An interesting appeal from a summary possession order on the issue of consideration of proportionality. While the outcome is not, perhaps, a surprise, some of the arguments are. Plus this is an example of the High Court grappling with how the County Court should approach a summary possession claim, post Pinnock and Powell.

Mr H had a non-secure tenancy from Westminster as temporary accommodation following Westminster accepting a s.193 Housing Act 1996 duty in 2005. In 2009, Westminster told Mr H it had discharged duty following his failure to attend two appointments for inspection of his accommodation. Mr H requested a review. In the interim, a notice to quit was served and possession proceedings brought in August 2009. These were adjourned pending the outcome of the review. The review decision in January 2010 withdrew the discharge.

However, in February 2010, before the possession claim was withdrawn, there was an alleged assault by Mr H on two council officers. Westminster pursued the possession claim. It should also be noted that Mr H has a history of mental health problems. He has been diagnosed with severe anxiety, obsessional behaviour, depression, paranoid personality disorder, seasonal affective disorder, alcohol dependent syndrome and possibly post traumatic stress disorder.

Mr H filed a defence and Westminster applied to strike it out and alternatively for a possession order on a summary basis. At the hearing of the application, Mr Recorder Widdup made a summary possession order and struck out the defence.

Mr H appealed to the High Court. We’ll come to the grounds of appeal later on, but overall, the basis was that a summary order should not have been made when there were disputed issues of fact that went to the proportionality of possession proceedings.

Mr Justice Eady’s judgment contains a potted history of human rights and public law challenges to summary possession proceedings, from Kay v Lambeth to Manchester CC v Pinnock and Hounslow LBC v Powell. This is worth reading, but largely straightforward, save that Eady J seems to have some trouble with ‘exceptionality’. While he notes the very clear statements in Pinnock that ‘exceptionality is an outcome not a guide’ in considering an arguable Article 8 proportionality defence, he returns to the issue in Powell, stating:

It was again emphasised at [37], as in Pinnock, that

” … there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock”.

It will be observed that this statement of the law comes close, although it has been disavowed, to espousing a test of exceptionality.

[I would say, in passing, that this is not so. That passage in Powell addresses whether a local authority needs to provide a justification for seeking an order in each case and, in saying that they don't, sets out the presumption that the authority would be acting under housing management duties as a justification. That passage has no bearing on the exceptionality of a proportionality defence, as the question is not necessarily whether the LA's actions were justifiable, but whether they were proportionate. Hypothetically, there could be many situations in which the tenant's Article 8 rights made seeking an order disproportionate, but this would not affect a presumption that the Council was acting in accordance with its housing managment duties for the public good.]

Having established the outline of the proportionality defence and that the Supreme Court held that it applied to non-secure tenancies provided under s.193 HA 1996, Eady J looks at the limited guidance to the County Courts to be found in Pinnock and Powell, He cites para 41 in Powell:

In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock … at [52]. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court

From this Eady J takes the view that the County Court Judge should

deal with possession claims in homelessness cases on a summary basis unless a proportionality argument has been raised which can be categorised as “seriously arguable”. That is to say, I would presume, it needs to be shown that there is a serious argument available that the public policy considerations guiding the local authority’s application for possession should be outweighed in the particular circumstances by Article 8 considerations

On the specific issues raised by a proportionality challenge in a non secure/part VII accommodation case, it is noted that it is open to the tenant to challenge the factual basis for the reason why possession is sought and that the tenant should be told of the reason, pace Lord Phillips at 114 in Powell

Sometimes the authority will be reacting to the behaviour, or perceived behaviour of the tenant. In the latter event the authority may be proceeding on the basis of a factual assumption that is unsound. If the only reason that the authority is seeking possession is that the tenant has been guilty of bad behaviour, obtaining possession will not further the legitimate aims of the authority if that factual premise is unsound. If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authority’s action will serve a legitimate aim.

In the present case, Mr H had indicated in some documents that he wished to challenge the factual basis of the allegation of assault, stating that he had in fact lost his balance and fallen on the Council officers who were trying to serve him when he tried to rip up the document. This was not in the pleadings, however, and was not the only basis on which the Recorder’s decision was appealed.

Turning first to Westminster’s submissions, they began with what we might call a ‘bold’ (in the Yes Minister sense) argument that the proportionality defence didn’t apply to non secure/part VII accommodation, submitting:

that Parliament had determined that the Council should have a right to possession without the court considering its reasons: see the Housing Act 1985, Sch 1 at paras 4 and 6. It was submitted that it would be antithetical to the Council’s right to manage such accommodation if it were required to give a tenant a right to question a reason for seeking possession. It was argued that there was no legal basis for grafting the rules of natural justice on to a process where the right to possession is considered to be, for sound public policy reasons, unconditional. It was accepted that the rules of natural justice might come into play at a later stage, if the Council sought to argue that Mr Holmes had made himself intentionally homeless. Such considerations should not, however, intrude upon the process of obtaining a summary order for possession.

Rather gently, Eady J found that the Supreme Court had said that the proportionality defence was available and that was that.

It was clear on the facts that the alleged behaviour of Mr H in February 2010 was the reason the Council sought possession. But that in itself did not decide the question of whether the Recorder was entitled to proceed on a summary basis.

Westminster submitted that the Recorder was entitled to do so, that there was no requirement to hold a ‘quasi criminal trial’ to determine whether Mr H was guilty of assault. What mattered was whether to Council had reasonable grounds to believe he had behaved in the way described by its officers. Unacceptable conduct did not have to reach the standard of a criminal offence or even a civil wrong, nor need to be found so on the evidence. The Council’s own anti social behaviour policy set out that it would take ‘further action’ to protect staff facing serious anti social behaviour and that in the circumstances this included eviction.

