Case No: B5/2012/2175
Neutral Citation Number: [2013] EWCA Civ 159
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
Mr Recorder Nicholas Wood
1PB03080
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 6th March 2013
Before :

LORD JUSTICE PATTEN
LADY JUSTICE BLACK
and
LORD JUSTICE KITCHIN
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Between :

	FAREHAM BOROUGH COUNCIL	Appellant	
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	TERRY MILLER	Respondent	

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Mr Philip Glen (instructed by Southampton & Fareham Legal Services Partnership) for the Appellant
Ms Felicity Thomas (instructed by Swain & Co) for the Respondent

Hearing date : 6th February 2013
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Judgment
Lord Justice Patten : 
1.	This is an appeal by Fareham Borough Council (“the Council”) against an order of Mr Recorder Wood made in the Portsmouth County Court on 3rd August 2012.  The Recorder dismissed the claim by the Council for possession of a one-bedroom flat at 50, Gibraltar Close, Fareham (“the Flat”) which was let to the defendant, Mr Terry Miller, under a non-secure tenancy granted under Part VII of the Housing Act 1985. 
2.	Mr Miller (who is now 30 years old) has a long history of persistent criminal offending.  Most of his convictions are for theft but his criminal record between 2000 and 2012 includes a number of offences of assault and public disorder.  He has been using Class A drugs for many years and is a heroin addict.  Many if not most of his convictions for theft (mainly for shoplifting) are connected with his drug habit.  His rent is paid through housing benefit.  
3.	In 2009 the Council accepted that Mr Miller was homeless and in priority need; and that he had not become homeless intentionally.  It satisfied its homelessness duty under Part VII by granting the non-secure tenancy of the Flat.  The hope was that if Mr Miller could be properly housed and placed on an appropriate prescription for his drug addiction it would be possible to break the cycle of offending and so decrease the risk of harm, both to himself and to the general public.
4.	The non-secure tenancy agreement for the Flat is dated 14th September 2009. The tenancy was granted at a rent of £111.49 per week payable fortnightly in advance on and from 14th September.  Under clause 2 the tenant covenants:
“(d) 	not to allow any other person to occupy or share in the occupation of the premises; and
 (j) 	not to do or permit or suffer to be done hereunder anything which in the opinion of the Council may be a nuisance damage or annoyance to or in any way interfere with the adjoining owners or occupiers.”
5.	Clause 3 provided that: 
“It is hereby agreed that this Non Secure Tenancy Agreement may be terminated by either party giving to the other four weeks notice in writing to that effect to expire at noon on a Monday.”
6.	During 2010 the Council was advised by the police that Mr Miller was living with his girlfriend in Gosport.  He was interviewed by a council housing officer and denied this but, in the meantime, his housing benefit payments had been stopped and significant rent arrears accrued.  On 13th May 2010 the Council served a notice to quit based on arrears of rent but by 24th May Mr Miller’s housing benefit had been re-instated and the arrears paid off.  No further action was taken in respect of the notice to quit.
7.	In June 2010 the Council received reports that other people were sharing occupation of the Flat and a senior housing officer visited the property and spoke to Mr Miller.  He denied that anyone else was living there but he was reminded of the prohibition against sharing contained in the tenancy agreement.  Mr Miller served a further term of imprisonment between June and August but was released on 26th August 2010.  On 3rd September the Council was informed by the police that he had not returned to the Flat on his release and that when the police called at the property on 3rd September they found four men there who were known to them: Anthony Cripps, Kevin Snelling, Trevor Hyde and Patrick Sitch.
8.	The Council then wrote to Mr Miller asking him to attend an interview on 20th September but by then he was back in prison.  On 26th November he was sentenced to a further 28 days in prison and then on 19th January 2011 to a further five months.  On 3rd February 2012 Mr Miller’s probation officer, Ms Sam Chuter, made contact with Mrs Jane Cresdee, one of the Council’s senior housing officers, and told her that she had warned Mr Miller that if he continued to allow other people to stay at the Flat he risked losing his tenancy.  On 30th March 2011 Mr Miller was sentenced to a further 56 days in prison for yet another offence.  There had still been no direct meeting with him to discuss his tenancy.
