This jointly heard appeal is the first time that the Court of Appeal has considered and applied the principles set out in Pinnock v Mancester CC  UKSC45 and Powell v Hounslow LBC  UKSC 8 that 'only in "very highly exceptional cases" will it be appropriate for the court to consider a proportionality argument'.
S was an introductory tenant (under sections 124-130 of the Housing Act 1996), whilst H was an Assured Shorthold Tenant, with a 'starter tenancy' (governed by sections 19A- 21 of the Housing Act 1988). In each case, the purpose of the tenancy was to see whether the tenant would be an appropriate person to enjoy security of tenure in social housing. In neither case did the tenant have statutory security of tenure, save that the landlord had to serve a notice seeking possession in the County Court. In practice under a starter tenancy, and under statute under an introductory tenancy, the landlord has to have a good reason before deciding to seek possession, and the tenant has a right to seek a review of that reason and decision. Neither tenant had a domestic law defence, but both invoked Art. 8.
The CA made numerous observations in particular that:
A judge should be rigorous in ensuring that only relevant matters are taken into account on the proportionality issue. The fact that the tenant had been subject to a murderous attack was irrelevant to the issue of proportionality, when there was no suggestion in the judgment or even in the evidence, that the attack resulted in mental or physical injury which would render it particularly harmful to the tenant to be evicted.
It would be difficult to think of circumstances where the fact that the tenant, paid off the rent arrears at the last minute could carry significant weight in the Art.8 proportionality argument.
In the absence of extraordinary facts, it seems fanciful to suggest that a residential occupier should be able to 'pray in aid' the fact that they have paid the landlord money which they owed them, as a significant factor which enable them to cross the high threshold identified in Pinnock and Powell.
As explained in Pinnock exceptionality is a measure of outcome and a useful cross-check for a judge after reaching a preliminary decision in a particular case that Art.8 can be invoked.
However, a problem with using exceptionality as a test is that it may distract a judge from the question of relevance.
Art. 8 is primarily concerned with respect for a particular home, as opposed to a general right to be provided with a home. The right to be re-housed is a factor to be weighed against an Art.8 claim prevailing.
The prospects of an Art.8 argument succeeding are very much dependent on the facts of the particular case.
A judge should not let understandable sympathy for a particular tenant have the effect of lowering the threshold identified by Lord Hope in Powell, paras 33 and 35.
The CA also emphasised the 'significant height' of the Art.8 threshold and "how exceptional the facts relied on by any residential occupier must be, before an Art.8 defence can have a real prospect of success."
The CA refused to give guidance on the procedure to be adopted in possession cases where the tenant raises Art.8 stating that they did not have the information available to give such guidance. They said that different courts might have good reasons for adopting slightly different practices; one procedure may be possible and practical on one day (e.g. when the judge concerned has a very light list) but not on another (when the judge is over-listed); the particular facts of a case, or type of case, may justify a particular procedure which would be inappropriate for another case, or type of case.
The only specific point the CA would make was to emphasis the desirability of a judge considering at an early stage (normal on the basis of the tenant's pleaded case on the issue) whether the tenant has an arguable case on Art. 8 proportionality, before the issue is ordered to be heard. If it is a case which cannot succeed, then it should not be allowed to take up further court time and expense to the parties, and should not be allowed to delay the landlord's right to possession.
The practical effect of this case is that it underlines the fact that following Pinnock and Powell the threshold in Art.8 proportionality arguments is extremely high and can only be crossed in very exceptional circumstances.
/ 1st Apr 2012
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