On the disputed facts, no positive case for a defence had been pleaded by Mr H. There was, therefore, no ‘seriously arguable’ defence on disputed facts for the recorder to consider. The burden was on Mr H in the light of the evidence before the Court, but he had not shown ‘substantial grounds’ for the nedd for a hearing. The Recorder was entirely entitled to decline to give directions for a hearing on the disputed facts and to proceed with a summary hearing under CPR 55.

In addition to raising the disputed facts of the February incident, Mr H argued that:

i) “the Recorder should have given directions to resolve any outstanding dispute as to the underlying facts, for the reason that the relevant law was in a process of development.” The hearing was between the judgments in Pinnock and Powell.

Held, this was not the case. The law had been clarified in Pinnock, before the recorder’s decision and the further clarification in Powell was to the same effect in so far as relevant.

ii) Mr H argued on public law grounds, that the Recorder had disregarded relevant matters which should have been taken into account. These originally included Housing Corporation guidance, which was not pursued, and Secretary of State’s Guidance the rehabilitation of perpetrators and support for vulnerable groups. This was also dropped, as it had not been raised before the recorder at all. This left the Council’s own policy on Anti-Social Behaviour as the matter that the Recorder should have had regard to.

The Council’s ASB policy stated that enforcement, including by eviction, would be used in appropriate circumstances and where other attempts at resolution had failed or been exhausted.

Held: The Council had had reference to its ASB policy and indeed had referred to it in a letter to Mr H in April 2010. A further letter had referred to the seriousness of the incident of February 2010 and the decision to pursue possession as a consequence. This was consonant with the policy. So the policy played a significant part in the reasoning behind the decision to pursue possession, unlike Barber v Croydon London Borough Council [2010] HLR 26. The Recorder was entitled to conclude there was no cogent evidence on a breach of any policies.

iii) The Recorder should have found a breach of s.49A of the Disability Discrimination Act 1995 by the Council.

Held:

The Recorder in fact asked counsel appearing for Mr Holmes, as emerges from the transcript of the hearing, how it was that she alleged the Council was in breach of its statutory duties. Her response was unspecific, in the sense that she referred to the Council not having taken sufficient account of Mr Holmes’ “mental health issues”. The learned Recorder rightly noted that there was “a need for cogent evidence of breach of policies or duties under statute before such a defence can carry weight”. He concluded that he was unable to identify any cogent evidence to the effect that there had been a breach of inter alia the 1995 Act

The Recorder had been right to do so.

Westminster argued that “an appellate tribunal could refuse relief in this respect on the basis that any deficiency in the discharge of the statutory duties would be made good following eviction, by reason of the fact that Mr Holmes would continue to be owed duties as a homeless person: see e.g. the discussion of the Court of Appeal in Barnsley Metropolitan Borough Council v Norton [2011] EWCA Civ 834″. However, there was no need to decide on that point.

iv) Mr H argued that the Recorder had applied the wrong test on deciding to strike out the defence. He had asked if there was a real prospect of success, where the test on the strike out was whether it was ‘bound to fail’.

Held: The Recorder was granting summary possession under CPR 55. The appropriate test for the strike out did not arise directly. However, even if it was a strike out under CPR 3.4, he was entitled to conclude that the defence had no reasonable prospects of success. ” It is clear from his judgment that he took the view that the matters raised in the defence were in fact bound to fail.”

Appeal dismissed.

I had a look at Shapps’ initial announcement back in January. This time there is a bit more detail. Has it got any better or indeed more sensible?

Briefly, the proposal is to bring in a whole new process rather than to amended or add to existing grounds for possession in Housing Act 1985 or Housing Act 1988. The model is the Introductory Tenancy possession procedure.

The trigger is “serious housing-related behaviour which has already been proven by another court”.

The landlord is then to serve a “notice of proceedings on the tenant, setting out the reasons why they are seeking possession, and advise the tenant of the date after which possession proceedings may be begun.”

There is then a right to request a review of the decision to seek possession. For local authority tenants this would be “by a more senior officer not involved in the original decision”. For housing association tenants it would be “through their landlord’s established complaints procedure.”

Hang on – you have just been served a notice of mandatory possession proceedings, but it is OK because you can make a complaint? I think that might need a little more working out, having dealt with housing association complaints procedures.

Assuming the review is negative, the landlord issues proceedings and “The court would have to grant an order for possession on application by the landlord provided the correct procedure had been followed.” Except that, as I and many others pointed out, Pinnock would apply. The consultation acknowledges this:

The recent Supreme Court judgments in Pinnock and Powell, Hall & Frisby confirm that a human rights defence, based on the proportionality of the landlord’s decision, is available in proceedings brought by a public authority under the current statutory provisions on which we propose to model the mandatory power

and then later

we need to ensure that where that test is met, it can be simply established that the anti-social behaviour is serious and housing related. Unless the court is in a position to dismiss quickly arguments that the landlord’s action is not proportionate, a full facts based review is likely to be required and the practical advantages of seeking possession through a mandatory power rather than on discretionary grounds are likely to be lost.

Well yes.

Once a possession order is made, it is to be suspended for no longer than 14 days, or 6 weeks in cases of exceptional hardship.

So, what are the triggers? What would enable this mandatory ground to be brought into play?

