
For advice or assistance on the issues raised in this article or any aspect of social housing please contact Robert Whitehouse, or your usual contact at ACS.
The UK Government has been consulting on how it should promote social value in its procurements. Here is our response that we submitted to the consultation...
The Tenant Fees Act 2019 came into force on 1 June 2019.
A recent case in the Court of Appeal will no doubt bring a sigh of relief for employers, but a corresponding sigh of disappointment may be uttered for equality and gender balance in the workplace.
This briefing assists response to the consultation paper by outlining the consultation questions, providing some background information and prompting some thoughts and potential answers.
A report published on 29 May by the Institute for Fiscal Studies (IFS) has found that since 2009-10, local government spending on services has fallen on average by 21% in real terms.
A long-awaited decision of the Court of Appeal has clarified that a lower standard of proof should apply than previously thought before an Inquest can return a conclusion of suicide.
New regulations come into force on 1 June 2019, amending the Section 21 (s21) prescribed form template for use with assured shorthold tenancies.
In a challenging economic climate with continuing budget cuts and increasing expectations of staff, sickness absence remains an ongoing problem that is important to address.
Social housing providers will routinely have a number of construction projects underway at any one time. It is essential for client teams to understand and avoid key contract management pitfalls.
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.