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Proportionality and its application to social housing possession cases rears its head again.

In Manchester City Council v Pinnock [2010] UKSC 45, in respect of possession orders sought by public authority landlords, 9 Supreme Court Judges bowed to the repeated insistence of the ECtHR that people facing eviction from their home are entitled to have the proportionality of the decision to evict them assessed by a court.

Pinnock concerned a demoted tenancy. Inevitably, their Lordships were recently troubled with how Pinnock applies to possession of other non-secure tenancies. 

In London Borough of Hounslow v Powell, Leeds City Council v Hall, Birmingham City Council v Frisby [2011] UKSC 8, 7 Supreme Court Judges held unanimously that (per Lord Hope, Lord Phillips’ speech “add[ing] some comments of my own”) – 

  1. A court would only have to consider whether the making of a possession order was proportionate for the purposes of Art 8 of the European Convention on Human Rights if the issue had been raised by the occupier and it had crossed the high threshold of being seriously arguable. That threshold would be crossed in only a small number of cases. The question then would be whether making an order for the occupier's eviction was a proportionate means of achieving a legitimate aim; 
  2. Two “stock” legitimate aims would be that the order would (a) serve to vindicate the authority's ownership rights, and (b) enable the authority to manage its housing stock; 
  3. Housing Act 1980, s89, removed the court’s common law discretion to select whatever length of postponement it thought fit, it did not take away from the court its ordinary powers of case management. The court could not, however, if it decided to make an order for possession, allow more time by suspending or staying its effect, extending the time limit beyond the statutory maximum. 

Does Frisby take us anywhere beyond Pinnock? Unsurprisingly, it confirmed that the concept of proportional possession applies not only to demoted tenancies but also homelessness (Powell) and introductory tenancy schemes (Hall and Frisby). 

One effect of the judgment may be that in future tenants fight possession proceedings when they would have argued previously they should be given more time beyond the six weeks allowed in exceptional circumstances under s89. The Supreme Court has closed the door on extending time in the oft-encountered situation where a tenant accepts they must go but, for genuine reasons, need longer to move. Will this now bring such tenants in to the realm of being able to question the proportionality of the possession decision? 

The post-Pinnock, post-Frisby world for the public sector would appear to be – 

  1. Article 8 is always engaged when a home is being made subject of a possession order. A tenant can ask the court to consider whether an order is proportionate. JR is not the appropriate forum; 
  2. Where “reasonableness” is a precondition to granting possession (i.e. secure tenancies, assured tenancies etc), the process inevitably involves a suitable balancing act under Article 8; 
  3. Where possession is automatic and mandatory – any non-secure tenancy, a “s 21” Notice on an assured shorthold tenancy or a mandatory Ground 8 claim (although these have not yet been tested) etc. – then Article 8 could afford a defence. The County Court judge will do the best s/he can, the presumption being that the correct balance is struck in the statute or domestic law, with the two “stock” legitimate aims usually sufficing;
  4. The circumstances where an Article 8 defence exists will be rare, the threshold very high. 

At least two issues remain. First, the thorny issue of how this applies to private sector landlords (for example section 21 Notices and / or the accelerated possession procedure) – the court being the public body for the Article 8 right. Second, the practical issue arises that, anecdotally at least, the defence is being used in standard possession claims, and district judges are arguably not using their discretion and considering whether the threshold is crossed at a first hearing. A first hearing is, of course, inevitably only five minutes, which is on any basis insufficient time for a judge to “do the best s/he can”. If nothing else, confirmation in Frisby that the threshold would be crossed in only a small number of cases may persuade judges properly to deal with such cases summarily.

/ 1st Apr 2011


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