We are proposing therefore that landlords will be able to apply for possession for anti-social behaviour under a mandatory power where antisocial behaviour or criminal behaviour has already been proven by another court. We will further define the ‘triggers’ for seeking possession under a mandatory power in the light of final Home Office proposals on new tools and powers to be published in due course. Broadly however we propose these are as follows:

• Conviction for a serious housing related offence – to apply to offences committed by tenants, members of their household or regular visitors which take place in the locality of the property or between neighbours away from it. The type of offences we propose to capture include violence against neighbours; serious criminal damage with violence; drug dealing or cultivation in the property; murder; and rape. We think that ‘indictable only’ offences should broadly capture these.
• Breach of an injunction for anti-social behaviour – given the persistent and/or serious nature of anti-social behaviour which is likely to lead to a court granting an injunction we think it is appropriate that a breach by a tenant, member of their household or regular visitor should provide a trigger for a mandatory power of possession. We propose, to ensure that the anti-social behaviour is housing related, that the mandatory power should only be available where a social landlord has either obtained or is party to the injunction.
• Closure of premises under a closure order – we think that where a court has determined that activity taking place within a property is so serious to merit its closure, it is appropriate that a landlord can seek possession against the tenant using a mandatory power.

As a definition of ‘Housing related’, that is going to be pretty unworkable, I suspect. Certainly, it will be up for challenge in individual cases. If I happened to assault someone some miles away from my home, but it turned out that they lived on the same estate – not to my knowledge – would that be housing related because they were a neighbour? Or, to play the extremes, I kill someone in my mother’s flat, where I regularly visited – she had nothing to do with it – I’m convicted of murder, sentenced to life. Should my mother face mandatory possession proceedings?

And on the breach of injunction, while the landlord may be a party to the injunction, does that make the breach housing related? Not necessarily, depending on the terms of the injunction and the nature of the breach, surely.

In summary, it appears we have a proposed mandatory possession proceeding that isn’t actually mandatory. This is based on a decision to seek possession to which a tenant’s factual challenges must be made via the landlord’s complaints procedure. The offences giving rise to the decision must be ‘housing related’, where there is no clear or functional definition of what ‘housing related’ actually means.

What, I ask you, could possibly go wrong?

And what is the reason for this proposal – the justification, if you will? The consultation document is a bit light on specifics. This is about as clear as it gets:

Survey data from 61 landlords in England covering over 500 recent antisocial behaviour possession cases indicates that on average it took over seven months from the date of application to the court for a possession order to an outcome (the award of a possession order or the claim being dismissed). Multiple adjournments, for example because defendants don’t turn up or turn up unrepresented, or because further evidence is required, or there are difficulties in finding court time for a trial which may last over a day, emerge as key drivers of delay. This is particularly frustrating in cases where housing related anti-social behaviour has been previously proved in another court but a full review of the facts is again undertaken.

Indeed, the courts are very busy. I’m surprised it was only about 7 months, to be honest. But I’m not sure that the courts being overloaded is actually a sound reason to introduce mandatory grounds for possession to save time.

And here again is this bit about having to prove facts that have already been proven in another court. I’m beginning to wonder if I have really missed something. Am I being a total idiot or is this not nonsense? What civil court would or could demand that findings of fact by a criminal or civil court at the same or higher level be proved again? But this is what the DCLG seeks to imply in the case cited in the press release (any information about that case gratefully received).

The consultation adds:

Instead of a potentially lengthy trial, perhaps, following adjournments, many months after an initial directions hearing, a mandatory power should significantly increase the chance that the case can be determined quickly in a single hearing. The court will only need to establish that the criteria for awarding possession are met rather than needing to reconsider all the facts of the case.

Whoah. Hold your horses – this is after a criminal trial, or after injunction and then breach of injunction proceedings. As a commentor on my previous post pointed out:

Round my way, and presumably round most people’s ways, the police wait for RSLs/RPs to take action, on the grounds that “the civil route is easier/quicker”. One client has already been informed by its local police service that the dedicated ASB officer role is going due to cuts. And even the poor old police despair at times of the CPSs pusillanimous approach to ASB offences/proceedings.

So to any putative cut in the ’7 months’ for ASB possession proceedings, one must add the months or possibly years, of the criminal proceedings.

What, apart from giving the few housing lawyers left working a field day in the appeal courts for the first year or two of the scheme, is the point? What would actually be achieved?

In my previous post, I said:

Unless existing powers are actually used (and the dedicated joined-up ASB teams funded), the fact that there may be a kind of mandatory possession proceeding [...] is going to make no practical difference to the situation at all, as there will be as few ‘housing related ASB’ prosecutions as there are now, or even fewer.

I see nothing in this proposal to change that. It is still a chocolate teapot, and I’d say a vegetable oil based milk chocolate rather than 80% cocoa at that.

Birch and Others v UK Application no. 26393/10

Birch arises out of possession proceedings brought by Bedfordshire DC on a property which had been leased, short term, to a housing association which had, in turn licences a co-op group to grant assured shorthold tenancies to occupiers on its behalf. The lease had been granted in 1993 and expired in 1996. It was not renewed but negotiations went on and the co-op continued to grant ASTs to occupiers. In 2006, Bedfordshire brought possession proceedings. The judge granted possession, considering himself bound by Kay v Lambeth, and refused to consider the art 8 defence. The Court of Appeal dismissed the appeal on the basis that the facts were those of Kay rather than Doherty (our report here). The Supreme Court refused permission.

Since then, the applicants have all moved out, some into private accommodation and some homeless, with some suffering physical and mental health consequences. The property remains undeveloped and empty.

