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Having grappled (in its former guise as the House of Lords) for some years with the extent to which the European Convention on Human Rights, art 8, provides a defence to possession proceedings in circumstances where the court is mandated, under domestic legislation, to grant an order for possession, the Supreme Court has determined (in the context of demoted tenancies under the Housing Act 1996) that, where a possession claim is brought by a public authority, such a defence includes an entitlement to have the proportionality of the eviction assessed by a court. The Panel was comprised of nine-judges, namely: Lord Phillips (President), Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Neuberger and Lord Collins.
Background Law
This judgment forms part of a long line of House of Lords and Supreme Court authorities beginning with Qazi v Harrow LBC [2004] 1 AC 983, [2003] HLR 75, winding its way through, amongst others, Kay v Lambeth LBC [2006] 2 AC 465; [2006] HLR 22, and Doherty v Birmingham CC [2009] 1 AC 367; [2008] HLR 45, and continuing with the recent Supreme Court hearing in Frisby v Birmingham CC (judgment awaited – see case summary here).  These decisions considered, in varying contexts, whether a defendant in possession proceedings was entitled to an assessment of the proportionality of his eviction, in circumstances where the domestic legislation required the court to make an order for possession without any regard being paid to the defendant’s personal circumstances and/or the reason for seeking possession.

In Kay, the majority held (in the context of trespassers) that domestic law was compatible with ECHR, arts 6 and 8, because a defendant had the opportunity of (a) challenging the compatibility of legislation with art 8, and (b) raising (in the county court pursuant to the principle in Wandsworth LBC v Winder [1985] AC 461) what amounted to a public law challenge to the decision to evict. Any defence based on personal circumstances alone was liable to be struck out and it was only in exceptional circumstances that an art 8 defence would be successful.

In Kay’s wake came the decision of the European Court of Human Rights in McCann v UK (App No 19009/04) [2008] HLR 40, which held that eviction was a most extreme form of interference with the right to respect for the home under ECHR, art 8 and that in such circumstances, an occupier was entitled to have the proportionality of the eviction assessed by an independent tribunal. The Supreme Court considered this decision (amongst other ECtHR authorities) in Doherty v Birmingham CC. It affirmed the test in Kay, with some modification (in particular the ability of the court – on reviewing the decision to evict – to determine any relevant disputes of fact). The ECtHR issued a number of further decisions which confirmed the reasoning in McCann, not least of which was the decision in Kay v UK.  Nonetheless, in Kay, the ECtHR suggested that the availability of a public law challenge, suitably modified to enable a court to determine disputed issues of fact per Birmingham CC v Doherty, may be sufficient to render domestic law compliant with arts 6 and 8.

Background Facts
Manchester City Council had granted Mr Pinnock a secure tenancy of a property in its area in 1978.  Mr Pinnock lived at the property with his partner and, at varying times, with one or more of their five children.  There had been a long and torrid history of anti-social behaviour by Mr Pinnock’s partner and his children, though Mr Pinnock was never found to have engaged in anti-social behaviour himself.

As a result of the anti-social behaviour, the council brought possession proceedings against Mr Pinnock.  At first instance, the court noted that Mr Pinnock himself was blameless and thus refused to make a possession order (whether outright or suspended on terms).  Instead, the judge made an order demoting the tenancy under the Housing Act 1996, Pt V. This had the effect of replacing the former secure tenancy under the Housing Act 1985 with a new tenancy subject to a procedure for recovering possession which, if satisfied, enabled the council to obtain a mandatory outright possession order. Having demoted the tenancy, the judge ordered that the following become covenants of the new tenancy:

“4.1 You are responsible for the behaviour of every person (including children) living in or visiting your home . . .
4.2 You (or anyone living with you, or visiting your home) must not cause a nuisance, annoyance or disturbance to any other person . . .
4.3 You (or anyone living with you, or visiting your home) must not harass any other person . . . ”

