Starter and Introductory Tenancies in the Court of Appeal

The Court of Appeal has dealt with two joined appeals examining Introductory/Starter Tenancy procedures.

As a brief recap, Introductory and Starter Tenancies might be used by Registered Providers so as to assess a tenant's behaviour during a probationary period before deciding whether to grant them a fully Secure or Assured Tenancy.

During the probationary period, the tenancy may be brought to an end by serving a Statutory Notice Requiring Possession on mandatory grounds, subject to a right of review of that decision by the Landlord themselves.

In two such cases the procedure was challenged and the Court of Appeal has today released its Judgment in the jointly heard cases of Corby BC v Scott and West Kent Housing Assocation v Haycraft.

The Judgment can be found here.

http://www.bailii.org/ew/cases/EWCA/Civ/2012/276.html

Corby BC v Scott

In the Corby case, the Defendant was also granted an introductory tenancy, this time by a Local Authority. She fell into arrears (which fluctuated) and caused noise nuisance. The Judge at trial was persuaded that her drink problem, and an assault against her, were sufficiently highly exceptional circumstances to permit the Judge to refuse to order possession. The Judge said:

"The circumstances are exceptional because of the gravity of the assault and that is my principal reason for finding these circumstances to be exceptional. They are also exceptional because the arrears had in fact been paid. I have taken into account, although I do not regard it as an exceptional circumstance, that [Ms Scott] has had an opportunity to consider her position while in custody [and] that she has a loving mother and grandmother who have supported her."

The Court of Appeal did not endorse the Trial Judge view, with Lord Neuberger stating that the Judge in proportionality cases;

i) should be rigorous in ensuring that only relevant matters are taken into account on the proportionality issue, and (ii) should not let understandable sympathy for a particular tenant have the effect of lowering the threshold identified by Lord Hope in Powell [2011] 2 AC 186, paras 33 and 35. 

West Kent Housing Association v Haycraft

Haycraft (H) was granted a starter tenancy in May 2009 by West Kent Housing Association (WK). WK received a number of complaints regarding anti-social behaviour concerning H. Following a review, WK informed H that they would seek to end the Starter Tenancy at the end of the probationary period. H utilised WK's appeal procedure, arguing the legitimacy of the complaints and that it was for a Court to decide their truth.

H's appeal was unsuccessful, with the WK panel deciding that it was satisfied the alleged incidents had taken place and it was appropriate to end H's tenancy. A Section 21 Notice was served, with possession proceedings commenced in June 2010.

The County Court made an Order for possession and H appealed on the grounds that it was disproportionate for the Court to make the Order under Article 8 of the European Convention on Human Rights. The appeal was dismissed by the Court of Appeal.

The Court of Appeal found that the allegations of anti-social behaviour had been properly investigated by West Kent during its review and that WK had come to its conclusions in a well reasoned manner.

The Court of Appeal also found that H had not put forward a strong enough argument to warrant a full hearing on the issue of proportionality and that the County Court Judge had been correct to dismiss this argument.

These cases demonstrate the importance for Registered Providers to have robust and well documented review and investigation procedures

They also confirm that the Courts should not be too quick to find the Very Highly Exceptional Circumstances discussed in the Pinnock case. The Courts must strike the balance between one tenant's human rights and the need to protect innocent residents who are the victims of any anti-social behaviour.

If you would like any advice in relation to your tenancy review procedures, please contact us on 0113 201 4900.

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