The ECtHR notes the recent history of Pinnock and Powell and poses the question:

Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

Wilkes & Wilkes v UK Application no. 56387/07

The Wilkes had an introductory tenancy from Blackpool BC. Following complaints involving some 57 incidents of ASB, including allegations of violence, threats to neighbours and council officers and an incident of indecent exposure, Blackpool served statutory notice to terminate the tenancy, on grounds of ASB in January 2007. The Wilkes requested a review of the decision to seek possession. The review panel consisted of a five-member panel of the Employment and Appeals Committee made up of elected councillors who had formed no part of the original decision-making process. the Wilkes did not attend, but via a solicitor, sent a letter admitting many of the incidents alleged. On 5 February 2007, the panel decided the decision to seek possession was justified. Possession proceedings began two weeks later. The defence was art 8 and an argument that the review panel was not impartial or independent so that there was a breach of article 6.1. There was also a public law defence.

At trial, the Recorder found that the public law defence had no realistic prospect of success and summarily dismissed it. On the human rights defences, the Recorder considered himself bound by R (McLellan) v Bracknell Forest Borough Council and Reigate and Banstead Borough Council v Benfield and another [2002] QB 1129, in which the Court of Appeal stated that in the context of introductory tenancies, there was simply no room to conclude that there might be any incompatibility with the Convention. He therefore struck out the applicants’ defence. Permission to appeal was refused.

The ECtHR notes the intervening history of Pinnock and Powell, and poses the following questions:

1. Was the interference with the applicants’ respect for their home, within the meaning of Article 8 § 1 of the Convention, necessary in terms of Article 8 § 2?

2. Was the review panel an impartial and independent tribunal as required by Article 6 § 1 of the Convention?

Comment

While Birch must surely have a predictable outcome, following the decision in Kay v UK (our report), Wilkes introduces something else. The article 6 question will give the ECtHR the chance to give its view on ‘review panels’ in determining Introductory tenancies (and presumably by extension Demoted tenancies). It may well turn out that the Pinnock approach would satisfy the article 6 issue for the future, even if the review panel is not art 6 compliant, but nonetheless an interesting prospect (although not perhaps the most prepossessing facts on which to be running such a case). Hat tip to the Garden Court Bulletin for letting us know about these.

*One for those of a certain vintage.

[This is probably a work in progress. There may be further additions and comments as people get a chance/have a brainwave. We've also ended up writing this as something of a tag team. Chief did most of it and starts us off.]

Sometime ago Dave opened the door to Tarantino references in relation to the vexed issue of Art.8 of the ECHR and possession proceedings. In his post on Zehentner v Austria he pointed out that, just as American hitmen consider that European fast food chains do certain things rather differently, so the appellate courts in England and Wales had viewed the approach of the European Court of Human Rights with bemusement. The latest decision of the Supreme Court on this subject is an unmissable opportunity to consider another famous moment from Pulp Fiction.*

Furthermore, you have written in in your droves [cough splutter - NL] praising our innovative and revolutionary roundtable writing approach to these cases (as seen with Kay v UK and again with Manchester v Pinnock) so we have rolled it out again. Buckle up, it’s going to be a bumpy ride.

Back in Doherty v Birmingham [2008] UKHL 57; [2009] 1 AC 367 Lord Hope said at [20] that:

“I am not convinced that the Strasbourg Court—which did not hear oral argument in McCann —has fully appreciated the very real problems that are likely to be caused if we were to depart from the majority view in Kay in favour of that of the minority. The proposition that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which the Strasbourg Court adopted in [54] of its judgment appears to set a high standard, one that will be hard to achieve. But it suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not. Unless parameters or guidelines are set down, the judgment in each case will be a subjective one. Every solicitor who is asked to advise an occupier will have to consider whether it is arguable that the decision to seek his eviction was not proportionate. If he decides to raise this argument the court will have to examine the issue. The whole point of the reasoning of the majority was to reduce the risks to the operation of the domestic system by laying down objective standards on which the courts can rely. I do not think that the decision in McCann has answered this problem. Until the Strasbourg Court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises.”

Although the ECtHR has in a number of cases repeated its insistence that anyone at risk of losing their home should be able to have the proportionality of that measure determined by an independent tribunal, and it may be that from the facts of those cases it is possible to start drawing together some pointers towards objective criterion, it does not appear (to me at least) that principles for general application have yet been established by the ECtHR.

While the Supreme Court accepted in Manchester v Pinnock [2010] UKSC 45; [2011] HLR 7 that the time had come to welcome proportionality into possession proceedings with open arms and a nice piece of pie, Lord Neuberger MR noted that:

“57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person’s home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.

“59. The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances … Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance. … In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.”

The reference to Salford v Mullen is a reference to the cases considered in the current judgment of the Supreme Court. Last week in anticipation of the Supreme Court’s decision we expressed the hope that these cases would allow us to look inside proportionality.

Therefore, by the time we come to the judgment in Hounslow v Powell, we have reached the point where the Supreme Court has (to borrow from Vincent in Pulp Fiction)** “gotta have an opinion“*** on general guidance and principles for general application.

No Security

While Pinnock concerned one, rather rare, situation where the occupier does not have security of tenure, these appeals concerned two far more common situations. The first is tenants under introductory tenancies (Housing Act 1996, Pt.5). In the course of our introduction to the Supreme Court’s decision in Pinnock, the introductory tenancy scheme was explained as a way of understanding the demoted tenancy regime. To spare you, dear reader, from having to click into another window and to spare my poor typing fingers, I will lazily copy-and-paste:

ITs were brought in by the Housing Act 1996, as a means of tackling anti-social behaviour. They operated as a form of probationary tenancy – indeed the 1995 consultation paper produced by the DoE was entitled ‘Anti-social Behaviour in Council Estates: A consultation paper on probationary tenancies’. Part 5 of the HA 1996 was designed to “enable authorities to deal more effectively with any tendency on the part of new tenants to engage in anti-social behaviour which emerged during the first 12 months of the tenancy … the nub of the scheme is that (provided the authority followed the correct procedures as laid down in the Housing Act 1996 for terminating an introductory tenancy), under section 127(2) of the Housing Act 1996, the county court is obliged to make a possession order.” (Waller LJ at [11]-[12] in R (McLellan) v Bracknell Forest BC [2002] QB 1129). If the procedure (including an internal review) has been carried out an authority’s decision can only be challenged by way of judicial review, see Manchester CC v Cochrane [1999] 1 WLR 809. Cochrane predated the coming into force of the Human Rights Act 1998, but in McLellan the CA held that the IT scheme was compatible with art.6 of the Convention.

