New Judgment: Birmingham City Council v Frisby; & conjoined cases  UKSC 8
23 Wednesday Feb 2011
On appeal from:  EWCA Civ 336
The issue was whether, in circumstances where the occupier was not a secure tenant, a court must consider the proportionality of making an order for possession. The Court unanimously held that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of ECHR, art 8: such a requirement would collapse the distinction between secure and non-secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought.