In 1978 the Respondent (R) granted the Appellant (P) a tenancy of a house in which he lived with his partner and their five children.
As a result of anti-social behaviour R was granted a demotion order on 8th June 2007 which converted P’s secure tenancy to an insecure demoted tenancy. Further acts of anti-social behaviour were committed and R terminated the demoted tenancy and sought possession. A possession order was made by the County Court judge; the Court of Appeal dismissed P’s appeal and he appealed to the Supreme Court on the question of whether article 8 of the ECHR (“article 8”) required UK courts to consider the proportionality of evicting an occupier from his home in claims for possession by local authorities and, if so, whether the demoted tenancy regime in the Housing Acts 1985 and 1996 could properly be interpreted so as to comply with the requirements of article 8.
The Court found that there is (now) a “clear and constant line of jurisprudence of the European Court of Human Rights” such that it could “depart from the previous line of the House of Lords authorities” (in particular Harrow v Qazi  1 AC 983 and Kay v Lambeth  2 AC 465) and that a court “must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact”.
The Court made 6 general points in relation to possession claims brought by local authorities:
The Court concluded that it was possible to read and construe the operative sections of the 1996 Act so as to permit the court to review the proportionality – in this context equated to reasonableness - of a landlord’s decision to seek possession and, if necessary, to make its own assessment of facts in dispute. Section 7(1) of the Human Rights Act, provided County Court judges with the necessary jurisdiction to carry out the article 8 proportionality review. It therefore followed that the demoted tenancy regime is compatible with the Convention.
Whilst the decision appears to apply only to “local authorities” in the wake of Weaver  EWCA Civ 235 it will probably apply to other social housing providers. The Court attempted to limit the affect of its decision by emphasising that it did not apply to claims for possession made by private landlords; and by expressing its view that where a tenant’s right to remain in occupation had ended, it would only be in a small number of cases that he would be able to rely on a proportionality defence.
The Court went on to consider the application of their conclusions to Mr Pinnock’s case and conducted a proportionality review. The Court concluded that this was not a case where there was a dispute of facts that needed to be resolved and were not persuaded that this was a case where there was any real prospect of success on article 8 proportionality.
Erol Topal / 2nd Dec 2010
The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.
If you like what you've read but want to know more about how we can help you, simply call us:
Alternatively you can send us an email and a member of our team will contact you as soon as possible.