Clearly, the decision in Pinnock meant that things had moved on since Cochrane and McLellan.

The second situation, and again one that is statistically far more significant than demoted tenancies, is where local housing authorities grant tenancies pursuant to their duties to the homeless (Housing Act 1996, Pt.7), which are excluded  from security by Sch.1 of the Housing Act 1985.****

Facts

From our note on the Court of Appeal decision in these cases you will remember that there were originally five cases joined together. One of them fell by the wayside (Manchester v Mushin), while another has been granted PTA to the Supreme Court, but has been stayed pending the outcome of these cases (Salford v Mullen – the lead case in the Court of Appeal, somewhat bizarrely as Salford weren’t even represented there).

The three cases that were before the Supreme Court were therefore Hounslow v Powell (a homelessness case where rent arrears had accrued, but full HB was now in payment); Leeds v Hall (an introductory tenancy case where Mr Hall had been accused of noise nuisance, threatening and intimidating behaviour and being verbally abusive towards his neighbours); and Birmingham v Frisby (another IT case, this time where Mr Frisby had been accused of noise nuisance and abatement action had been taken under Environmental Protection Act 1990).

Issues

The leading judgment was given by Lord Hope. This might provide a clue to seasoned observers about whether a wide or a restrictive approach would be taken to Pinnock. Lord Hope identified four issues:

1. What is the form and content of the proportionality review that Art.8 requires?
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 the court defer the delivery of possession for a period in excess of the maximum permitted by s.89 of the 1980 Act if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility?
4. Can s.127(2) of the 1996 Act be read compatibly with the introductory tenant’s Art.8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Manchester v Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right?

Preliminary – applicability of Art.8

The fact that Lord Hope identified these as the issues will have already told you the answer to what I would describe as the first, almost preliminary, issue – namely whether Pinnock meant that proportionality applied in these two classes of occupation. If Pinnock and proportionality did apply then the Supreme Court would need to grapple with the detail of how proportionality should operate, procedurally and substantively (issues 1-4 above).

In the wake of Pinnock it is almost unthinkable that the Supreme Court could say that the proportionality requirement did not apply (as opposed to that it could not in the county courts due to the statute, on which more below). And so it proved: “In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8″ [33].

I (Chief) think that the Supreme Court must be broadly right on this point, if they were right in Pinnock (by which I mean, reading between the lines in Pinnock, right that “in principle” in the ECtHR’s formulation does not beget exceptions based on class of occupancy or the social policy that has led to differences in class and type, but only on the requirement for the occupier to raise a proportionality issue). It might be doubted whether this is right in relation to Pt.7 accommodation that is provided for a really short period of time – see O’Rourke v UK where the applicant had been placed in a hotel room for less than a fortnight before being turfed out and the ECtHR had “significant doubts over whether or not the applicant’s links with the hotel room were sufficient and continuous enough to make it his ‘home’ at the time of his eviction” – but in reality the “home” test under Art.8 is a relatively easy one to pass.

Substance of proportionality

Lord Hope reiterated at [34] that an Art.8 point only needs to be considered if it is raised by the occupier. If it is raised it should initially be considered summarily. If the court is satisfied that even if the facts relied upon were made out the point would still not succeed then the Art.8 defence can dismissed summarily (I pause here to query how many county court judges are really going to be ready to dismiss these defences summarily except in those cases where the defence only amounts to “I don’t want to”. Anything else is surely likely to get a further hearing from many/most DJs. It is at the stage of a possible final order further down the line that the vast majority of occupiers are going to be severely disappointed). Therefore, it followed that in the great majority of cases the local authority (presumably, as with Pinnock, this is being used fairly interchangeably with “public authority”) need not plead its precise reasons for possession, but may plead a more detailed case in reply to an Art.8 defence.

Jan Luba QC (Counsel for the 3 appellants, and a man who should be praised for his tenacious pursuit of this cause in the face of a number of knock-backs from the House of Lords******) is recorded at [35] as accepting that the threshold for raising an arguable proportionality case was a high one, and would only succeed in a small proportion of cases (cf. my query above).

After acknowledging the practical considerations for the judge in the county court (as Norris J noted in the recent case of Leeds & Yorkshire HA v Vertigan [2010] EWCA Civ 1583, the “pressures of a county court possession list are not to be underestimated”), the next part of Lord Hope’s [35] is probably likely to become as quoted by local authorities as Lord Bingham’s “pedantic exegesis” in R v Croydon ex p Graham or Lord Neuberger in Holmes-Moorhouse:

“Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.”

[NL taking up the baton after Chief's epic work] The practical upshot of that view, we’ll come back to below. But the immediate consequence is clear in para 36 of Lord Hope’s judgment. The proportionality of making a possession order will be supported by the fact that making the order will (a) “serve to 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”. While in Kryvitska and Kryvitskyy v Ukraine (application 30856/03, December 2010) the ECtHR indicated that the exercise of ownership rights by itself will not suffice where the owner is the state, the twin aims satisfy the legitimate aim requirement.