9.	In April 2011 another tenant in Gibraltar Close complained of being threatened by Kevin Snelling and of constant arguments, shouting and the kicking of doors at the Flat.  At the time Mr Miller was in prison but he says in his witness statement that when he was sentenced to several months’ imprisonment in January 2011 he gave his keys to Snelling and asked him to check on the Flat and to collect the post.  His case is that he did not permit Snelling to live in the Flat when he was in prison and is annoyed that Snelling has done so.  He was unaware of the incident involving the other tenant or of other allegations of various disturbances emanating from the Flat.  He says that he was released from prison in mid-May 2011 and that one of his licence conditions was that Snelling was not to visit the Flat or anywhere in its vicinity.
10.	Faced with the complaint from the other tenants about Snelling’s behaviour at the Flat, the Council served a notice to quit dated 20th April 2011.  Mrs Cresdee says in her witness statement that the notice was served because the Flat was being used by Snelling and others to the detriment of other tenants and that this was the only way to ensure that the Council regained control of the property.  The Council could apply for anti-social behaviour injunctions against those involved but this would necessitate a number of separate proceedings and give rise to consequential problems about enforcement.
11.	Following the service of the notice to quit, Mrs Cresdee did, however, agree to meet Mr Miller’s probation officer and a representative from the Drug Intervention Programme to see if there were any alternatives to seeking an order for possession.  The meeting took place on 19th May; the day before Mr Miller was due out of prison.  The only evidence of what occurred at that meeting is given by Mrs Cresdee.  She says that she was told by Ms Chuter that the conditions for his release on licence would be tightly drawn so as to require him to live at the Flat alone.  He would receive support there from various agencies up to four times a week and any breach of the licence conditions would mean an instant recall to prison. 
12.	On this basis Mrs Cresdee says that she agreed to give Mr Miller another chance.  He was released from prison on 20th May.  The locks to the Flat were changed and he was given the new keys.  Ms Chuter, who was present with the police, made it clear to Mr Miller that “he must keep to the terms of his licence and stay out of trouble or he really could end up losing his home”.
13.	But within four days of his release Mr Miller had been returned to prison for a further offence.  Mrs Cresdee says that on hearing this she felt that the Council had no option but to continue with proceedings for possession.  The claim form was issued on 20th July 2011.
14.	Mr Miller received further sentences for shoplifting on 26th May and then again on 12th July.  The Council was advised by the police that he had given copies of the new keys to Cripps and others and on 14th July the Council changed the locks once again.  Mr Miller was released from prison on 19th August and collected the keys to the Flat.  The Council’s evidence in the possession proceedings was that it was informed by the police that Snelling was living at the Flat again and had been involved in an incident on 23rd August when he assaulted a woman near the Flat when drunk.  Mr Miller was present at the time.  This was followed by a series of further incidents in 2011 and 2012 involving the Flat in connection with drug taking and anti-social behaviour.  It is unnecessary to describe them in any great detail.  Neighbouring tenants have complained of rowdy, drunken behaviour by Snelling and other occupants of the flat; of fights involving smashed bottles; of Snelling urinating from the windows of the Flat on to the paths beneath; and of frequent drug use.  The Flat is reported to be in a filthy, hazardous state strewn with used needles and other drug paraphernalia.  Similar drug related debris has been left as rubbish in the common parts of the building.  The neighbours and also their children have been exposed to all of this for months on end and are in fear of the drunken, violent behaviour of Snelling and his associates.
15.	The Recorder described the Flat as having become during this period a running sore of criminal behaviour which has so upset some of the neighbours that they have requested anonymity in respect of their complaints for fear of reprisals.  It is clear to me that the use of the Flat in this way must have made their lives intolerable.
