This time however the Court found that proportionality can be considered at enforcement stage after a Possession Order has been made.
JL was a tenant of the Secretary of State for Defence due to her husband being an Army Officer. Their relationship broken down in 1989 and JL was allowed to remain in the Property with her two daughters and her grandchild on compassionate grounds. This was supposed to be a temporary arrangement to allow JL to obtain alternative accommodation from the local Council. JL suffered from long standing physical difficulties and one of her daughters has long standing mental health issues. JL’s grandson suffers from Crohns Disease.
It was not until 2007 that possession proceedings were commenced. JL sought to rely on interference with her Article 8 rights in her Defence. Article 8 gives a right to respect for private and family life including a person’s home.
We are all familiar with the concept of proportionality as introduced by the Pinnock case however JL’s possession proceedings were heard before this decision was made.The Judge in the possession proceedings therefore had no choice but to dismiss JL’s Article 8 arguments as the law did not allow such defences at that time. A Possession Order was therefore made in May 2009.
JL made a homeless application to the Council who took into consideration the health of both JL and her family and gave JL the highest priority for re-housing. The requirements for a suitable property were very specific and took into account JL’s mobility and health issues.
The Secretary of State voluntarily allowed JL a period of six months to find alternative accommodation and she remained in the Property. However, it wasn’t until March 2011 that a Warrant for Possession was issued.
JL sought to argue Article 8 rights at the enforcement stage as a reason why the Warrant should be stayed. At this time Pinnock had now been decided and was applicable, it was thought, to claims only before a Possession Order was made. The Court dismissed her Appeal but agreed that Article 8 rights and proportionality should and could be considered by the Court even as late as an application to suspend a Warrant. The Court did say however the circumstances where a Defendant could raise these issues would be "exceptional". Only if there has been a significant change in the tenant’s personal circumstances will a Judge allow such an argument to be considered.
An example given by the Judge was where a tenant is diagnosed with a terminal condition after the making of a Possession Order and it would be disproportionate for the landlord to evict that tenant before they were allowed to die peacefully at home.
The Court also stated that attempts to raise such arguments again, after they had already been dealt with at Trial, could be seen as an abuse of process. Likewise if the Defendant could have raised the issues during the hearing of the original Possession claim he or she will struggle to persuade a Judge to listen to such an argument at this stage.
Practical Advice for Hearings
Should you attend a Warrant suspension hearing and the Defendant seeks to raise proportionality issues, be ready to make submissions to the Judge arguing that either:
If there has been a change in circumstances or the Judge deals with the argument remember the general points in relation to dealing with proportionality issues raised at Court:
Should you wish to discuss the implications of this case please call any member of our Housing Litigation team on 0121 212 7400 or Alex Loxton on alex.loxton@anthonycollins.com.
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