Possession claim against a vulnerable trespasser: Article 8, alternative remedies and relief from sanctions

Friday 23 September 2016

R (Plant) v Somerset CC and Taunton Deane Borough Council [2016] EWHC 1245 (Admin), [2016] HLR 24, 26 May 2016.

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R (Plant) v Somerset CC and Taunton Deane Borough Council [2016] EWHC 1245 (Admin), [2016] HLR 24, 26 May 2016

The background

The claimant, P, was a 72-year old-man with a combination of medical and social needs including arthritis, glaucoma, tinnitus, chronic fatigue syndrome and Asperger’s Syndrome.

As a result of the latter condition, P’s social function, flexibility of thought and social interaction was impaired. He experienced sensory overload if exposed to too much noise or too much smell. In addition, he had a high-functioning intellect and had a very high dependency on his dogs for social and emotional support, as well as relying on a mobile engineering workshop he had set up for intellectual stimulation.

The combination of P’s needs meant that he wished to live in a quiet, undisturbed environment where he could keep his dogs and his workshop. P was living in a sound-proofed motor home and had been looking for a suitable site which met these requirements since 1992.

In December 2012, P moved his motor home and workshop on to land owned by Somerset County Council. He did not have permission to do so. In January 2013, Somerset issued a notice to vacate the land. Then, in July 2013, proceedings for trespass were issued in the county court.

In August 2013, P applied to Taunton Deane as homeless. He was offered interim accommodation under s188(1) Housing Act 1996, but declined, preferring to stay where he was while his application was investigated. In October 2013 Taunton Deane accepted that he was owed the main housing duty. Following this, Somerset’s possession claim against P was stayed.

Then, in January 2014, following pre-action correspondence, P issued judicial review proceedings against both Somerset and Taunton Deane. He sought:

  • An order quashing Somerset’s decision to seek possession of the land he occupied and declaring that it would not be lawful to obtain a possession order until Taunton Deane provided him with suitable accommodation under Part VII Housing Act 1996.
  • A mandatory order requiring Taunton Deane to provide such accommodation.

Taunton Deane subsequently indicated that they would not contest the judicial review proceedings and in March 2015 an order was granted by Hayden J requiring Taunton Deane to discharge its duty under s195 Housing Act 1996 (the duty to ensure that accommodation does not cease to be available to a person threatened with homelessness) by 15 April 2015. This deadline was later extended to 13 May 2015.

In the event, on 29 April 2015, Taunton Deane offered P a one-bedroom bungalow in Fitzpaine in Taunton. P turned down the offer. Taunton Deane indicated that the duty owed to P had been discharged.

P then sought a review, supported by medical evidence, arguing that the property had not been suitable for him. On 23 November 2015, Taunton Deane issued a review decision upholding the decision that the property was suitable. This decision was later withdrawn by consent (following the issue of an appeal) and a second review commenced.

Meanwhile, on 19 November 2015, while the first review was still being carried out, Somerset successfully obtained an order within the judicial review proceedings restoring P’s claim against Taunton Deane, since the alleged failure to provide suitable accommodation was standing in the way of Somerset’s possession claim. Taunton, who had not really engaged with the judicial review claim for the large part of two years, did not attend the hearing where this order was obtained.

The substantive hearing of the judicial review claim came before Cheema-Grubb J on 21 April 2016.

At the hearing, Taunton Deane, revising its earlier position, sought to contest the claim, discharge the order granted by Hayden J and oppose the P’s application for an injunction. In doing so it was recognized that Taunton Deane ‘face[d] a considerable hurdle due to its failure to contest the claim until now and its comprehensive failure to comply with the Civil Procedure Rules’ by (among other things) filing an acknowledgement of service, detailed grounds for contesting the claim and evidence, within the requisite time limits.

Relief from sanctions

The judge refused Taunton Deane’s applications to set-aside the earlier orders and obtain relief from sanctions. Having considered all the circumstances of the case in some detail she took the view that the justice of the case did not require her to accede to the applications. The duty owed to P under s193(2) Housing Act 1996 had been discharged by the offer of a suitable property. That duty might be revived if on review or appeal the decision on suitability was found to be flawed. But at the present time, as Taunton Deane owed no further duty, its efforts to contest the judicial review were academic.

Out of time?

The judge then dealt with an argument put forward by Somerset that P’s claim against it should be dismissed as it had not been brought promptly and within three months of the issue of possession proceedings.

This argument was withdrawn when counsel for Taunton Deane brought the case of Taylor v Bedfordshire BC [2009] EWCA Civ 613, [201] 1 WLR 446 to the court’s attention. That case established that where evidence becomes available that was not available at the time a possession claim was issued, the decision to pursue proceedings should be viewed as a continuing act.

Alternative remedies

Somerset also argued that the claim should be dismissed as P could raise all of the arguments he sought to make in the context of the county court possession proceedings. The judge refused to dismiss the claim on this ground. The mandatory order sought against Taunton Deane, was intrinsic to P’s case against Somerset and would not have been available in the county court.

In the unusual circumstances of the case, it would result in unnecessary duplication to remit the matter to the county court. However, the judge was at pains to stress that the decision ‘should not be received as encouragement for anyone in a similar situation to take a similar approach’.

Article 8

Having dealt with the procedural matters the judge then turned to consider P’s claim that it would not be lawful for Somerset to obtain a possession order until Taunton Deane provided him with suitable accommodation. P’s argument was that unless and until alternative accommodation was made available, eviction would constitute a disproportionate interference with his rights under Article 8 ECHR.

It was accepted by the judge that P was a vulnerable person, that there were few locations and situations where his needs would be met and that he did not need to satisfy any kind of ‘exceptionality’ test to succeed on his claim.

Nevertheless, the Article 8 claim could not be sustained. It was axiomatic that even where Article 8 applies it could not operate to give P an unconditional right to remain on the land. At the time the possession claim was issued it may not have been proportionate. But after three years of occupying the land as a trespasser, in circumstances where Taunton Deane had both accepted and then discharged the duty to secure P alternative accommodation, the possession action could not be regarded as disproportionate.

Click here for the judgment.

Comment

P was plainly an extremely vulnerable individual and as far as he is concerned – as the judge was at pains to acknowledge – the decision is undoubtedly a harsh one.

Nevertheless, though the claim was dismissed, the decision is still of some practical utility. In particular, the judge’s recognition that the initial decision to seek possession against P, before he had had been able to maintain medical evidence and before alterative accommodation had been offered to him, may have been disproportionate, provides a helpful steer as to when Article 8 arguments might usefully be raised and how they should be framed.

However, in the majority of cases the place to do so will probably be the county court in the context of possession proceedings, rather than the High Court on an application for judicial review.

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