16.	The Defendant’s case and his evidence is that he is not responsible for what has occurred.  He says in his witness statement that when he was arrested in July 2011 he handed his keys to Cripps and asked him to lock up the Flat and send the keys to him in prison.  He had no reason to believe that Cripps would allow Snelling or any other people to use the Flat in his absence.  He denies that after his release from prison on 19th August he allowed Snelling to live at the Flat.  Any visit by Snelling to the area had nothing to do with him.  
17.	Mr Miller accepts, of course, that he has repeatedly been sent back to prison in 2011 and 2012 for a series of further offences and that he has therefore been frequently absent from the Flat.  He says (at the time of making his witness statement in January 2012) that he is now clear of drink and illegal drugs and is receiving a methadone maintenance prescription.  He hopes to commence a short duration drug programme whilst in prison to assist him in finding ways of dealing with his addiction.  On release he hopes to be assisted by enrolling on a drug rehabilitation course.  He says that he hopes to break away from the constant pattern of re-offending and find new friends who are free of drugs.  He accepts that he has been taken advantage of by Snelling and others but says that his own drug addiction and the recent loss of his father have made him particularly vulnerable in this respect.  The essence, however, of his defence to the possession proceedings was that anyone using the Flat during his absence has done so without his permission and in circumstances where he has been unable to prevent it.
18.	In the claim for possession based on the notice to quit served on 21st April 2011 the Council alleges in terms that Mr Miller has acted in breach of both clause 2(d) and 2(j) of the tenancy agreement by permitting Snelling and Hyde to occupy the Flat and as a result of the use of the Flat by the defendant and others as a meeting place for illegal drug use; the excessive drinking of alcohol on the premises; and the shouting, use of foul language and general rowdiness by the defendant and his associates.  But the existence of a breach of covenant is not a pre-requisite to the service of a valid notice to quit under the tenancy or to the making of an order for possession.  The Court does not (as in the case of a secure tenancy) have to be satisfied that the Council has made out one of the statutory grounds for possession and that it is reasonable to make the order.  Assuming that the notice to quit satisfied the statutory requirements as to form prescribed by the regulations made under the Protection from Eviction Act 1977 (which in this case it does) and is contractually effective to determine the tenancy then (subject to any public law defences) the Council is entitled to an order for possession and the only question for the Court is whether the order should be for immediate possession or should be postponed up to the limits permitted by s.89 of the Housing Act 1980.
19.	The enactment of the Human Rights Act 1998 and the direct application of Convention rights to the performance of statutory duties by public authorities have compelled the courts to consider how to accommodate, in the context of the Part VII duties to homeless persons, any Article 8 rights which they are able to establish.  It is common ground (and, in any case, settled law) that the grant of a non-secure tenancy as in this case to a homeless person does create Article 8 rights which are necessarily engaged by any decision of the local authority to seek possession of the relevant premises.  The ability of the tenant to raise an Article 8 (or any other public law) defence in answer to a claim for possession is well established but the power of the County Court to uphold an Article 8 challenge to the making of a possession order was limited by the decision of the House of Lords in Kay v Lambeth LBC [2006] 2 AC 465 to cases in which it was either seriously arguable that the relevant statutory framework was itself incompatible with Article 8 (gateway (a)) or in which the decision of the local authority to seek possession was (regardless of the tenant’s Convention rights) Wednesbury unreasonable (gateway (b)).  A pure proportionality challenge to the possession claim based on Article 8 which did not meet the Wednesbury threshold was liable to be struck out. 
20.	The successive decisions of the Supreme Court in Manchester CC v Pinnock [2010] UKSC 45 and Hounslow LBC v Powell [2011] UKSC 8 have changed all that.  It is now possible for a tenant under a non-secure tenancy to raise a pure Article 8 defence to a claim for possession and for the court to consider whether the making of a possession order would be necessary in a democratic society.  The corollary to this is that a local authority will in the face of such a challenge be required to give reasons for its decision to seek possession so that the court, in conducting a proportionality review, can decide whether an order is justified. 
