Hoarding tenant fails in High Court challenge to grant of possession order in favour of social landlord

The High Court has upheld a possession order granted to Richmond Housing Partnership (RHP) against a tenant who is a hoarder, rejecting a submission that the first instance judge's conclusion that the social landlord had acted proportionately was wrong.

The appellant, a protected party represented by her litigation friend, the Official Solicitor, appealed against HHJ Luba KC’s order at Central London County Court, granting the landlord possession of her home, where she had an assured tenancy.

RHP applied for possession on a number of grounds, the first of which was that some £18,000 of rent was overdue.

It also sought possession because of anti-social behaviour by her son, who lived at the property, and that the appellant had repeatedly failed to provide access to RHP and its maintenance workers.

Lastly, it sought possession because the premises had deteriorated by acts of waste, neglect and default through hoarding.

The appeal was on the grounds that HHJ Luba failed to provide adequate reasons to explain his reasoning that RHP should gain possession.

Her other two grounds were that HHJ Luba failed to determine her pleaded case that RHP had failed to seek and put in place specialist intervention and erred in law when he determined that RHP did not have the power or skill to apply to [the Court of Protection].

In relation to the first ground, Mr Justice Swift said in his judgment: “One response…might be that in the circumstances of the hearing below, a reasons challenge is somewhat unfair.”

This was because the hearings had been spread over three occasion and at the end HHJ Luba concluded the parties needed a prompt ruling and so gave an ex tempore judgment.

Swift J said counsel had not sought further reasons and “on its own terms as a reasons challenge, this ground of appeal leads nowhere. The issue of substance is whether the judge's conclusion on the justification question is correct.”

He said that taking the three grounds together the issue was whether the decision to seek possession was a proportionate one for the purposes of the defence at section 15(1)(b) of the Equality Act 2010.

This was despite that RHP did not, when commencing the possession proceedings, recognise that the tenant's hoarding was a symptom of her disability, had not put in place 'specialist intervention’ and had not made an application to the Court of Protection.

Swift J said: “The first ground of appeal fails because whether or not RHP considered the tenant to be disabled (within the definition of the 2010 Act) and whether or not RHP formed a view that there was or might be any connection between that disability and the conduct that caused RHP to decide to seek possession is not central to and cannot be determinative of the section 15(1)(b) proportionality issue.

“The proportionality issue is objective and in circumstances such as those in the present case must approached on the assumption that there was a connection between the claimant's disability and the state of affairs the alleged discriminator is seeking to address. The steps taken (or not taken) by the alleged discriminator are to be assessed on their own terms.”

He said he would use the “shorthand of section 15 itself” which states “where the unfavourable treatment afforded by A to B is in response to things that B has done, A's unfavourable treatment of B is capable of being a proportionate means of achieving a legitimate aim even if A does not consider that B's actions were in consequence of a disability”.

He also rejected the argument that possession proceedings were not proportionate because RHP did not first engage specialists in assisting hoarders

“This evidence, which was tested before [HHJ Luba] but not undermined, shows the lengths that RHP went to when seeking to address the hoarding problem.

“In the abstract, it will always be possible to say that something more could have been tried, but the section 15(1)(b) proportionality test must be applied in context.”

Swift J said:  “I do not consider that the obligation to act proportionally imposed by section 15(1)(b) of the 2010 Act required RHP itself to engage specialist help for the tenant.

“Taking such a step would go well beyond anything ordinarily or, in the circumstances of this case, reasonably within the ambit of a landlord and tenant relationship.”

Any such intervention over hoarding should be the responsibility of the social services department rather than the landlord.

The Official Solicitor said on the third ground an assessment of more general incapacity had been needed and then an application to the Court of Protection.

Swift J said: “However, this claimant landlord does not have the skills or resources to produce such an assessment and make such an application.

“The statutory agencies do and the statutory agencies are now, at last and encouraged by the witness summons process which has brought them to this court, at least contemplating the possibility of such an application if a process of final attempts at engagement fail.”

He said the expense of taking such a speculative case at the Court of Protection “would go well beyond any step that could legitimately be expected of a landlord and well beyond anything that could reasonably be considered as a requirement of a proportionate approach on the facts of this case”.

Mark Smulian