After the tenancy was demoted, two of Mr Pinnock’s sons engaged in further serious anti-social behaviour for which they were subsequently convicted (including one son causing death by dangerous driving).  The council served a notice of possession proceedings under s 143B(3) and Mr Pinnock sought a review.  After service of the notice and before the review hearing, Mr Pinnock’s son was convicted of burglary in the vicinity of the property.  On review, the council had regard to the anti-social behaviour perpetrated before the notice was served as well as that which had come to light afterwards and decided to proceed to evict Mr Pinnock.  The council asserted that the anti-social behaviour complained of constituted a breach of the covenants imposed in the demotion order.

The council issued proceedings which Mr Pinnock defended, inter alia, on the following grounds:

a)    the procedure for recovering possession in respect of a demoted tenancy was incompatible with ECHR, art 6;
b)    there had been no breach of the tenancy agreement because neither son lived at the property;
c)    the decision to recover possession was an improper exercise of the council’s discretion. The decision did not respect but infringed Mr Pinnock’s art 8 rights.

The judge at first instance held that he was bound by the decision of the Court of Appeal in R (Gilboy) v Liverpool CC [2009] QB 699; [2009] HLR 11, in which the demoted tenancy regime was held to be art 6 compliant.  He also held that, whilst there had been no breach of the tenancy in relation to the pre-notice anti-social behaviour, the incident for which one of Mr Pinnock’s sons was convicted after the notice was served – but which was dealt with at the review hearing – constituted a breach of tenancy (as the judge found he was living at the property at the material time) and therefore the council’s decision to evict was unimpeachable.

Mr Pinnock appealed to the Court of Appeal which upheld the decision of the lower court.  Mr Pinnock appealed to the Supreme Court.

Issues on appeal
The appeal gave rise to four main issues, namely:

1)    whether the jurisprudence of the ECtHR required that, before making an order for possession of property which consists of a person’s home pursuant to a claim made by a public authority, a domestic court should be able to consider the proportionality of evicting that person from his home under art 8, and, in the process of doing so, to resolve any relevant factual disputes between the parties;
2)    what the conclusion on the above issue meant in practice in relation to claims for possession, and related claims, in relation to residential property;
3)    whether the demoted tenancy regime could properly be interpreted so as to comply with the requirements of art 8, or whether at least some aspects of that regime were incompatible with the occupiers’ art 8 Convention rights; and
4)    how the appeal should be disposed of in the light of the answers on the above issues.

Judgment
Lord Neuberger gave the judgment of the court.  His Lordship summarised the ECtHR authorities, including: Connors v UK (2004) 40 EHRR 189; Ble?i? v Croatia (2004) 41 EHRR 185; McCann v UK (2008) 47 EHRR 913; ?osi? v Croatia (App No. 28261/06) (15 Jan 2009); and Kay v UK (App No. 37341/06) (21 Sept 2010), and referred to the “consistent and unambiguous” approach demonstrated by this line of authorities.  Lord Neuberger held that where there “is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.”  In light of this determination, the Supreme Court went on to hold as a general rule that the occupier of a home had the procedural entitlement to a determination by the court of the proportionality of eviction in every possession claim by a public authority, even if it was clear there was no domestic law right to remain, it was for the occupier in any such claim to raise that issue by way of defence.

In relation to the test of “exceptionality”, which had been applied in previous domestic authorities, Lord Neuberger held:

“ . . . [W]e have expressed reservations about the view that, in relation to possession claims generally, article 8 will assist an occupier only in “highly exceptional” circumstances. However, there are two features of possession claims under section 143D which enable us to express such a view in relation to these claims. First, the court will already have decided that it was reasonable (and therefore proportionate under article 8) to have made the demotion order, largely removing the tenant’s security of tenure. The court will have done this less than two years (and, no doubt, in some cases less than one year) before it is being asked to make an order for possession. The two sets of proceedings must be viewed as a whole for the purposes of article 8: Zehentner v Austria given 16 July 2009, para 54 (quoted at para 39 above). This highlights the fact that, while article 8 is still engaged at the second, possession order, stage, it would be difficult for the tenant successfully to invoke it, given that its requirements had been satisfied at the first, demotion order, stage. Secondly, as with introductory tenancies, the tenant will have been given the local authority’s reasons for deciding to seek possession. So he will have had the opportunity to challenge the decision and to have that challenge considered by the panel.”

