mandatory possession claim in an introductory tenancy
On 22 December 2011, in the case of London Borough of
Southwark v Hyacienth the tenant successfully defended a
mandatory possession claim in relation to an introductory
tenancy.
The facts were that Ms Hyacienth, a single mother with two young
children, took an introductory tenancy of a Southwark property in
June 2008. Housing benefit clawed back an overpayment, which gave
rise to rent arrears. Southwark served notice, a review was carried
out which confirmed the decision to proceed, the claim was issued;
and a possession order was made at a hearing at which Ms Hyacienth
was present but unrepresented. Later, she took legal advice, with
the result that an appeal was made which ultimately resulted in the
possession claim being dismissed, leaving Ms Hyacienth a secure
tenant.
The court pointed out that Southwark had not follow their
policies for vulnerable persons, such as early intervention and
advice etc. As the judge put it, by the time of the review, Ms
Hyacienth was faced with an "uncompromising approach" by the
bureaucracy – "no agreement because you are six months into
your tenancy and you must pay all the arrears. This was in no sense
tailored to her situation, it was not helping her in a constructive
way and she was not directed to agencies that might assist her".
The reviewers nor anyone in the Council had considered their
policies and procedures. In addition, Southwark did not file a
witness statement explaining how they operated the review process
with the original claim, (which the judge seems to have regarded as
a requirement, not just good practice).
what this means for social landlords
- The clear guidance given by the Supreme Court is that it is for
the occupier to raise any 'proportionality' defence; which she did
not, at least at the original hearing.In this case, (as is often
what happens in practice), this did not stop the judge, at the
appeal hearing, from taking such matters into consideration.
- The landlord failed to follow its own policies and procedures,
(a common occurrence).
- Those policies and procedures were, in the eyes of the court,
too uncompromising and bureaucratic.
All this resulted in the 'mandatory' ground for possession
turning out to be an illusion. All social landlords should ensure
that their policies and procedures are robust, but fair; that
claims for possession are pursued in an appropriate manner; and be
aware that, these days, there is no such thing as a 'dead cert',
when it comes to possession claims.