21.	This is not, of course, to say that a full-blown proportionality review is now appropriate in every case.  It is for the tenant to raise the proportionality challenge by way of defence and to establish a seriously arguable case that his own circumstances override the particular exercise by the council of its public responsibility to manage the available public housing stock for the benefit of the community as a whole.  Only in exceptional cases will it be possible for the tenant’s personal circumstances to establish a claim to maintain a home under his existing tenancy.  These principles in their application to homelessness cases are set out in the following paragraphs of the judgment of Lord Hope DPSC in Hounslow LBC v Powell: 
“[34] The first question is whether in a case where domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession, there is a requirement for an independent determination by a court of the issue of proportionality. In Pinnock it was held that the court must have the ability to assess the art 8 proportionality of making a possession order in respect of a person's home: para 63. This is so even if the Defendant's right of occupation has come to an end: Pinnock, para 45, applying McCann v United Kingdom, para 50; Ćosić v Croatia, para 22; Zehentner v Austria, para 59; Paulić v Croatia, para 43; and Kay v United Kingdom, para 68. But it was also held that, as a general rule, art 8 need only be considered if it is raised by or on behalf of the residential occupier, and that if an art 8 point is raised the court should initially consider it summarily and if it is satisfied that, even if the facts relied on are made out, the point would not succeed it should be dismissed. Only if it is satisfied that it is seriously arguable that it could affect the order that the court might make should the point be further entertained: para 61. I would hold that these propositions apply as much in principle to homelessness cases as they do to demoted tenancies. It follows that in the great majority of cases the local authority need not plead the precise reasons why it seeks possession in the particular case. But if an art 8 defence is raised it may wish to plead a more precise case in reply.
[35] Mr Luba QC accepted that the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. I think that he was right to do so: see also Pinnock, para 54. Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlord's public responsibilities. Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.
[36] If the threshold is crossed, the next question is what legitimate aims within the scope of art 8(2) may the Claimant authority rely on for the purposes of the determination of proportionality and what types of factual issues will be relevant to its determination. The aims were identified in Pinnock, para 52. The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority's ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement.
[37] So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier's personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44.
…..
[40] Mr Luba then said that each of the exceptions to the security of tenure regime was there for a particular social housing reason. It was material to a consideration of the issue of proportionality, therefore, for the court to know whether the local authority's reason for seeking a possession order was relevant in that context. In the case of an occupier who had been provided with accommodation under Pt VII, seeking a possession order to enable the local authority to perform its homelessness functions, such as moving a family whose numbers had reduced to smaller accommodation, the case for granting the order would in the overwhelming number of cases be proportionate. But if the local authority's decision was based on other factors such as rent arrears which were not related to the performance of its homelessness functions, it was not enough to tell the court that it was the local housing authority and to rely on the two legitimate aims. He said that a structured approach was required to the issue of proportionality so that the interests of the local authority could be balanced against that of the occupier: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, paras 19-20, [2007] 4 All ER 15. Support for this was to be found in Zehentner v Austria, para 56 where the court said that, while it was for the national authorities to make the initial assessment of necessity, the final evaluation as to whether “the reasons cited for the interference” are relevant and sufficient remains subject to its review for conformity with the requirements of the Convention.
[41] A structured approach of the kind that Mr Luba was suggesting may be appropriate, and indeed desirable, in some contexts such as that of immigration control which was the issue under discussion in Huang v Secretary of State for the Home Department. But in the context of a statutory regime that has been deliberately designed by Parliament, for sound reasons of social policy, so as not to provide the occupier with a secure tenancy it would be wholly inappropriate. I agree with Mr Stilitz QC for the Secretary of State that to require the local authority to plead its case in this way would largely collapse the distinction between secured and non-secure tenancies. It would give rise to the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area. In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the Defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.”
22.	The possession claim came on for trial before Mr Recorder Blunt QC in the Southampton County Court on 23rd March 2012.  By then a defence had been filed on behalf of Mr Miller denying that anyone but the defendant is in occupation of the Flat or that he had committed any breaches of the tenancy agreement but raising an Article 8 defence based on the defendant’s vulnerability as an ex-offender and drug addict; his exploitation by Snelling and others; and the Council’s failure to consider and employ alternative methods of controlling the anti-social behaviour of Snelling and the others in preference to the service of a notice to quit.  The decision to serve the notice to quit and seek possession is said in the circumstances to have been disproportionate.
