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Pinnock (Appellant) v Manchester City Council (Respondent) [2010] UKSC 45

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 [2004] 1 AC 983 and Kay v Lambeth [2006] 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: 

  1. article 8 only comes into play where a person’s “home” is involved; 
  2. as a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned; 
  3. any article 8 defence should initially be considered summarily; 
  4. even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether;
  5.  the conclusion that the court must have the ability to consider the article 8 proportionality of making a possession order may require certain statutory and procedural provisions to be revisited; and 
  6. article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or a physical disability. 

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 [2009] 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


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