7 December 2017, by Connor Johnston
Mr Ahern was the tenant of the Southern Housing Group. He was granted an assured shorthold ‘starter’ tenancy in April 2012. In July 2013, Southern – relying on allegations of threatening, ‘drunken and lewd’ behaviour on the part of Mr Ahern – served a notice under s21 Housing Act 1988 on him. They then commenced possession proceedings against him in October 2013. The judge at first instance held that Mr Ahern had no defence to the claim and granted a possession order.
Mr Ahern appealed to the Court of Appeal. The sole issue before the court was whether the notice had been validly served or whether it was void as a result of public law errors committed prior to service, which had a bearing on the decision to serve the notice.
Mr Ahern was described by the Court of Appeal as being a ‘very vulnerable alcoholic’ and the legal argument centred on the application of Southern’s policies in so far as they related to vulnerable tenants. In particular, it was argued that, contrary to their published policies, Southern had: failed to properly identify Mr Ahern’s support needs and take them into account; failed to address whether support could be put in place; failed to take into account his vulnerability or make inquiries into the possible impact of eviction prior to the service of the s21 notice; and failed to contact Mr Ahern to carry out review visits prior to taking enforcement action.
The Court of Appeal dismissed the appeal. Public sector landlords are required to follow their own policies save where there is good reason not to. This public law duty is distinct from the doctrine of legitimate expectation and the court is not required to consider whether or not the landlord’s departure from the policy amounts to an ‘abuse of power’. But, on the other hand, policies must be subjected to a ‘purposive and pragmatic construction’.
Taking this approach, there had been no breach of the relevant policies. Southern were aware of Mr Ahern’s vulnerabilities but had been unable to contact him directly or through his probation worker. The case had been reviewed twice prior to the service of the notice and Southern could be taken to have been aware of the likely effect on Mr Ahern if evicted without further interview. Further, Southern had considered the support available to Mr Ahern from mental health services and by way of alcohol treatment, but had reached the conclusion that he had the support he needed. Although the support was ineffective, Southern could not reasonably be expected to do more.
Two aspects of the judgment are particularly interesting. The first has been left unresolved. The second actually arose by way of a concession.
The first issue was whether or not, if Mr Ahern could establish an error of public law prior to the service of the s21 notice, that error could be cured retrospectively. The judge, applying Barnsley Metropolitan Borough Council v Norton  EWCA Civ 834,  PTSR 56 (a case involving the predecessor to the PSED) held that it could, and Southern sought to uphold this element of his decision. Mr Ahern argued that this was wrong. However, since the Court of Appeal held that there had been no error of law, the issue did not need resolved. Though the discussion in the recent case of Harris v Hounslow London Borough Council  EWCA Civ 1476 (my note of the case can be accessed here) might be taken to support the claimant’s argument on this issue.
The second issue, arises from the concession made by the claimants, recorded at  of the judgment:
Mr Bhose and Mr Underwood accepted that the Judge had misdirected himself when (judgment, para 58) he had identified the issue for the court as being “whether [the landlord’s] conduct of this case, having regard to the background and the policies, amounts to an abuse of power or that it has conducted itself in a way that no reasonable housing association could have”.
I say this is interesting because it highlights two possible pitfalls that can (and in my experience, often do) arise in the context of public law defences, and makes it clear that judges do need to avoid these pitfalls. The first pitfall is the ‘abuse of power’ point. This arises from the way in which the public law duty to follow a policy unless there is a good reason not to has evolved. I can do no better than to point to Lord Wilson’s helpful exposition of the conceptual development of this duty at - of Mandalia v Secretary of State for the Home Department  UKSC 59,  1 WLR 4546. The point – and this was recognised by the claimants in their concession (see -) – is that the duty to follow published policies was once thought to be allied to the doctrine of legitimate expectation, which involves consideration of whether or not going back on the expectation will amount to an abuse of power. Mandalia confirms that this is not the case. The need to follow policy is now understood to arise from the public law duty of fairness, and the need to treat like cases alike. Because these two doctrines involve the application of different tests, it is vital to apply the correct one. If there has been a failure to follow a policy without good reason than there will have been an error of law. Irrespective of whether or not the behaviour of the public body can be characterised as an abuse of power.
The other pitfall is a little more subtle. It relates to the question of whether or not a court dealing with a public law defence needs to consider whether the landlord has acted in a way ‘that no reasonable housing association could have’ in seeking possession. The apparent need to consider this question arises from seminal cases like Kay v Lambeth  2 AC 465 (per Lord Hope at ) Doherty v Birmingham City Council  UKHL 57,  1 AC 367 (per Lord Hope at ), where the nature of a public law defence was described in these terms. So, perhaps unsurprisingly, it is tempting to proceed on the basis that this is the test to be applied in deciding whether or not there has been an error of public law. But to do so, is to divorce the test being applied from the context of the case.
Both Kay and Doherty involved a substantive challenge to the decision to seek possession on Article 8 ECHR and rationality grounds. In respect of the latter it is readily understandable why the court would phrase the test being applied in language that sounds quite similar to Wednesbury unreasonableness. But that is not to say that in cases where there is a procedural challenge to the decision potentially based on procedural unfairness or the failure to apply a policy (as in Barber v Croydon LBC  EWCA Civ 51,  HLR 26 or Leicester City Council v Shearer  EWCA Civ 1467,  HLR 8) or where there is a challenge to the vires of the public body’s decision (as in Wandsworth London Borough Council v Winder  AC 461), that this is the test to be applied.
To apply such a high test would make little sense. Bearing in mind the effect of the case law post-Winder has been to establish that an occupier can raise a public law defence in possession proceedings in the county court, rather than seeking judicial review in the High Court, it would be very odd if a different approach were taken to assessing whether there had been an error of law in the county court to that which would be taken into the High Court. And in judicial review proceedings, it is trite to say that Wednesbury unreasonableness, procedural unfairness, failure to apply a policy, ultra vires are all distinct errors of law, involving the application of different tests. To equate the failure to apply a policy with Wednesbury unreasonableness (or something close to it) as the judge did in this case is, respectfully, wrong. The question should not have been whether the landlord had acted in a way no reasonable registered provider of social housing could have, but whether or not there had been a failure to apply the policy without good reason. As such this was a fair concession for the Claimant to make in this case and useful to have that concession recorded and approved by the Court of Appeal.