Despite extending the starter tenancy’s probationary period the behaviour continued to cause issues and Southern Housing served a Section 21 Notice to end the tenancy.
Mr Ahern appealed on the basis that Southern Housing had breached its public law duty to follow its own policies relating to identifying his support needs and his vulnerability.
The case went to the Court of Appeal and the possession Order was upheld.
The Judgment in this matter has now been published (https://cornerstonebarristers.com/cmsAdmin/uploads/final-ahern.pdf).
Importantly it was accepted by both sides that (a) the social landlord was obliged to follow its own policies except where it could show a good reason not to; (b) that it was not necessary for the tenant to establish a legitimate expectation that the landlord would do so and (c) if there was a breach of the policy it would be for the Court to determine whether such breach was material to the decision to serve Notice.
Here, Southern had in fact been aware of Mr Ahern’s alcoholism and taken steps to assist him in accessing an alcohol treatment programme. Mr Ahern’s behaviour had been extreme – including acts of criminal damage, threats to kill a neighbour by cutting off his head, lewd behaviour and sexual harassment as well as homophobic abuse and general drunk and disorderly conduct. Despite input from Southern, Mr Ahern continued to drink and to behave anti-socially.
For Mr Ahern it was accepted that policies need not be adhered to word for word as the approach must be “purposive and pragmatic” but it was submitted that a material breach of policy had occurred, not least in an alleged failure to use possession as a last resort as stipulated in Southern’s policy on starter tenancies.
At the date the Section 21 Notice was served Mr Ahern had been subject to a Community Order requiring him to undergo an alcohol treatment programme – this had not worked. Southern had been aware of that Order and the programme but identified that Mr Ahern continued drinking.
When the decision was made to review the question of serving a Section 21 Notice Mr Ahern was on police bail and precluded from returning to the flat. Southern, as a result, were not able to contact him either directly or via a probation worker.
The Court of Appeal was satisfied that Southern had done everything possible and had complied with its policies prior to service of the Section 21 Notice:
• They were aware of Mr Ahern’s vulnerabilities;
• They were aware that his needs were being addressed – albeit not successfully – by the alcohol treatment programme and by mental health services
• They were well aware of the impact of a possession Order upon him and
• They could not be found to be obliged to continue signposting Mr Ahern to external agencies for help in circumstances where they could not trace his whereabouts
The possession Order was upheld but the case is a stark reminder to social landlords of the importance of both getting your policies right in the first place and applying them to the situation in hand.
The Social Housing Team at Wilson Browne are always happy to carry out policy reviews for social landlords or to advise where Notice is or has been served.