23.	The Recorder expressed concern that the Council had not really addressed the public law aspects of the defence and therefore adjourned the trial to allow it to put in further evidence about its decision-making process.  The trial then took place before Mr Recorder Wood on 3rd August 2012.
24.	It was agreed by counsel who appeared at the trial that although witness statements had been filed on both sides raising the disputes of fact I outlined earlier, the hearing should proceed without any cross-examination of witnesses and the Recorder should be asked to decide the issues raised as part of the Article 8 defence on a summary basis.  The Recorder in his judgment summarises the evidence of Mrs Cresdee in the period leading up to the service of the notice to quit and the subsequent issue of proceedings, in particular the meeting which she held with Mr Miller’s probation officer on 19th May 2011.  Ms Thomas’s argument about the decision to commence proceedings both at the trial and before us was that there is what amounts to a disconnect between the decision taken on 19th May to give Mr Miller another chance and the reversal of the Council’s position on hearing that Mr Miller had re-offended.  Her case is that the Council failed properly to consider and make use of the alternative means of controlling the behaviour of Snelling and others and penalised the defendant for acts for which he is not personally responsible.  The meeting on 19th May was held against that very background in circumstances in which the Council knew that the defendant was vulnerable and could be taken advantage of by Snelling and others.  Yet they were persuaded to give the defendant another chance.  What triggered the issue of the proceedings was not any further incidents of anti-social behaviour but simply the return of Mr Miller to prison for a breach of his licence conditions.  His habitual re-offending was always a given in the Council’s consideration of him as a homeless person with a priority need and a decision to seek to evict him in effect for re-offending was both an inconsistent and disproportionate response to entirely predictable behaviour.  Ms Thomas submits that prior to the service of the notice to quit there had only been complaints about the playing of loud music at the Flat and the behaviour of Snelling and others outside the Flat towards other tenants could be controlled by ASBIs or the bringing of criminal proceedings.  After the service of the notice to quit the misuse of the Flat by others was not authorised or consented to by Mr Miller who was in prison at the time and, when out of prison, he was not adequately supported by the various agencies. 
25.	The Recorder rejected this challenge to the Council’s decision to serve the notice to quit.  He said:
“In my judgment FBC was fully justified in regarding the Flat as a nest of crime the existence and productivity of which damaged, not only the public interest generally; also, and in particular, the interests of the neighbours on all sides.  FBC is also to be sympathized with in regarding Mr Miller, the tenant at all material times and prima facie the person in control of the Flat, even if absent, as the keeper of the nest, in whose power it was at all such times to exclude troublemakers, if he was not one himself.  To my mind it is hardly surprising, having granted him a tenancy on reconsideration of his circumstances in September 2009, and having since had occasion to be concerned about goings on in or about the Flat (to put it neutrally) which undoubtedly led to the important visit to Mr Miller in June 2010 at which he was reminded of his obligations as a tenant (coupled with information from neighbours and the police, and Mr Miller’s frequent incarcerations), and that FBC felt that there was no option but to serve notice to quit on 20 April 2011.  None of the constituent elements of the situation it had to deal with is at all remarkable, as I have described it (or should be seriously controversial) and I am satisfied that to serve the notice was a reasonable and proportionate exercise of its powers of estate management having due regard to its duty under the 1996 Act to others already living in the near neighbourhood or seeking that sort of accommodation.  Insofar as matters might since have come to be seen as controversial (e.g., others living in the Flat, contrary to clause 2(d), or misbehaviour contrary to clause 2(j) of the agreement), I am satisfied that the appearance of things was such as would have struck any reasonable local housing authority as calling for action of the kind that FBC took: in my judgment Mr Miller has not got over the high threshold of establishing a seriously arguable case to the contrary.  ”
26.	I agree with this analysis.  Although Mr Miller was known to be a persistent offender and was granted the tenancy of the Flat to assist him in establishing a more stable, drug free life, the Council could not be oblivious to the use of the Flat by Snelling which Mr Miller had facilitated (even if not permitted) by handing him the keys.  The Council made what has turned out to be an entirely realistic and pragmatic assessment of the situation which is that Mr Miller cannot be relied upon to prevent Snelling and others obtaining the keys to the Flat and that, with the benefit of the keys, they will occupy and use the Flat with all the adverse consequences which have followed.  His absence in prison removed even the limited control which he might have been able to exert over the use of the Flat.
