9TH JANUARY 2019
COUNTY COURT AT BROMLEY, SITTING AT WOOLWICH CROWN COURT
DEPUTY DISTRICT JUDGE WHITE
SF suffered from mental health problems and was under the care of CAHMS as a child.
At age 23 SF became a tenant of Wandle Housing Association. On 19th January 2017, a Suspended Possession Order was made on arrears of £1139.00.
In December 2017 SF mental health had started to deteriorate and in May 2018 SF was sectioned. during this period her arrears increased and a warrant for possession was sought, unbeknown to SF. Before execution of the warrant SF’s family became aware of the eviction and contacted Wandle to explain SF was experiencing a mental health crisis, had been sectioned and did not have capacity. They asked if there was any way possible that the Notice [eviction notice] could be waivered until SF is out of hospital. They did not know what the procedure was and whether they could be advised of such. The operator stated they had to speak to the income officer (who was not available) and, in any case, needed ‘authorisation’ from SF ( which they could not get as SF lacked capacity)
Despite this conversation, the warrant was executed on 22nd May 2018.
Shortly after the warrant was executed GT Stewart, obtained an injunction preventing Wandle from re-letting the premises.
A report was obtained from clinical psychologist which confirmed that SF was unlikely to have had financial capacity from December 2017 and or litigation capacity from January 2018.
An application to set aside the warrant was made on the basis of : (a) there was common law oppression in the execution of the warrant as SF was prevented from exercising their statutory right under s9 HA 1988 and (b) by way of CPR 21.3, the execution of the warrant was of no effect.
At a hearing of that application on 9 January 2019 the Judge set aside the warrant and awarded SF all of their costs.
The Judge found that although the call from family was with a call operator. Wandle had been notified in advance of relevant material information and “had that information been brought to the attention of the Court I can say with certainty, if before me, a tenant in a mental health hospital receiving treatment, that would have suspended the warrant pending the outcome…. The decision to proceed was oppressive and unreasonable…Oppression is hard to define but straightforward to recognise”.
It was also argued that the execution of the warrant amounted to discrimination under s.35 of the Equality Act 2010. The arrears that accrued from December 2017 to April 2018 (when the warrant was sought) and May 2018 (when the warrant was executed) were arrears that were, in part, relied on to when deciding to execute the warrant. Those arrears, it was argued, arose because of SF disability and allowing the warrant to stand would be to give effect to an unlawful act.
Although the Court did not hear argument on this point, it awarded costs in SF favour. It was reasonable and proper to raise the Equality Act 2010 in the alternative.
