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Demoted tenancies
Internal review
Demoted Tenancies (Review of Decisions)(England) Regulations 2004 - Regulations that set out the procedure to be followed when reviewing a landlords decision to end a demoted tenancy. In force in England on 30 July 2004.
Demoted Tenancies (Review of Decisions) (Wales) Regulations 2005 (WSI 2005/1228) - the procedure to be adopted when seeking to convert, in Wales, a tenancy to a demoted tenancy.
Review procedure compatible with ECHR
R (on the application of Gilboy) v Liverpool City Council
[2008] EWCA Civ 751
Summary
The procedure for reviewing a decision to terminate a demoted tenancy is compatible with the European Convention on Human Rights.
Decision
The procedure for review of a decision to terminate a demoted tenancy set out in the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 is not contrary to Articles 6 or 8 of the European Convention on Human Rights.
In coming to this conclusion the CA applied the decision in McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510, in which it was held that the similar scheme that applies to introductory tenancies does not breach the Convention. The decision in McLellan had received the seal of approval of the House of Lords in Kay and has not been affected the decision of the ECHR in McCann v UK (see paras 36 and 44).
Public law defences
Manchester City Council v Pinnock
[2009] EWCA Civ 852
Summary
The reasons for seeking possession against a demoted tenant were not susceptible to review. The tenant could only defend on procedural grounds.
Facts
T and his wife had been secure tenants of L for 30 years. In June 2007, due to considerable anti social behaviour by their children, their secure tenancy was demoted to a demoted tenancy. It was recognised that whilst T and his wife were not directly involved in the anti-social behaviour they were responsible for their children. This was their last chance to exert proper control over them.
In June 2008 L served a possession notice pursuant to s143B (3) of the Housing Act 1996. The reasons set out in the notice were:- one son - resisting and/or obstructing a police officer at the property; and
- another son - causing death by dangerous driving in the locality.
T then sought a review of the decision to serve the notice but at the hearing the decision to seek possession was upheld. Proceedings for possession were then commenced in August 2008.
First Instance
The judge made an order for possession. He found that following Kay and Doherty he had jurisdiction to review the grounds upon which L sought possession. In doing so he stated that he was limited to normal judicial review procedure which did not involve determining factual disputes or considering convention rights. Whilst he found that the reasons in the possession notice were not sufficient, he found that subsequent conduct (burglaries in the area) warranted possession.
Appeal
The judge had been wrong to consider the reasons given by L for seeking possession. Those issues were only relevant at the first stage of the process when a demotion order was made. The possession proceedings should be viewed as part of a process, the first stage of which was the granting of the demotion order. It was at that stage that consideration was given to reasonableness (and proportionality). The second stage was the subsequent claim for possession. The second stage did not require the same level of scrutiny as the first. Stanley Burnton LJ at para 50:“Section 143D of the 1996 Act restricts the County Court to considering whether the procedure under sections 143E and 143F has been followed. If the court concludes the procedure has not been followed, it will not make an order for possession. If it has been followed, it must make the order. I emphasise the word procedure. The court’s review is limited to matters of procedure, and the county court cannot review the substance or rationality of the landlord’s decision, or whether or not it is consistent with the tenant’s or other occupier’s Convention rights.” Even if that had not been the case, and L’s decision was open to scrutiny, the new material about the burglaries would have justified the seeking of possession even though they were not mentioned in the possession notice.
Article: Seeking demotion orders by Jon Holbrook of Hardwicke Chambers - A detailed explanation of demotion order and demoted tenancies. (Seeking demotion orders). (Note that the Hardwicke chambers website contains a number of other articles on related topics - www.hardwicke.co.uk/housing/articles
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