However, it was made apparent that:

“ . . . in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate.”

Moreover, Lord Neuberger observed that the fact that an authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. However, an authority would be required to plead and adduce evidence in relation to any particularly strong or unusual reasons for wanting possession (eg the property is the only occupied part of a site intended for immediate development for community housing).

In terms of the procedure to be followed in the county courts, it was held that a county court judge should consider an art 8 defence summarily at first and should dismiss it unless the court was satisfied that “it could affect the order that the court might make”. In the event that the art 8 defence were made out, the court was held to have a discretion as to the remedy it could grant, whether that be more time, a suspension of the execution of the order or a straightforward refusal to order possession.

Following on from the above determinations, the demoted tenancy scheme was re-interpreted so that the mandatory requirement under the Housing Act 1996, s 143D(2) for the court to make a possession order was read as “must make an order for possession unless it thinks the procedure under sections 143E and 143F has not [lawfully] been followed”.

On the facts of the case and specifically in relation to demoted tenancies, the Supreme Court held that the grounds specified in the notice of possession proceedings are not confined to breaches of the tenancy agreement, so long as they are rational and proportionate.  Moreover, a bad reason specified in the notice is not fatal, but may infect the landlord’s notice if there is bad faith.

Importantly, the lack of involvement by Mr Pinnock was held not to be “of great significance” because the possession order not being sought or made to punish him.  Further, it was observed that it was “scarcely irrational or disproportionate” for the council to evict Mr Pinnock and his partner, when the children undoubtedly visited them.

For these reasons, the Supreme Court dismissed Mr Pinnock’s appeal.

Comment
This judgment has generated many more questions than it has answered.  By abandoning what was a reasonably well-established line of authority (the culmination of which had been approved by the ECtHR), the Supreme Court has opened Pandora’s Box in relation to the future interpretation and application of a plethora of housing statutes.  The courts are likely to see occupiers raising incompatibility/proportionality challenges in the context of the succession provisions under the Housing Act 1985, non-secure tenancies (see e.g. Frisby), Housing Act 1988, s 7 coupled with the mandatory grounds in Pt I, Sch 2 and proceedings under the Housing Act 1988, s 21.

First in line for a “Pinnock make-over” is the introductory tenancy regime in Frisby v Birmingham CC. Are introductory tenancies capable of being treated in the same way as demoted tenancies?  The two regimes are superficially analogous but there is no two-stage process for recovering possession which would attract an “exceptionality” consideration.  In that case, furthermore, the Supreme Court will consider non-secure tenancies occupied by homeless applicants.  Is there any reason to treat homeless applicants as a general category differently: is there any material difference between evicting those who are applying for a benefit to be conferred upon them rather than being deprived of one already obtained?

As a more general proposition, what approach will district judges sitting in the county courts take to the question of proportionality?  It seems there is a real chance that it will be treated similarly to a “reasonableness” assessment.

Further, statutory and procedural provisions which appear to restrict the court’s ability to undertake a proportionality review will probably have to be revisited – e.g. time limits on orders under the Housing Act 1980, s 89.

Finally and arguably most intriguing of all, the judgment leaves open the question of whether issues of proportionality ought to be taken into account in private landlord and tenant possession claims (see para 3, of the judgment).  It is plain from the decision in Zehentner v Austria that the ECtHR contemplates this type of “horizontal effect”.  The question remains as to whether domestic courts will accept this in the course of time as they have in respect of public authorities.