27.	The Recorder then went on to consider the challenge to the Council’s decision to issue and continue the possession proceedings.  As explained earlier, the public law defence turns largely on the meeting held on 19th May and the Council’s subsequent decision to press ahead with the proceedings once it learnt that Mr Miller had been returned to prison for a breach of his licence conditions. As Ms Thomas explained in her skeleton argument, Mr Miller’s case has always been that the Council has sought to evict him for conduct that, on their own evidence, was not his own and which he says he was both unaware of and unable to control.  His return to prison was not in itself conduct which adversely affected other tenants of Gibraltar Close and has been a constant and continuing feature of his life since before the tenancy was granted.
28.	The Recorder concentrated, however, on the legal consequences of the Council’s decision at the 19th May meeting to give the defendant what Mrs Cresdee described as another chance.  The Recorder’s analysis was as follows:
“I can infer that enough was learned about his personal circumstances at the meeting for a completely different view to be taken, as it were despite the unpromising record which had led to the notice to quit.  Having been looked into in that fashion, with the participation of the experts, Mr Miller’s case could no longer be seen in the same terms as when it had been decided to serve the notice, and the reality was that the notice was revoked at that point: FBC had a choice between following it up by taking proceedings or not, and it was not open to it to place Mr Miller in a kind of limbo, under what might be classed as a probationary tenancy at will, the notice being suspended.  Indeed, in my opinion the correct legal interpretation of the events that happened is that, the notice being revoked, the tenancy was reinstated in its original terms, as if there had never been a termination.  Alternatively, FBC would be estopped from denying that such was the case.”
29.	On this basis he decided that the Council no longer had any cause of action on which to base its claim for possession.  It had simply failed to determine Mr Miller’s tenancy.  But there are a number of obvious difficulties about this.  As Mr Glen points out, the only evidence about what occurred on 19th May is contained in Mrs Cresdee’s witness statement.  Her decision (on behalf of the Council) to give Mr Miller another chance was taken in the context of a meeting of concerned professionals, none of whom could be said to be Mr Miller’s agent in the sense of having authority to agree to some variation of his tenancy on his behalf.  Her decision in effect to stay her hand in seeking to obtain possession of the Flat was no more than that.  It was a welfare decision which depended in terms on Mr Miller staying out of prison and adhering to the terms of his licence which prevented his having any contact at or near the Flat with Snelling and the others.  Mr Miller had been warned by the probation officer that if he failed to keep to the terms of the licence he would lose his home.
30.	As a matter of law it was impossible for the Council to revoke the notice to quit.  Once served it was effective to determine the tenancy according it its terms.  Even if the Council had made an irrevocable decision not to rely on the notice the tenancy would still have come to an end: see Tayleur v Wildin (1868) LR 3 Ex 303.  The tenant’s security would therefore depend upon the grant of a new tenancy which in an appropriate case may be inferred from the landlord’s acceptance of rent after the expiry of the notice to quit.  An obvious example of this was the Council’s decision to allow Mr Miller to remain as a tenant following service of the 11th May 2010 notice for arrears of rent.  On that occasion the subsequent payment and acceptance of rent clearly evidenced the grant of a new tenancy on the same terms.
31.	Mr Miller’s contractual defence to the claim for possession cannot therefore depend on an alleged revocation of the notice to quit or on some principle of estoppel which was the Recorder’s suggested alternative.  In turns solely on whether by allowing him to remain in possession of the Flat until trial and by accepting his housing benefit as payment for his occupation in the meantime the Council evinced an intention to create a new tenancy; or to use the time honoured formula, quo animo was the rent accepted? 
