Finding a way to possession: UCH v MB

As discussed in this post by Daniel Clarke, Practice Direction 51Z imposes a stay on all possession proceedings. Paragraph 3 makes clear, however, that claims for injunctive relief are not subject to that stay. The decision in University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB) provides an indication of how paragraph 3 can be used. 

The facts of MB are unconventional for a possession claim. MB was not resident in a house or flat but in a hospital ward. She was considered medically fit for discharge, but refused to leave the hospital. Following the outbreak of Covid-19 and the government guidance on 19 March that all patients medically fit for discharge were to be cared for at home, MB was given a written discharge notice that she would be discharged to a flat on 23 March and would receive 3 months of 24-hour care, after which the care provision would be reviewed. MB refused to leave the hospital until she received a guarantee that the 24-hour care would remain in place for a year and until she received various assurances about the care providers. She was issued with a letter terminating her licence to remain at the Hospital. 

On 2 April 2020, the hospital commenced possession proceedings, asserting that it was imperative for her to be discharged because her bed was needed for critically unwell patients and there was a risk of her contracting Covid-19 while in hospital. 

In legal terms, MB had become a trespasser because her lice to occupy had been terminated. Possession was therefore governed by Part 55 (Barnet Primary Care Trust v H [2006] EWHC 787 (QB)) and the effect of PD 51Z was to stay any such proceedings.  The court itself highlighted Practice Direction 51Z to the parties and the express exclusion of applications for injunctions. 

The hospital made an application for an interim injunction excluding MB from the hospital. MB resisted that application on the procedural ground that an interim injunction would be inappropriate because further expert evidence about the need for her to remain in hospital was needed and on various public law grounds - (a) that the injunction would amount to a breach of her rights under article 3 because without a commitment to 24-hour care for at least 12 months she would commit suicide;  (b) that the injunction would violate her rights under article 8; (c) that the decision to decline in-patient care  discriminated against her on the grounds of her disability.

The court granted an interim injunction to remove MB from the ward and exclude her from the hospital. A hospital is no different from any other owner of land seeking to enforce their private law rights and was therefore entitled to an injunction to enforce its rights as against a trespasser – Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780. 

The arguments which the defendant had advanced demonstrated no defence to the action in substance. There was no requirement for further expert evidence as the question that MB was medically fit for discharge was a matter of clinical judgment. There was no violation of article 3 as the risk of suicide was moderate to low – MB complex mental health difficulties means that she frequently suffered from extreme distress whether in hospital or not and at home she would have 24 hour care that would note any deterioration in her mental health. Nor did article 8 assist as the interference with those rights clearly fell within the wide margin of appreciation enjoyed when allocating limited state resources (R (McDonald) v RB of Kensington & Chelsea [2011] UKSC 33, [2011] HRLR 36). There had been no discrimination. 

The decision, on its facts, is not surprising: the problem of bed-blocking has long been a matter of notoriety; the current public health crisis galvanises the need to discharge wherever possible and in those circumstances seeking possession of a London hospital bed was always pushing at an open door. 

What is more interesting, is the willingness of the court to entertain the exception to the stay on possession. Clearly the right to evict by injunction applies to landowners who’s property is occupied by trespassers, but there are further powers – most notably in section 13 of the Anti-social Behaviour, Crime and Policing Act 2014 – that permit exclusion from a home where there has been anti-social behaviour which includes either actual or threatened violence. Closure orders are also available under section 80 of the 2014 Act where there has been disorderly, offensive or criminal behaviour and can prohibit access to a property by the tenant. 

Will landlords seek to utilise those powers? As lockdown continues for a further three weeks, it seems highly likely that cracks that have been papered over to cope with the effect of the Coronavirus Act 2020 (discussed by Jim Shepherd and John Hobson in a previous post) will begin to emerge and the priority afforded by the courts to injunction applications may prove too tempting to some landlords and landowners.   

A number of peripheral matters are worth noting – 

(i) The degree of judicial intervention – it was the court who highlighted both the PD and the ability to request an injunction, the court asked the parties to “address a series of questions of law and authorities identified by me as relevant and sent to them by email prior to the hearing”. That is a more inquisitorial approach than adversarial. 

(ii) The court’s implied questioning as to whether the Practice Direction precluded the hearing of the application for an interim injunction. There is no suggestion on the face of the PD that it does (although there is no suggestion that it does not either) but the argument remains. 

(iii) The ability of the local authority – in normal times – to find a property in fairly short order and make it available for MB.