This appeal from the Court of Appeal, where it was known as Salford CC v Mullen [2010] EWCA Civ 336, was heard on 23-24 November and concerns the applicability of ECHR, art 8, to mandatory possession proceedings brought by local authorities in two contexts, namely: introductory tenancies under the Housing Act 1996, Pt V (Frisby and Hall); and tenancies excluded from the security of tenure provisions under the Housing Act 1985, Pt IV by para 4 of Sch 1 to that Act (accommodation for homeless persons). It also concerns the jurisdiction of the county court to entertain defences based on a public law challenge to the decision to evict in the context of introductory tenancies. In McLellan v Bracknell [2001] EWCA Civ 1510; [2002] 2 WLR 1448, the Court of Appeal held that the county court had no such jurisdiction and, where a public law defence was arguable, should adjourn the possession claim pending an application for judicial review of the decision to evict. In Frisby, the claimant council granted the Mr Frisby an introductory tenancy of a property. The authority extended the introductory tenancy after it received complaints of anti-social behaviour.  As a result of further complaints made after the notice was served, it served a notice under the Housing Act 1996, s 128. Mr Frisby requested a review of the decision to end his tenancy but the council upheld their decision on review and commenced possession proceedings in the county court.  Mr Frisby raised a public law defence to those proceedings. The judge at first instance struck out the defence on the basis of the decision in McLellan, but adjourned the claim for a further hearing to determine whether the claim should be stayed to allow Mr Frisby to issue an application for judicial review.

In Powell, pursuant to its homelessness duties under the Housing Act 1996, Pt VII, the council granted Ms Powell a licence to occupy a house. By virtue of the Housing Act 1985, Sch 1, para 4, the tenancy was not secure.  As a result of Ms Powell accruing rent arrears, the council served notice to quit. Subsequently, they brought a claim for possession in the county court. Ms Powell argued in her defence that her arrears of rent had arisen owing to problems with housing benefit and that the council’s decision to seek possession was irrational and therefore unlawful.  The county court made a possession order.

Finally, in Hall, the facts were similar to those in Frisby save that the council did not extend the introductory tenancy and Mr Hall accepted that he had breached the terms of the tenancy but that his anti-social behaviour was attributable to his mental illness and thus the decision to seek possession was disproportionate.  He also argued that the court had to be satisfied that it was reasonable to make a possession order.  He relied on the improvement in his behaviour after service of the notice.  At trial, the council conceded that the court had jurisdiction to consider a public law defence.  This concession was subsequently withdrawn on appeal.  In spite of the concession, the judge at first instance did not consider that he had jurisdiction to consider the public law defence and made a possession order.

In the Court of Appeal, the issues for consideration were as follows:

(a) whether the county court had jurisdiction to consider a public law defence either in the context of introductory tenancies or at all;

(b) whether a court, when dealing with a public law defence could, as part of that process, assess whether a possession order was a proportionate interference with an occupier’s right to respect for his home under the ECHR, art 8;

(c) the scope of public law defences and the relevance of the particular statutory scheme and any procedural rights that it afforded to occupiers;

(d) whether an occupier could challenge the lawfulness of the decision to evict at any stage up to and including the hearing of the possession claim.

The Court of Appeal held that an occupier was entitled to raise a public law defence to possession proceedings in the county court and that the county court had jurisdiction to consider the same save where it was prevented from doing so by the wording of a particular statutory scheme. Consequently, a public law defence could not be raised in relation to possession proceedings for introductory tenancies – the court’s only power was to adjourn the proceedings to enable an application to be made for judicial review if such a point was seriously arguable (which would only be in highly exceptional circumstances).

Further, the Court held that a public law defence did not involve a review of the proportionality of evicting the occupant.  An occupier was entitled to challenge any decision relevant to the council seeking possession and a council was bound to take into account relevant factors as and when they arose during the course of the proceedings but it would not be arguable that it was unreasonable for a council to pursue proceedings if the tenant had had his chance and there were others on the waiting list for accommodation.

The appeals in Frisby, Powell and Hall were all dismissed but leave to appeal to the Supreme Court was granted.

After the Court of Appeal decision and before the hearing of the case in the Supreme Court, the decision in Manchester CC v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441, was handed down, in which Lord Neuberger, giving the judgment of the court, held 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.

In light of that decision, the job of the Supreme Court on this appeal has become one of clarification. The decision in Pinnock renders the Court of Appeal decision in Mullen virtually otiose.  It is not apparent whether introductory tenancies will be treated in the same way as demoted tenancies despite the superficially analogous statutory provisions.

Moreover, is there any reason for the Supreme Court not to apply the reasoning in Pinnock to non-secure tenancies granted to homeless applicants?  By virtue of the pressing social need for council’s to be able to evict those not entitled to homelessness assistance in the form of provision of accommodation and to move those who are so entitled relatively easily and quickly, could non-secure tenancies granted to the homeless form a category to which exceptionality applies, similarly to demoted tenancies, for instance?  This decision is awaited with baited breath.