A British High Court judge has accused officers at Southwark Council, London, of conspiracy to cause harm to a council tenant by unlawfully destroying his possessions and an illegal eviction. The council has been forced to compensate the tenant, AA, left street-homeless without income or possessions by the eviction, for an unknown sum. AA’s original claim was for £2.4m.
The judge, Anthony Thornton QC, in AA v London Borough of Southwark, said council officers were determined to secure the eviction “whether it was lawful or not”. As a result officers and the council itself were liable for misfeasance in public office. “They had limited prospects of evicting him lawfully and they therefore appear to have embarked on an eviction with the intention of evicting AA even though this could not be done lawfully.”
The entire contents of AA’s flat in Peckham, including his passport, laptops, papers, personal belongings and furniture were removed and illegally destroyed in a refuse disposal facility. The court heard that AA had made repeated attempts in the High Court and County Court to regain possession of his flat and to regain his belongings and also tried to discuss his predicament with council officials. As a result of his eviction he was street homeless for more than a year except for the use of a sofa or floor space in friends homes for part of the time. His only income was financial assistance from those friends.
AA is British of Sudanese origin and came to Britain as a refugee in 1985. The court heard that since then he has mainly been involved in charity work on behalf of Sudanese children and orphans caught up in the conflicts there.
In the 1990s he was in trouble with the police after they confiscated his car full of material belonging to one of the charities he set up, the African Children Society. An altercation with police led to a conviction for assaulting two police officers. This was later quashed. The car and ACS material were never returned, forcing the charity to cease operating.
AA pursued legal action against the police for wrongful arrest and in a separate case a defamation action. The time spent on this litigation meant he had little income at the time except for Housing Benefit and Jobseekers Allowance.
His tenancy with the London Borough of Southwark commenced in 2001 with his rent largely covered by housing benefit except for an additional amount he had to find from other sources. Arrears built up from an early stage and fluctuated over the years with consequent legal action against him. In 2013 arrears had reached £2,353.26 plus £485 court costs – though AA cited a lower figure of £1,400 in part because he said automatic Housing Benefit payments and other payments had not been registered.
The judge noted: “It would appear from the evidence given to Mr Matthews during his inquiry [into the affair subsequently] that the income and resident officers worked together but there was no structure or clear pattern of working with tenants such as AA who had persistent rent arrears which were significant but which not did not call for immediate attention.”
The law is that: “A landlord may only bring a secure tenancy to an end for non-payment of rent by obtaining an order for possession under section 82(1) of the Housing Act 1985 (‘HA’) and then, if the tenant fails to leave the tenanted property voluntarily, applying for the issue administratively of a warrant of execution by the court which a court bailiff must then execute.” (Para 45) The court has wide discretion to stay or suspend or postpone the order once it is granted:
“The court should bear in mind that article 8 of the Human Rights Act [in Schedule 1: right to respect for privacy and family life] requires consideration of whether the tenant has committed a sufficiently serious breach of the terms of his tenancy and of any court order to make it reasonable to evict the tenant from his home. A particular consideration is whether his non-compliance with the conditions of any suspension shows that the eviction of the tenant from his home is an unduly severe step to take.” (Para 52)
Since the original eviction order had been suspended more than six years before the council wished to execute it (in 2007), it was not entitled to apply for a warrant, an administrative procedure that did not involve a judge, without first obtaining permission to apply from a judge. Thornton said: “The starting point was the defendant’s conspiracy involving three of the defendant’s [Southwark’s] employees in the housing department to the effect that the claimant should be evicted at all costs and without the opportunity to obtain a further suspension of the possession order obtained in November 2006.” He added:
“Having obtained the warrant, the defendant’s housing officer failed to place the full facts of the case to the court at the hearing of the claimant’s application for a further suspension. The conspiracy also involved the relevant defendant’s housing officers short-circuiting the defendant’s standard procedures that should have been followed before and during the execution of the warrant and the taking of a dispossessed tenant’s possessions into storage for safe-keeping. These procedures were intended to ensure that any execution of a warrant for possession was fairly, safely and lawfully undertaken. The conspiracy continued as an attempted cover-up of the unlawful nature of the original conspiracy and of the unlawful consequences of that conspiracy that had led to the claimant’s unlawful eviction, the destruction of the claimant’s possessions and his homelessness without financial resources for a lengthy period.” (Para 6)
Thornton said “Mr [Brian] Davis, Ms [Christiana] Okwara and Ms [Johanna] Ashley [council officers] exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive. They each acted with the intention of harming AA be evicting him when there were no reasonable grounds for evicting him and by arranging for his possessions to be seized and destroyed unlawfully. Each is, in consequence liable for misfeasance in public office and the London Borough of Southwark is vicariously liable for the commission of that tort.” (Para 294)
He was scathing about two of the officers’ behaviour: “Mr Davis and Ms Okwara were determined to obtain AA’s eviction whether it was lawfully obtained or not. Their motive in acting as they did was demonstrated to be an ‘eviction at all costs’ motive. There is no other explanation for Ms Okwara’s delay in attempting to notify AA of the date of the eviction, in only half-heartedly attempting to carry out a home visit, in apparently hiding the relevant documentation from the Housing File and in making no attempt to obtain the permission of a judge to apply for a warrant.
