20.42Barber v Croydon LBC [2010] EWCA Civ 51, [2010] HLR 26
It was unlawful to seek to evict a vulnerable person incompatibly with the local authority’s own policy on dealing with anti-social behaviour committed by vulnerable persons and irrational
Facts: Mr Barber, who had learning difficulties and a personality disorder, and who suffered from severe depression, assaulted the caretaker of his block. Croydon brought possession proceedings.
Judgment: the Court of Appeal (Rix, Richards and Patten LJJ) held that whilst the assault had been serious, Croydon’s pursuit of possession proceedings was unlawful in public law: Croydon had mis-construed and failed to comply with its policy on dealing with anti-social behaviour committed by vulnerable persons, which required them to explore options other than eviction and, in all the circumstances, its approach had been irrational. On behalf of the Court of Appeal, Patten LJ said this:
15. The legality of this decision falls to be considered in private law proceedings by the Council for possession of its property. The ability of a defendant in such proceedings to raise by way of defence in the action a public law challenge to the decision to bring the claim rather than proceeding separately by way of judicial review was recognised in Wandsworth LBC v Winder (No 1) [1985] AC 461. More recently, the House of Lords has given extensive consideration to the grounds of any such challenge in possession proceedings particularly in relation to an Article 8 defence.
16. In Kay v Lambeth LBC [2006] 2 AC 465 the majority view was that judges in the county court trying such cases should proceed on the assumption that domestic law strikes a fair balance and is compatible with the occupier’s convention rights. This led Lord Hope to limit possible challenges to a local authority’s otherwise established right to possession to two types of case: (a) those in which exceptionally it was arguable that the law giving the right to possession was incompatible with Article 8; and (b) cases where the decision to exercise the legal right to obtain possession was one which no reasonable person would consider justifiable: see [110] at 517D.
17. These gateways were considered further by Lord Hope in the subsequent decision in Doherty v Birmingham City Council [2008] UKHL 57 but the guidance set out in Kay remained intact and any further analysis is unnecessary for the purposes of this appeal. Gateway (b) is essentially a conventional public law test, although one which is broader than a strict formulation of the Wednesbury principle: see Doherty at [55].
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44. Judged by any ordinary standards, the assault on Mr Baah was serious and obviously unacceptable. But the Council’s policy on vulnerable people is to explore alternative solutions which may lead to the prevention of antisocial behaviour (ASB) in the future. Although there may be cases where the risk of future ASB by such a tenant is unlikely to be countered by anything less than their removal, the requirement to consult the specialist agencies is likely to ensure that the recovery of possession is confined as a remedy to cases where it is actually necessary in order to prevent a repetition of such behaviour. Given the absence of any misbehaviour by Mr Barber prior to May 22 or subsequently, and having regard to Dr Owen’s assessment of him, it was, I think, incumbent upon Mr Hunt to consult the other agencies and to take advice as to whether some alternative remedy such as an ABC would solve the problem. As I read it, the Council’s policy is not (and certainly ought not to be) that incidents of ASB involving persons with mental disabilities should be handled without regard to the existence of those disabilities and their responsibility for the conduct in question.
45. What Mr Hunt appears to have done is to treat this as an ordinary category 3 case to which the Council’s policies on vulnerable people have no application. I think that approach was wrong in principle and led to a decision by him which no housing authority faced with the facts of this case could reasonably have taken.
46 The judge’s endorsement of Mr Hunt’s decision is objectionable in my view for the same reasons. He makes no mention of the relevance of an alternative remedy and considers the interaction between the Council and the health authorities only in relation to providing an explanation as to why Mr Barber’s condition was not recognised earlier when the decision to serve the notice to quit was made. He seems to attach some weight to Mr Hunt’s evidence that the case would be kept under review but that is something which should have been carried out before the making of an outright order for possession; not afterwards. Once that stage is reached the court ceases to have any control of the process. If, as I believe, steps should have been taken to explore other solutions, that should have occurred prior to the trial of the action. Absent such steps, the challenge to Mr Hunt’s decision was, in my view, entitled to succeed.
Conclusions
47. For these reasons, I would allow the appeal and set aside the possession order. The consequence of Mr Barber having established a gateway (b) defence is that the action fails and should be dismissed. It was suggested by Mr Beglan that this might have the consequence that the Council would either be issue-estopped or prevented on Henderson v Henderson principles from seeking a possession order in a second action were it to carry out the consultation process I have identified but nevertheless ultimately conclude that the recovery of possession was, in all the circumstances, the appropriate remedy. I do not accept that. If Wednesbury-type public law defences are to be permitted to be run in private law proceedings for possession then an exception to the private law rules against re-litigating previously decided issues has to be recognised. In such cases, the court will not treat the second action as an abuse of process when it has been necessitated by the Council having to take further administrative steps (including reconsideration) in order to satisfy its public law obligations. In such cases, the second action will fall to be considered on its merits alone.