Housing Update: Davies v Hertfordshire County Council [2018] EWCA Civ 379

Section 11 Childrens Act 2004 is it a valid defence in possession proceedings? – Davies v Hertfordshire County Council [2018] EWCA Civ 379

We have probably all had sight of defences pleading failure to comply with section 11 Children Act 2004 alongside other defences such as human rights (article 8 ECHR), Equality Act and public law issues.  This appeal from the High Court to the Court of Appeal concerned whether a defence under s 11 was a valid defence in possession proceedings.

The facts, very briefly, were that the appellant and his family occupied a bungalow pursuant to a service occupancy (a school caretaker) which was terminated when the Appellant’s employment was terminated for gross misconduct.  However, the local authority (owner of the bungalow) also subsequently served a notice to quit even though it didn’t need to do so. The family refused to vacate and possession proceedings were issued.  Alongside other defences, the appellant pleaded that the Respondent had failed to have due regard (when serving the notice to quit) to the bests interests of the children and the need to promote and safeguard their welfare and accordingly, their eviction would be disproportionate and unreasonable.  The Defence stated that the Appellant’s sons had lived in the house since birth and were schooled locally but nothing more.

The case was transferred to the High Court and Elisabeth Laing J found that s11 could not provide a defence to a possession claim in the absence of a private law right (para 105 of her judgment).  She went on to say that, if she was wrong on this point, she would have held that s11 did apply and that it was breached as there was no evidence that the local authority had given any thought to the effect of service of the notice on the children’s welfare.  The Appellant appealed on the first point of principle contending that the decision to serve and then service of the notice to quit breached the s11 duty (it was not pleaded that any other of the local authorities decisions were flawed on this basis and that wider argument was rejected by the Court of Appeal who focused solely on the notice to quit and the limited reasons set out in the Defence set out above) and that the Judge was wrong to reach the conclusion in paragraph 105.

It will no doubt be familiar to us all that if a court  is asked to make a possession order by a local authority, the court has the power, when a defence is based on article 8 of the European Convention of Human Rights, to assess the proportionality of making such an order even if the occupant has no right to remain in domestic law.

Sharp LJ found that there was no practical reason for distinguishing between the position of a defendant who relied on an article 8 defence and one who relied on an alleged failure to comply with its duties under s11.  She went on to comment that, to her mind “it makes perfect sense for issues about the wellbeing of children caught up in possession proceedings to be dealt with at the same time and before the same tribunal whether they are raised by reference to article 8 or section 11.”  Referring to her earlier judgment in the case of  Kensington and Chelsea Royal LBC v Mohamoud, Wandsworth LBC v Saleem [2015] EWCA Civ 780, she concluded that the s11 duty does not add anything material to the article 8 position.  Accordingly, Sharp LJ formed the opinion that the Judge below reached the wrong decision on the point of principle and concluded that it is open to someone in the position of this appellant to raise a section 11 defence even if they have no domestic right to remain.  However, the appeal was dismissed on the facts.  The Defence and skeleton arguments raised minimal issues concerning the children and none of the issues were held to justify allowing the family to remain in the bungalow.  In light of those matters, the s11 argument could have been disposed of summarily in the usual way that proportionality arguments are when article 8 rights are cited where the occupants has no domestic right to remain.

Laing LJ concluded her judgment by saying “the reality of the position seems to me to be that the issue raised in relation to section 11 was … theoretical.  It had no direct or relevant application to this case…If the respondent had considered the best interests of the children by reference to section 11 of the 2004 Act before serving the notice to quit, the outcome for the appellant would in my view, inevitably have been the same.”

David Richard LJ and Davis LJ agreed.

In conclusion, s11 can, in theory, provide a defence even where there is no domestic right to remain in the property in question.  The points to take away from this case for those representing tenants is to fully plead the alleged failures if raising a section 11 issue.  For those representing landlords, it is important to ensure that there is evidence of taking into account the best interests of the children and policies and procedures should reflect that and be followed. If such issues are raised, they should be disposed of summarily alongside any other proportionality arguments.