“Equally, there is no other explanation for the series of lies that they told Mr Matthews about the telephone calls they made during the eviction and in deliberately engineering an eviction at which neither the income nor the resident officer were present and in making no effort to identify AA’s possessions, prepare an inventory of them and then remove them safely to storage.” (Para 281)
Kafka-esque hardly covers it. The snuffing out of an identity – for what else is the destruction of passport, documentation, laptop, containing much that constitutes who we are in the modern wired world? Consider how one would try to recollect and reconnect from the position of a street-homeless person of clearly foreign origin – the most alienated people in our cities. How hard it would be to reassert one’s Britishness or prove who one is in the multiple meetings with officialdom that would be required just to get by. Kafka’s K and Southwark’s AA have much in common – their anonymity is more than in name alone.
A single homeless man is due the bare minimum under our welfare state – but for a man threatened with eviction from his lawful home there are at least some legal safeguards in place. Destroying his property at this point is unlawful.
A resident officer (Ms Ashley in this case or a replacement) should have been on hand to take an inventory and it should be held safely for a month (albeit a charge can be levied for doing this). In addition an income officer from the council must attend when the bailiffs undertake the eviction. The income officer should already have been involved in trying to help the defaulter pay (including advising on benefits) and should have made a pre-eviction visit well in advance of the eviction date to ensure the tenant is aware that the eviction is to occur.
Judge Thornton said: “All these considerations [of the evidence] point to Ms Okwara and Ms Ashley agreeing in a private exchange that no resident officer would attend AA’s eviction and that since this arrangement was a flagrant departure from the EP [Eviction Procedures], it would be masked by Ms Okwara ‘notifying’ Ms Ashley of the eviction and she, in turn would not attend or arrange for someone else to attend and instead state if asked that she had assumed that all that the email was doing was notifying her of the time and date of the eviction without it being a request for her to attend.”
There is worse evidence: false letters, a false excuse about why the eviction went ahead without officers. Thornton noted of evidence given to Mr Matthews’ inquiry into the case: “In short, the relevant individuals’ inconsistencies and prevarications highlighted their apparent attempts to exculpate themselves rather than to tell the truth.”
• For those interested Civil Litigation Brief extracts the procedural matters from the case
Interestingly it is the staunchly Tory Daily Telegraph that has shown most interest in this case – perhaps because Southwark is a Labour council and it plays to the Right’s campaign against public sector officiousness and oppression. This seems to have trumped the fact that AA was originally an asylum seeker, was chronically in arrears and had been in trouble with the police – not usually the sort of person to attract Telegraph sympathy.
Which raises an important issue. Among Southwark’s numerous legal breaches enumerated by the judge (conspiracy, misfeasance, negligence, breach of the covenant of quiet enjoyment, breach of the Torts (Interference with Goods) Act 1977 , breach of the Local Government (Miscellaneous Provisions) Act 1982 on lost goods) there is also a heading for Article 8 of the first Schedule to the Human Rights Act (on privacy and family life). This act is how people in Britain can access European Convention rights through British courts rather than going to the expense of taking a case all the way to Strasbourg. And it is the Act that the Conservative party has promised to repeal.
Instead it looks as if the Tories want a wholly contingent set of rights via a UK Bill of Rights – which in all likelihood would deny a human rights claim to someone like AA. A preliminary version of this was brought to Parliament by Tory barrister Charlie Elphicke and is examined here: Conservative Bill of Rights: the State v the People. Under the new order a judge would be able to deny an applicant his or her human rights if it is not “reasonable” to allow them “in all the facts and circumstances of the case”.
One assumes a judge in the case of AA would regard the behaviour of the council officers as wholly unreasonable – but among the “facts and circumstances” a judge would be required to look at is the character of the applicant “including the conduct of the person seeking to assert the UK right (including his adherence to the responsibilities set out in Article 23 of Schedule 1)”.
Article 23 includes (a) obeying the law; (e) seeking to support himself without recourse to a public authority to the best of his ability, including but not limited to seeking work or gainful employment where he is able; and (f) rendering help to other persons who are in need of assistance, where reasonable and to the best of his ability, including but not limited to help for elderly or disabled persons.
AA has a conviction against him for which he was sentenced to six months in jail; it might be said he failed in his duty to limit recourse to benefits, spending too much time on charity work and studying – not to mention on his various tortuous pieces of litigation against various public authorities. In mitigation, under (f) he has sought to help Sudanese children – but so little regard was that work held in that, according to evidence, the police put a stop to it by removing his car and his papers relating to his charity.
So AA may have been the victim of a Kafka-esque public authority – but there may be something worse coming down the line for everyone.