PLT Masthead 430

Masthead Housing - Litigation

A pragmatic approach

Housing portrait1John Murray takes a look into a specific appeal against a housing association landlord's decision to serve notice on a starter tenant.

In the case of Declan Ahern v Southern Housing Group Limited [2017] EWCA Civ 1934 (28 November 2017) in April 2012 Southern Housing Group granted Mr Declan Ahern a starter (probationary assured shorthold) tenancy of a flat in Canterbury. Mr Ahern, was described as a "very vulnerable alcoholic" whose behaviour (which was reported to have been drunken and anti-social with specific allegations of lewd conduct), disturbed his neighbours and others. Southern decided to to serve a Section 21 Notice to terminate the tenancy. The notice was served on 18 July 2013 and possession proceedings followed in early October 2013.  

Mr Ahern contested the possession claim on the basis that Southern had failed to comply with their own policies before they made their decision to serve the Section 21 Notice, thereby breaching its public law duty "to follow its own policies except where there is a good reason not to do so". The Judge at first instance found in favour of Southern and granted a possession order. Mr Ahern appealed.

Mr Ahern's two grounds of appeal were that the Judge at first instance:

  • failed to make adequate findings as to whether or not the section 21 notice was invalid; and
  • wrongly concluded that Southern had not been in breach of its public law duty when it served the notice.

Mr Ahern submitted that Southern had:

  • failed to follow its policy commitment in relation to “identifying any support needs or vulnerabilities throughout the tenancy";
  • failed to follow its policy commitment "in relation to taking those needs into account and failed to address whether support could be put in place";
  • failed to take account "Mr Ahern's vulnerability, or properly to review his case before issuing the section 21 notice and, in particular, failed to make inquiries at that stage into the impact eviction would have on him"; and
  • failed to follow its policy commitment by "failing to contact Mr Ahern and carry out review visits before taking enforcement action".

Southern's reply may be summarised as follows:

  • Southern were aware of Mr Ahern's vulnerabilities – the community order imposed on him in 2012 required him to attend an alcohol treatment program but, as Southern well knew, he had continued drinking (despite successfully complying with the community order);
  • Mr Ahern was on bail and was not to return to the flat, and Southern had made many attempts to locate him and contact his probation worker, but the attempts were without success;
  • Southern reviewed Mr Ahern's case twice before the decision to serve notice was taken. After that decision was taken, Mr Ahern was subsequently arrested and pleaded guilty to affray;
  • As a social landlord, Southern were well aware of the potential implications of its decision and the effect that eviction would have on Mr Ahern;
  • Mr Ahern had the necessary support available to him to stop drinking (despite these efforts not being successful), there was nothing else that Southern could reasonably do; and
  • Southern clearly could not continue referring and signposting Mr Ahern to support agencies in circumstances where his whereabouts were unknown and once he had been remanded in custody.

The decision

The Court of Appeal dismissed the appeal. The Court noted the need to take a "purposive and pragmatic" approach to the need for compliance with policies and procedures and that "not every departure from the strict wording of a policy will involve an error of law".

While social landlords are expected (rightfully) to comply with their own policies, the Ahern decision highlights that, small procedural or policy non-conformities will not necessarily defeat a landlord's claim.

The decision serves as a reminder to properly record and document all steps taken to support tenants as well alongside the eviction process, which can be subject to detailed scrutiny by the Court in the event of the proceedings being challenged.

John Murray is Head of the Social Housing Group at Ward Hadaway. He can be contacted on 0113 205 6670 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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