Norton your nelly!
Court of Appeal rejects starter tenant’s policy-breach complaints
On Tuesday 28 November 2017, the Court of Appeal delivered judgment in Ahern v Southern Housing Group Ltd  EWCA Civ 1934, an appeal against a possession order made in accelerated possession proceedings issued four years previously.
Social landlords will welcome the judgment’s affirmation that their policies must be subjected to a purposive and pragmatic construction; and that not every departure from the strict wording of a policy will involve an error of law.
It will be of real concern, however, that a so-called accelerated procedure, on which housing associations rely for the efficacy of starter tenancy programmes nationwide, took four years from issue of the claim to Court of Appeal judgment.
In April 2012, Southern Housing Group Ltd (Southern HG) granted Mr Ahern an assured shorthold ‘starter’ tenancy of a flat in Canterbury. Mr Ahern, who had a history of alcoholism, behaved anti-socially during the probationary period of his tenancy and was duly convicted of harassing his neighbour. As a consequence, he was given a community order and provided with support for his drink problem. During an extension of his probationary period, he continued to behave anti-socially and, in April 2013, was bailed not to live at his flat. He was then remanded in custody in June for a public order offence. Having reviewed his case twice, Southern HG decided to serve him with notice requiring possession of his flat under section 21, Housing Act 1988. Following an internal appeal – a process in which Mr Ahern engaged from prison – it brought an accelerated claim for possession.
Relying on Wandsworth LBC v Winder (No.1)  AC 461, Barber v Croydon LBC  EWCA Civ 51 and Eastland Homes Partnership Ltd v Whyte  EWHC 695 (QB), Mr Ahern defended the claim on public law grounds, arguing that Southern HG had failed to comply with its policies on anti-social behaviour, vulnerable tenants and starter tenancies – in particular by failing to identify and address his support needs – and that the decision to serve him with notice was therefore unlawful and a nullity. In consequence, he claimed, the court had no jurisdiction to hear the claim.
Following a two-day, multi-track, trial in late 2014, HHJ Simpkiss rejected his defence on the ground that Southern HG had complied substantially with its policies. Even if it had not, he held, having repeatedly reviewed Mr Ahern’s case, any breaches pre-dating the notice were no longer material. Relying on the dicta of Lloyd LJ in Barnsley MBC v Norton  EWCA Civ 834 at [33-37], therefore, the Court could allow Southern HG’s claim nonetheless.
Before the Court of Appeal, Mr Ahern challenged both such findings but failed to establish that, on the evidence before him, the judge had not been entitled to conclude that Southern HG had complied with its policies. So holding, Sir James Munby, President of the Family Division, restated (at  and ) the parties’ common position on the requirements of policy compliance:
• A public body is under a duty to follow its own policies, except where there is good reason not to do so
• That duty, previously explained as a type of legitimate expectation, actually arises because of a related principle of good administration
• It is not necessary, therefore, to ask whether, in departing from its policies, a public body acted in such a way as to amount to an abuse of power
• That question may arise when considering whether the public body had good reason to depart from its policies, but does not arise if no such reason is asserted and the public body simply fails to apply its policies
• Not every departure from the strict wording of a policy will, however, involve an error of law, because policies must be subjected to a purposive and pragmatic construction (see R (Das) v Secretary of State for the Home Department  EWCA Civ 45,  1 WLR 3538 at ).
Given the failure of Mr Ahern’s first ground of appeal, the Court was not required to address the second – concerning the propriety of Lloyd LJ’s dicta in Barnsley MBC v Norton (above). Accordingly, it declined to do so, recording only (at 19]) that, “very properly, [Southern HG had] continued to keep the matter under review even after it had served the section 21 notice”.
It is to be hoped, in light of Ahern and recent dicta by Lewison LJ in Harris v Hounslow LBC  EWCA Civ 1476 at , that County Courts will now subject public law defences premised on alleged policy failures to greater scrutiny at an early stage of proceedings; and weed out those, like Ahern, in which the alleged failures would stretch the landlord’s obligations far beyond the purposive and pragmatic; and frustrate the objective of an accelerated route to possession.
In the meantime, landlords and their lawyers will no doubt continue to rely on the salutary dicta of Lloyd LJ in Norton, enabling them, in effect, to retroactively ‘cure’ a precedent breach of policy or procedure.
In light of Ahern, however, they will do so in the certain knowledge that, sooner or later, Lloyd LJ’s dicta will ground a further challenge before the Court of Appeal; a costly one that, conceivably, the dicta might not survive. With that in mind landlords’ focus, as ever, must be on substantive compliance with their policies and procedures – purposively construed and pragmatically applied – and avoiding the need for reliance on Norton.
To read the full transcript of the Court of Appel’s judgment, click here. (Not yet available on BAILII)