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This decision is the long awaited sequel to Manchester CC v Pinnock [2010] UKSC 45, [2010] 3 WLR 1441 (case comment here) where a nine-judge panel of the Supreme Court held (in the context of demoted tenancies under the Housing Act 1996, Pt V, Ch 1A) that where a local authority bring possession proceedings relying on a mandatory ground for possession, any defence to that possession claim can include the occupier’s entitlement to have the proportionality of his eviction assessed by a court under the Human Rights Act 1998, Sch 1, art 8 despite his entitlement to remain having ended as a matter of domestic law. Such an assessment should only occur if the issue is raised by the occupier and is summarily determined as seriously arguable. The decision in Pinnock left a number of questions unanswered. How ought the county courts deal with an Art 8 defence in practice? Could and/or should other statutory mechanisms be read down in the way the Supreme Court had seen fit to do in relation to the demoted tenancy scheme (i.e. to read into s 143D of the 1996 Act the word “lawfully” which opened the door to a consideration of proportionality).  Moreover, was the statutory restriction under the Housing Act 1980, s 89 (which prevents a court from postponing the giving up of possession beyond six weeks), incompatible with Art 8 or capable of being read down?

The Supreme Court in Pinnock deliberately left these matters to be ventilated in Powell, principally because the latter concerned both the introductory tenancy scheme in Part V, Ch.1 of the 1996 Act and non-secure tenancies granted under the homelessness regime in Part VII of the 1996 Act, both of which are far more common forms of tenure than demoted tenancies.

Background Facts

Hounslow LBC v Powell

Mrs Powell applied to Hounslow LBC as homeless.  The council were satisfied that they owed her the full duty to secure accommodation for her and her family under the Housing Act 1996, s 193(2) and, on 2 April 2007, they granted her a licence which was excluded from the security of tenure provisions of the Housing Act 1985 and therefore terminable by notice to quit.  Ms Powell fell into rent arrears and Hounslow served a notice to quit and commenced possession proceedings.  Ms Powell admitted the rent arrears but claimed they were caused by errors and delays in claiming housing benefit.  The county court made a possession order but execution of that order was stayed as Ms Powell was granted permission to appeal.

Leeds CC v Hall

On 21 April 2008, Leeds CC granted Mr Hall an introductory tenancy.  As a result of complaints about noise nuisance and other anti-social behaviour, a noise abatement notice was served, against which Mr Hall did not appeal.  Complaints continued to be received and, on 6 March 2009, Leeds served a notice of proceedings for possession under s 128 of the 1996 Act.  Mr Hall sought a review which was unsuccessful and Leeds commenced possession proceedings.  At a hearing on 6 August 2009, Mr Hall raised no challenge to the validity or appropriateness of the notice but requested that the court consider whether matters which had occurred after the service of the notice could provide a basis for challenging Leeds’ decision to seek possession.  The judge held that he could not consider such matters owing to the mandatory nature of the proceedings and made a possession order.  The judge gave Mr Hall permission to appeal and stayed execution of the warrant in the meantime.

Birmingham CC v Frisby

On 23 April 2007, Birmingham CC granted Mr Frisby an introductory tenancy.  As a result of complaints of noise nuisance, a noise abatement notice was served under s.80, Environmental Protection Act 1990.  Mr Frisby did not appeal against this notice.  The complaints continued and, after extending the introductory period of the tenancy, Birmingham served a notice of possession proceedings.  Mr Frisby requested a review but failed to attend an adjourned hearing of that review and, in his absence, the decision to seek possession was upheld.  Birmingham issued possession proceedings which Mr Frisby defended on the basis the review decision was unlawful.  The District Judge struck out the defence but stayed the claim pending an application for judicial review of Birmingham’s decision to seek possession.  Mr Frisby was given permission to appeal and the matter was leap-frogged to the Court of Appeal.

The Court of Appeal (in Salford CC v Mullen [2010] EWCA Civ 336; [2011] 1 All E.R. 119), being bound at the time by the decisions in Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465, and Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367, dismissed the appeals but gave permission to appeal to the Supreme Court.

Issues on appeal

In the Supreme Court, the appeal gave rise to four main issues, namely:

1) what is the form and content of an Art 8 proportionality review;
2) what procedural protections are implicit in Art 8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced;
3) can s 127(2) of the 1996 Act be read compatibly with the introductory tenant’s Art 8 rights, so as to allow a defence to be raised on Art 8 grounds; and
4) can the court defer the delivery of possession beyond the six week period permitted under the Housing Act 1980, s 89 if it considers it to be the proportionate course and, if not, should there be a declaration of incompatibility?

    Judgment

    Form and content

    Lord Hope and Lord Phillips gave judgments with which the other Justices agreed.  After summarising the statutory background to the cases, Lord Hope affirmed the approach set out in Pinnock, namely that a court should consider proportionality if the issue is raised by an occupier and has passed the high threshold of being “seriously arguable” (i.e. seriously arguable that the Art 8 defence could affect the order that the court might make).  This should be determined summarily.