It follows that there is no need, at least in the overwhelming majority of cases, for the local authority to explain  and justify its reasons for seeking a possession order. It will be enough that the statutory pre-requisites have been satisfied and that “it is to be assumed” [my emphasis] that the authority is acting in accordance with its duties in allocation and management of housing stock.

The court therefore only needs to be concerned with the occupier’s personal circumstances, any factual objections raised by the Defendant [see below for more on factual issues] and in the light of those, what view the Court takes on whether an order would be lawful and proportionate.

This suggests that Lord Hope (and the Supreme Court) was not prepared to see a ‘structured approach’ to deciding proportionality of the kind found in Huang v Secretary of State for the Home Department [2007] UKHL 11. And so it proves. While Huang may be desirable in the context of immigration control, it is not appropriate in the context of a statutory regime, where parliament, for reasons of social policy had not provided the occupiers with secure tenancies. To require an Authority to plead to balance its interests against that of the occupier would be wholly inappropriate [41] and collapse the distinction between secure and non-secure tenancies, as well as giving rise to prolonged litigation. Rather than the Authority having to show its objective was sufficiently important to justify limiting a fundamental right, it should, in the ordinary case, be absolutely taken as read that the objectives (a) and (b) above are sufficient. It is against these aims that the Court should, ordinarily, measure the Defendant’s personal circumstances and factual objections.

Procedure

Turning to general procedural concerns, on which Mr Luba QC submitted that Article 8 would be satisfied by requiring that before possession proceedings are begun, the non-secure occupier knows why the proceedings are being initiated and has the opportunity to make representations to the decision maker. The Court was also asked to answer questions about the way claims for possession should be handled in the County Courts. This was best left to arise from how proceedings were actually dealt with in practice. Lord Hope declines to give a general view that reasons should be given. In the present cases reasons were given – either via the Introductory tenancy review, or in Ms Powell’s case, by warnings and an opportunity for interview on the rent arrears.[47-48]

I’ll pause here for a moment, as does Lord Hope, to deal with the specific issues before the Court on Introductory tenancies and temporary accommodation provided under Part VII Housing Act 1996. The respondent authorities argued variously that the terms of HA 1996 s.127(2) did not admit of having a proportionality review read into it in the same way as the demoted tenancy provision in Pinnock [55], and that Part VII contained no express provision that permitted a court to refuse to grant a possession order [38]. I don’t propose to spend long on this, though as the Court’s responses are not a surprise to anyone who has considered Pinnock.

On s.127(2), there is “a sufficient similarity between s.127(2) and s.143D(2) [demoted tenancies] to apply the reasoning in Pinnock to introductory tenancies also.” While the word “procedure” is not used in s.127(2), it does refer to the procedural requirements in s.128. Lawfulness must be an inherent requirement of the procedure in seeking a possession order and it must be open to the Court to consider whether the procedure has been lawfully followed. No declaration of incompatibility required.

Procedurally, where a proportionality defence is raised to a possession claim against an introductory tenancy, the Court must have in mind that the tenant has a statutory right to request a review of the decision to seek possession under s.129 HA 1996. Parliament withheld the right to a secure tenancy until the end of the trial period and, in the ordinary case, the authority’s presumed legitimate aims (as above) will encapsulate the relevant facts.[45]

On Part VII:

there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII. There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate. [39]

I’d note at this point that, as most defences to possession of Part VII accommodation will be for rent arrears or behavioural issues rather than discharge of duty, and a fresh application will only be appropriate on discharge of duty (or negative finding), it is unlikely that the availability of review etc. under s.202 and s.204 will be appropriate in such cases, or they will not be a timely response. But the availability of some other form of challenge or remedy under Part VII should be borne in mind.

Housing Act 1980 – interpretation/declaration?

Then there is the issue of s.89 [Dave taking over the ring in tag blog].  This is dealt with by Lord Hope at [57]-64], and considered also by Lord Phillips at [102]-[103].  It will be remembered that one of the points made in Pinnock (at [63]) was that the acceptance of the proportionality defence may require certain statutory and procedural provisions to be revisited.  One such provision was s. 89.  This provision gives the court discretion, in cases of “exceptional hardship” to postpone a possession but “… shall not in any event be postponed to a date longer than six weeks after the making of the order”.  The SC in Pinnock seemed to be offering a third way between possession and refusal – ie a postponement for a longer period than six weeks – which seemed an elegant compromise.  Although not precisely on point in Frisby, the SC nevertheless consider it authoritatively after full argument (although strictly, I suppose, obiter).  The problem, though, which faced the SC in Frisby was that s.89 could not be read down so as to make it compatible – no interpretive trick is available to get round the words “shall not in any event” – as Lord Hope put it, those words “could hardly be more explicit” (at [61]).  Further, the scheme of the 1980 Act was designed to confer protection on secure tenants (which were created by the Act) and not on other tenancies.  Reading down, then, was out of the question ([62]).  There is the ordinary case management powers open to courts (eg defer a possession order pending an appeal, adjourn to enable proceedings to be brought in the admin court [presumably now a rare occurrence]; if more info was needed to enable the court to decide what order it should make): “But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum” ([63]).

If that’s the situation, might s. 89 be incompatible with Article 8 (a straightforward gateway (a) claim in the old money).  Lord Hope considers the incompatibility issue at [64] and gives it short shrift:

No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blečić v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility.

So, what this means, as Lord Phillips explains, is that it limits the type of orders which a court can make (cf Pinnock at [62]).  Lord Phillips, however, is savvy enough to recognise one effect of this finding of compatibility, and it is significant:

The clear limit on the judge’s discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged.