32.	On the Recorder’s analysis, this question did not arise but the answer to it is, in my view, obvious.  The decision on 19th May to give Mr Miller another chance was never more than a conditional one and, once he had re-offended, the Council decided to press ahead with its claim for possession.  In these circumstances (particularly taking into account what subsequently happened at the Flat later in 2011 and 2012), it is impossible to infer from the use of housing benefit to meet the cost of providing the Flat any intention to create a new tenancy.  All the evidence indicates that this is the last thing which the Council would have wished to do.  Mr Miller has remained as no more than a tolerated trespasser to this day. 
33.	The only real issue therefore is whether the Council’s decision to press ahead with the claim for possession is either Wednesbury unreasonable or can be subject to a proportionality challenge under Article 8.  The Recorder did not address those issues at any length given his conclusions on the effectiveness of the notice to quit but he did express the view that it was not reasonable or proportionate for the Council to seek possession simply because Mr Miller had erred in what the Recorder describes as his all too characteristic way.  This is the disconnect point mentioned earlier.  His view was that it was irrelevant that dreadful things occurred in connection with the Flat after the issue of proceedings because these were largely the responsibility of Snelling and others over whom Mr Miller had no effective control.
34.	Despite Ms Thomas’s able submissions, I am not persuaded that Mr Miller has a defence to the possession claim on either Wednesbury or Article 8 grounds for the following reasons.  A Wednesbury challenge depends not on whether the decision to continue the possession claim was objectively reasonable but whether it was a decision which no reasonable authority could have taken in the light of all the relevant circumstances.  The Council had, on the evidence, given Mr Miller a second chance provided that he kept to the terms of his licence.  Even accepting (as I do) that there is a serious factual dispute as to whether and, if so, to what extent Mr Miller either participated in or condoned what occurred at or near to the Flat, it was, I think, obvious to the Council that in practical terms the risk of further problems could only be minimised if Mr Miller remained at the Flat and adhered to his licence conditions.  Given the history, this was the only basis on which the Council was prepared to stay its hand and it cannot be suggested that those terms were unreasonable in themselves.  If the Council was (as the Recorder and I have found) justified in serving the notice to quit then they were clearly entitled to take a relatively strict approach to any alternative solution which involved Mr Miller remaining in occupation. 
35.	Once the licence conditions were broken and the defendant was returned to prison the factual premise upon which the Council had made the arrangement on 19th May disappeared.  The Flat became vulnerable to occupation by Snelling and his associates with all the consequences which in fact ensued.  I do not therefore accept that the Wednesbury test was satisfied in this case or that it is irrelevant to take into account what in fact happened in 2011 and 2012.  The Council has an obligation to keep these matters under review having regard to what will be the most beneficial use of its available housing stock in the interests of all its tenants.
36.	The Article 8 challenge requires the Court to ask first whether the case surmounts the high hurdle of qualifying for a proportionality review: see Lord Hope in Hounslow LBC at [35] and [40]-[41].  This is not a case where service of the notice to quit and the claim for possession have been motivated by purely administrative considerations such as the need to re-allocate accommodation between qualifying tenants.  The decision to seek possession is driven by the need to control the effect on neighbours of what has occurred at the Flat.  To say, as Mr Miller does, that he is not responsible for that conduct does not lessen that imperative.  At most it provides a factor for the Council to consider when deciding whether the need to obtain possession outweighs any adverse impacts on Mr Miller.
37.	Although his personal circumstances need to be seriously considered, my own view is that they do not raise a sufficiently compelling case as to require a full-blown proportionality review.  The Recorder did not identify anything in this case to take it outside the ambit of a conventional balancing exercise by the Council between the interests of Mr Miller and those of the other tenants who have been affected by what has happened at the Flat.  He rejected (as I do) the suggestion that the problems could be effectively contained by other measures such as ASBIs.  In these circumstances, I cannot see how a challenge to the decision on proportionality grounds has any real prospect of success.  I would therefore allow the appeal and make an order for possession. 
Lord Justice Kitchin :
38.	I agree.
Lady Justice Black :
39.	I also agree.