Never say never

In Merton LBC v Williams, the Court of Appeal has given further succour to the introductory tenancy scheme in the face of human rights challenges. The judgment overturns a County court judge's decision to set aside a possession order against an introductory tenant of Merton council on the grounds that the council had failed to give adequate reasons for seeking possession and the district judge had failed to have proper regard to the tenant's human rights.

When the Human Rights Act came into force in October 2000, most housing law specialists thought that introductory tenancies would be among its first victims.

In practice, it took until 2001 for the Court of Appeal to hear the case of McLellan v Bracknell Forest BC in which the scheme was upheld as consistent with the act.

In McLellan, the Court of Appeal said the introductory tenancy scheme did not infringe article 8 (right to respect for the home) since the giving of notices and the review process were all matters that could be challenged by way of judicial review. At the same time, any possession proceedings could be adjourned pending the outcome of the judicial review process. The availability of judicial review also meant that the tenant's entitlement to a fair hearing under article 6 was satisfied. The Court of Appeal's approach in McLellan has now been approved and adopted in Merton.

It is worth looking at the facts in Merton and the way in which the Court of Appeal approached its task. The tenant, Mr Williams, was granted an introductory tenancy for a trial period of 12 months in March 2000. In June 2000, Merton served a section 128 notice of possession proceedings. This was served on the basis that Williams had failed to take up occupation of the property and was in rent arrears. The tenant was told as much in the notice of possession. Williams duly requested a review but failed to attend. The review went ahead in his absence and the decision was made not to withdraw the notice. Possession proceedings were issued and an order obtained in November 2000. In both the County court and the Court of Appeal, Williams claimed that his arrears were due to a failure by the council to process his housing benefit application – a claim probably more commonly heard in the County court than in the Court of Appeal. He admitted that he had not moved into the property but said that this was because of ill health and because he did not have enough money to renovate the property.

In the absence of some good explanation, a tenant who fails to pay rent is, on the face of it, unsuitable

On appeal in the County court, the judge had held that Merton had failed to give adequate reasons in its notice of possession proceedings and that the district judge below had failed to consider whether Merton's decision to evict was necessary and proportionate. As a result, there was a real possibility that Williams' human rights under articles 6 and 8 had been violated. He therefore set aside the possession order and adjourned the proceedings pending Williams' application for judicial review (in accordance with McLellan).

The Court of Appeal disagreed with the County court judge's approach. The court emphasised that the purpose of the introductory tenancy scheme is to confirm a tenant's suitability and reliability over a relatively short period. In the absence of some good explanation, a tenant who fails to pay rent is, on the face of it, unsuitable.

If the failure to pay rent is due to the council's own default, that may make the situation different but not where, as in Williams' case, non-payment of housing benefit arose from the fact that the tenant had failed to move into the property in the first place. A council that decided to seek possession in this case was, according to the Court of Appeal, "acting as would be expected". In addition, the court said that the district judge was perfectly entitled to conclude that there was absolutely no prospect of his judicial review application being successful.