Disposing of the appeals

Ms Powell: Hounslow had decided to offer Ms Powell suitable alternative accommodation after Pinnock on a non-secure basis with her agreement to pay the rent arrears following her.  Jan Luba, however, sought to go further and argued that the order should be set aside because the proportionality of Hounslow’s actions had not been considered at the original hearing.  They agreed that the possession order should be set aside because of the offer of alternative accommodation.  Had there been a live issue, they would have remitted it to the county court.

Mr Hall: Leeds had offered Mr Hall a secure tenancy post-Pinnock but the same issue was raised by Jan Luba about setting aside the possession order.  However, here no grounds had been presented for the suggestion that Mr Hall had a “seriously arguable” case on proportionality – “Had it not been for the offer of a secure tenancy, I would have dismissed his appeal”.  However, in light of the secure tenancy, no good reason would be served by the possession order so the appeal was successful for that reason only.

Mr Frisby: The unluckiest of them all – Birmingham had made no offer to settle and he was unsuccessful on the facts.  There was no reason for thinking that the had a seriously arguable proportionality defence: he hadn’t sought a review of the council’s decision to extend his IT; and did not attend the resumed review hearing of the decision to seek an order for possession: “The facts on which that decision was based are compelling, and no notice has been given of any grounds on which it might be suggested that the making of the order was disproportionate” (at [70]).

I Concur

There is then a second, generally concurring, judgment from Lord Phillips. Some of it has been dealt with above and some of it is dealt with under ‘Some preliminary thoughts’, below.

A couple of points do bear drawing out at this juncture though.

Firstly, Lord Phillips’ flirtation with not accepting the applicability of an independent proportionality determination for introductory tenancies at [78]-[79] has an air of just toying with the respondents. You can tell his heart isn’t really in it.

Secondly, Lord Phillips at [93] states that an authority may properly rely on a breach of a tenancy condition in an introductory tenancy even where it does not have any impact on any third party. This much is probably in accordance with the policy behind the Act, but one would expect that, if the seriously arguable threshold is crossed, different breaches may weigh differently in the proportionality exercise (probably rightly, I might add). However, I’m not certain that Lord Phillips actually goes this far. What he does do is to approve [97] of Waller LJ in McLellan, viz.:

“Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter- allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.”

As Lord Phillips puts it “if a tenancy has given rise to complaints by neighbours of anti-social behaviour the authority does not have to be in a position to prove that these are well founded in order to justify terminating the tenancy” [93].

Lord Phillips deals with two interesting points in relation to homelessness cases (HA 1996, Pt.7). The first, which is not particularly surprising, is that:

“where the local authority simply wishes to relocate the defendant in alternative accommodation in the interests of the more efficient allocation of limited and fluctuating housing stock, it is not easy to envisage any issue of fact that the defendant could raise that would constitute a substantial ground for making a proportionality challenge.” [111]

The second relevant point in relation to homelessness cases is that “where the reason is non-payment of rent there is not likely to be much scope for bona fide issues of fact” ([112]) – but again, presumably, individual circumstances may count for more than where the homeless applicant has behaved in an anti-social manner.

For the purposes of this brief summary of Lord Phillips’ judgment the next relevant point can be found at [116]-[117], where his Lordship suggests that the homeless applicant must be informed why the local housing authority is seeking possession against them, but that this will not add anything to the obligations of authorities as it is “inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so” – and for efficient local authorities this much is true, but it may be that some LAs will want to reconsider their systems and processes, and quite rightly as it is inconceivable to me that fundamental fairness requires anything less.

His Lordship goes on at [117] to stop short of saying that reasons must be given before service of NTQ – a relief perhaps to those few authorities who still have some cases working their way through the system where NTQ was given at the start of the tenancy, as if it were a s.21 notice.

Then finally at [120] the ghost of the “tolerated trespasser” clanks its chains and wails mournfully. You just knew that we wouldn’t be free of it that easily. Lord Phillips’ view is that that there is no reason in principle why “if the validity of the notice to quit is challenged by way of defence to the claim for possession, the judge should not be entitled to deal with that challenge.” [120]. That, I think, must be right and welcomed, but what of the position where the NTQ is valid, and indeed a proportionate response, but subsequent events/personal circumstances call the proportionality into question? One hopes that there will be no barrier to setting aside the NTQ. Certainly this is the inference that I choose to believe that Lord Phillips is making.

Some preliminary thoughts in response

Chief: I don’t think that there was ever much doubt, after Pinnock, that an Art.8 proportionality requirement would be in play in these types of cases. Whilst it is open that the more appropriate result would have been a declaration of incompatibility in Pinnock, once that possibility had been dismissed it seems obvious that the same logic should apply here. To my mind the list of missed declarations of incompatibilities keeps on growing, s.89 being a further case in point.

Once again, the Holy Grail (as it were) of the applicability of art.8 to private sector tenancies has not been grappled with – nor should it have been in this case. But what is probably clear is that if a successful proportionality defence is going to be as difficult to raise as their Lordships think in relation to a public sector tenancy (an issue on which time may well prove them wrong) then it will presumably be even tougher in the private sector where the landlord’s A1P1 property rights will count for a great deal – not to mention that in some cases the landlord may have their own Art.8 rights (consider Gillow v UK (1986) 11 EHRR 335 where the ECtHR appeared to presume that the applicant’s Jersey property was still their “home” even during an extended period where it was let out to other people).