    When dealing with an Art 8 defence, the first step for the court is to assess whether the property of which possession is sought constitutes the occupier’s home.  This will depend on “. . . the factual circumstances, namely the existence of sufficient and continuous links with a specific place”: Paulic v Croatia (App. No. 3572/06).  In the majority of cases, where the occupier was lawfully in occupation, this was likely to be satisfied. A property was only not likely to be a home where a defendant had recently moved into accommodation on a temporary or precarious basis.

    Secondly, the court should determine whether the making of an order for possession is a proportionate means of achieving a legitimate aim.  The legitimate aim for local authorities is provided by the fact that the making of a possession order serves to vindicate their ownership rights and enables them to comply with their public duties to allocate and manage their housing stock.  The court should always take these aims for granted.  Thus, in the overwhelming majority of cases, there will be no need for a local authority to explain and justify its reasons for seeking possession.  The court should only be concerned with the occupier’s personal circumstances and any factual objections which are raised.

    Procedural protection

    Lord Hope was reluctant to set down strict procedural guidance in homelessness cases, principally because “. . . the way claims should be dealt with procedurally are best addressed in light of the facts and circumstances arising from the way proceedings are actually being handled in practice.  Otherwise there is a risk that such guidance as this Court can give will create more problems than it will solve.”  His Lordship noted that there was no statutory obligation to give reasons with the notice to quit in homelessness cases and that the local authority did not have to justify its motives in seeking possession.  In relation to introductory tenancies, (where ordinarily a claim for possession is accompanied by a witness statement setting out procedural compliance with the provisions of the Act and explaining the authorities reasons for continuing to seek possession: R (McLellan) v Bracknell Forest BC [2002] QB 1129 per Waller LJ at [103]), His Lordship declined to set out a revised list of requirements to be included in such affidavits and observed that such matters were more appropriate for a practice direction.

    Introductory tenancies

    Lord Hope held that the Supreme Court’s approach to reading down the demoted tenancy scheme (i.e. by reading in the word “lawfully” and by the application of the Human Rights Act 1998, ss 3(1), 7(1)(b)) was equally applicable to the introductory tenancy scheme.  Consequently, the Court refused to make a declaration of incompatibility.

    Housing Act 1980, section 89

    The Court observed that s 89 could not be read down in the same way as the above statutory schemes because s 89 expressly prohibited the exercise of the extended powers given to a court in relation to secure tenancies. In any event, there was insufficient evidence to demonstrate that the maximum period of six weeks was insufficient to meet the needs of cases of exceptional hardship.  Consequently, the Court refused to make a declaration of incompatibility. It was noted that s 89 did not take away the court’s case management powers to adjourn where a legitimate case management reason existed.  Lord Hope stressed, nonetheless, that a court could not “. . . play for more time by suspending or staying [the possession order’s] effect so as to extend the time limit beyond the statutory maximum”.

    Disposal of the appeals

    In light of the decision in Pinnock, Hounslow had offered Ms Powell suitable alternative accommodation and Leeds had offered Mr Hall a secure tenancy of his property on the basis the complaints had ceased.  The Supreme Court allowed these appeals because no purpose was served by maintaining the possession orders and respective notices which precipitated the proceedings.  Lord Hope noted that, but for Hounslow’s offer, he would have been minded to remit the claim to the county court for an assessment of proportionality.  Moreover, he would have been minded to dismiss Mr Hall’s appeal on the basis that nothing had been put before the court to suggest his Art.8 defence was seriously arguable.  Birmingham made no offer to Mr Frisby and argued that the appeal should be dismissed as Mr Frisby had given no indication of the issues he wanted to raise in respect of proportionality, he had not taken the opportunity of applying for permission to judicially review Birmingham’s decision to seek possession, nor had he appealed against the noise abatement notice.  The Supreme Court dismissed Mr Frisby’s appeal for those reasons.

    Comment

    This judgment is the rather quiet culmination of the line of authorities referred to in the case comment in Pinnock (above).  It is unsurprising that introductory tenancies have been treated in the same way as demoted tenancies given the similarities in their respective legislative schemes.  The Supreme Court did not consider it appropriate to treat either introductory tenancies or tenancies granted to the homeless as special categories where proportionality was e.g. taken as read in all cases.

    The judgment clarifies to a certain extent to procedure to be followed by the county courts dealing with busy lists but it is questionable how these principles will be applied in the immediate aftermath of the decision.  Local authorities particularly will be keen to see how the “summary” assessment is carried out.  It is expected that where issues of proportionality are raised in a five-minute hearing in a busy list, judges will be highly likely to adjourn cases for fuller argument until there is a greater familiarity with the legal principles and approach to be taken.

    Moreover, despite the expectations of the Supreme Court, it is anticipated that far more cases will exceed the “high threshold” of being seriously arguable such as to necessitate a trial of those facts which are disputed or pleaded in support of a proportionality defence.  For those who represent occupiers, the availability of public law defences is likely to be of far greater substantive benefit than a straightforward proportionality defence.