Introductory tenant defences against possession

The County Court must order possession if the landlord has followed the correct procedure. However, the court has the power to assess the proportionality of making an order on human rights grounds or to consider a public law defence on conventional judicial review grounds.

In possession proceedings, the County Court must examine whether:

• the tenancy was in fact an introductory tenancy when possession proceedings were issued by the court (if this was after the end of the trial, or extended trial period the case will be dismissed)[1]

• a valid section 128 notice was served

• the proceedings were begun prematurely (the County Court will not consider possession proceedings before the date stated in the section 128 notice)[2]

The issue of whether the landlord has elected to operate an introductory tenancy regime may also be raised. In one case the court held that the regime continued to operate where the local authority had elected to 'implement introductory tenancies on a trial basis for one year' and had not subsequently revoked the scheme.[3]

The court should also consider whether the landlord followed the Pre-action Protocol for Possession Cases by Social Landlords.

There can be a defence to possession proceedings if a section 128 notice is defective. For information on what must be included in a notice of proceedings see Notices: Introductory tenancy.

No reasons

The notice is not valid if no reasons are given for the landlord's intention to seek possession.

Inadequate reasons

It may also be possible to challenge the notice if the reasons given are inadequate. 

The reasons should:

• be intelligible

• be adequate

• enable the reader to understand why the matter was decided as it was

• enable the reader to understand what conclusions were reached on the 'principal important controversial issues' and disclosing how issues of law or fact were resolved

• not give rise to a substantial doubt that the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter, or by failing to reach a rational decision on relevant grounds

Brief reasons can be adequate; the degree of detail required depends on the nature of the issues. A court will be slow to infer that the landlord has failed to make a rational decision on relevant grounds. The reasons need only refer to the main issues in the dispute, not to every material consideration. A challenge on the grounds of inadequate reasons will only succeed if the tenant can satisfy the court that they have genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision[4]

There have been a number of cases that examined the situation where the landlord issues a section 128 notice, but postpones acting on it until a later date following the outcome of a review. The question raised is whether a fresh notice with fresh review rights is required.

Decision on review must be unequivocal

If the review decision does not confirm the original decision to seek an order for possession then the landlord will have to serve a fresh section 128 notice if it wishes to take possession proceedings. A review decision cannot be expressed in equivocal terms.[5] The actual wording of the review decision is critical as where a landlord upheld its original decision but suspended action upon the payment of rent arrears – when payments were not made and the landlord sought possession relying upon its original section 128 notice, possession was granted [6] Each case will depend on its own facts. 

Conduct/misconduct of different character to that detailed in earlier notice

If the landlord puts forward different reasons to those given in the original notice and no new notice is served, the procedure is defective. If this has caused hardship or injustice to the tenant because they have not had an opportunity to put their case to the landlord or to have their views considered, then there is a defect in the notice. That may either give rise to a successful judicial review claim or it may amount to a successful defence.[7]

Combination of conduct detailed in notice and other conduct not mentioned in notice

Normally, in a case such as this, the decision to bring proceedings can be challenged by judicial review because the tenant will not have been able to effectively use the review procedure. However, where the landlord can prove that it would have made the same decision to evict based on the conduct contained in the notice alone, then the High Court will not interfere with the decision.[8]

Defences to possession proceedings have been raised citing a breach of articles 6 or 8 of the European Convention on Human Rights (ECHR).

Article 8

The Supreme Court has held that the eviction of an introductory tenant is an interference with the right to respect for their home under Article 8 of the ECHR, and that the County Court has the power to assess the proportionality of making an order and, in making that assessment, to resolve any relevant dispute of fact.[9]

Article 8(2) allows a public authority to interfere with a tenant's Article 8 rights where the interference is 'in accordance with the law' and is done to further a legitimate aim. The Supreme Court held that the legitimate aims which a landlord seeking a possession order against an introductory tenant may rely upon are:[10]

• the vindication of the authority's ownership's rights, and

• to enable the authority to comply with its public duties in relation to the allocation and management of its housing stock.

The landlord does not normally need to provide its reasons for seeking a possession order and the court can usually summarily dismiss any argument raised by the tenant that making an order is disproportionate. The tenant requires a seriously arguable defence and needs to set out why there are compelling factors which render it disproportionate for the court to make an order for possession. The court can then consider the tenant's personal circumstances.[11] When deciding whether it is proportionate to evict an introductory tenant, the County Court must consider the facts at the date of the possession hearing, not the date on which notice was served or when the decision to seek possession was approved on statutory review.[12]

For further information on the proportionality test see Public law and human rights defences in possession proceedings.

If the court decides that a possession order should be granted, the day for giving up possession cannot be later than 14 days after the possession order is issued, except where possession would cause exceptional hardship in which case the date can be postponed for a maximum of six weeks.[13]

Vulnerable occupiers

The proportionality argument is most likely to be relevant in respect of tenants and their households who are vulnerable owing to mental illness, physical or learning disability, poor health or frailty. The Supreme Court has approved a suggestion by the Equality and Human Rights Commission that the issue may require the local authority to explain why it was not securing alternative accommodation in such cases.[14]

Article 6

The Court of Appeal has held that the internal review procedure under the introductory tenancy regime is compatible with Article 6 of the European Convention on Human Rights (the right to a fair hearing by an independent and impartial tribunal).[15]

Regulations set out how the landlord should conduct the internal review (also known as 'statutory review').[16] Any failure to follow the regulations can give rise to a potential challenge on judicial review grounds.

In addition, the review must be conducted reasonably and in accordance with principles of natural justice. Any relevant matters, which may include disability, financial problems and housing benefit problems, must be given due consideration. Issues that are not relevant should not be taken into account. The landlord should not normally take into account at the review stage matters not included in the section 128 notice. The decision must not be one that no reasonable or rational authority could have come to.

It remains unclear whether an occupier can raise a public law defence on conventional judicial review grounds in the County Court. If a County Court remedy is available then judicial review is not available. If the County Court cannot consider the defence then the court should be asked to adjourn proceedings pending a judicial review in the High Court.

Part 4 (Premises) of the Equality Act 2010 prohibits discrimination in relation to premises and imposes a duty on people with the right to dispose of, and managers of, premises not to unlawfully discriminate against people who have a protected characteristic (disability, gender reassignment, pregnancy or maternity, race, sex, sexual orientation, religion or belief) by:

• evicting them

• taking steps for the purpose of securing their eviction, or

• subjecting those people to any other detriment.

Disability

With particular regard to disability, the landlord will unlawfully discriminate against a tenant if it treats the tenant unfavourably and that treatment arises as a consequence of the tenant's disability.[17] Discrimination will arise if the reason that the landlord is taking possession is sufficiently linked to the tenant's disability, for example where there is evidence that a tenant's depressive illness has a substantial adverse effect on their ability to manage their financial affairs, including the ability to apply for housing benefit.

Discrimination will provide a disabled tenant with a defence to possession proceedings unless the landlord can show that:

• the tenant's eviction is a proportionate means of achieving a legitimate aim[18] or

• it did not know (or could not be reasonably expected to know) that the tenant was disabled[19]

There is also a duty to make reasonable adjustment which extends to a provision, criterion or practice of the landlord, in all cases where the adjustment is required to avoid placing the disabled person at a substantial disadvantage.[20]