Dave: Forgive the rant but I’m not sure I agree with Chief about the number of cases which are going to cross the “seriously arguable” threshold on a full blown proportionality review.  Lord Phillips even seems to raise the bar when he talks throughout his judgment of the need for a “substantial” ground for a proportionality challenge.  How can a defence advocate plead such a defence without full disclosure from the landlord?  Further, the narrowness of the vision of proportionality (or, rather, blinkered approach to its possibilities) are emphasised throughout, to the detriment of the wide-ranging approach which seemed to have been adopted in Pinnock.  There must be questions as to how this decision sits with Pinnock, which seemed to be suggesting the adoption of a structured approach to proportionality which is dismissed here.  Remember, of course, that 24 paragraphs of the judgment in Pinnock were given over to the application of proportionality to the facts of the case; here, we get just a couple.  The significance of para [35] which Chief highlighted above means that the “social landlord” trumps the usual so that a sort of exceptional exceptionalism applies; personally, I think there’s more purchase in gateway (b) than a proportionality defence (and I never thought it would end up like that).  Conversely, though, if that (ie the logic of para [35]) is the case with social landlords, the same is unlikely to be true of private landlords who have no common public good/interest beyond the pursuit (sometimes) of profit.  So, Chief, I’m not sure that I agree that it will be/should be tougher against private landlords.  How odd to disagree with you, Chief (must be the first time!).

Chief: By way of a brief response, I’m not sure that the difference between us in terms of the end result for an occupier is that great. I still think that the DJ faced with a busy list, still dealing with the 10:30 cases at 12:55, and a duty solicitor (assuming that they will still exist) who is arguing with the LA representative about extracts from both this case and Pinnock, is not going to need too much pressing to grab hold of the opportunity to adjourn and make it someone else’s problem. The ultimate decision is still going to be a possession order most of the time. At least, I suspect that will be the position for a couple of years yet, until we get some loosening of restrictions from the appellate courts. I’m in full agreement over gateway (b) – it is going to be more important to far more occupiers than proportionality than I suspect a lot of people expected.

Following on from that, I must confess that I do wonder whether there will be many, if any, cases where the end result is any more favourable to the occupier than they would have secured post-Doherty and pre-Pinnock. I am left with a nagging doubt whether this is really what the ECtHR envisaged.

NL: I’m coming at this from a slightly different angle – as one who would have to size up the prospects of such a defence quickly on incoming cases. My view is that, while this judgment undoubtedly represents a limiting of the possibilities of Pinnock, it still leaves us in a different place to Doherty, and certainly doesn’t put us back pre-Qazi.

First the difficulties, as noted above. The high initial threshold presents a real and perhaps unbalanced burden on Defendants. A summary consideration, pre disclosure, will be hard where it is the landlord’s failure to consider facts, or follow processes, that is alleged. There were similar problems with Gateway B cases, and it is disappointing that this wasn’t at least reviewed by the Court as a possible issue for practical address in practice directions (HHJ Madge might be busy on those, judging by the reference to him in the Judgment). I fall between Dave and Chief on what will happen in practice. I suspect a lot of cases where the defence is raised will be adjourned out of the possession list, but set down for a short hearing soon afterwards – and at that point, a lot will be dismissed summarily.

The Section 89 point also makes the defence effectively an all or nothing matter. Either no possession order is made or, at best, you get a six week stay that you might have got on exceptional hardship grounds anyway. Perversely, given that the County Court has the acknowledged power to adjourn etc. prior to final hearing, this gives an incentive to the tenant to delay and seek adjournments simply to buy more time where it does not appear that the defence might be strong enough to defeat a possession order altogether. The suggestion in Pinnock that the Court may stay possession for whatever period as was appropriate to satisfy the proportionality of granting the order was both interesting and practical – it is the kind of order that County Court judges would adjust easily to making. It would also have avoided encouraging (at least to the same extent) delay as a legitimate (in the client’s interests) tactic. But here, we are told, 6 weeks will always be enough to satisfy proportionality if an order is to be made.

The presumption of the (public) landlord’s legitimate aims (and with it the abandonment of the structured balancing of interests) places another hefty burden on the the Defendant. But what isn’t addressed here at all is whether this is a) a rebuttable presumption and b) what happens if it is rebutted. For example, and this is one I’ve been thinking about lately, a situation where the public landlord actively procures notice to quit by one departed joint tenant – a la McCann v UK – while having no basis to proceed against the remaining tenant under HA 1985 (or 1988). Can the rule in Hammersmith & Fulham v Monk stand in these circumstances? My view is no – the bare private law right to ownership by itself is not enough to be a legitimate aim. And for anyone saying surely public landlords don’t do such things, they do indeed. Or, for another example, what of a failed successor who will be owed a full housing duty under Part VII if evicted (the facts of Austin v Southwark spring to mind)? If there is no under-occupation, where is the legitimate housing management aim?

On the side of the Defendant, though, I think what we now have is a set of defences that, while they are difficult to sustain and face summary disposal, present a fuller chance of defending mandatory or summary possession claims than previously. Where there is a failure to follow policy, Wednesbury unreasonableness, and other public law grounds, we still have a clear gateway B argument. Where there are personal circumstances, vulnerability etc., we have a proportionality defence and, of course, a combination of the two (as a failure to follow policy also goes to proportionality, for example). Have we forgotten the struggles over what personal circumstances meant in gateway B and whether they could be considered? No longer an issue.

Lastly, and something we raised in response to Pinnock, what of the private sector? Not -rightly- addressed at all in this judgment, but the means by which proportionality is read into statute here and in Pinnock (lawfulness of process and procedure) does not, I think, affect the statutory obligation on the Judge to make a possession order. It seems to me that the ‘shall make an order’ is not actually modified, only the ‘if satisfied that the relevant procedure has been followed’ element. That modification only applies to public body landlords (including RSLs). So there is no precedent at all for the duty of the court as a public body which would be required to deal with, for instance, the proportionality of a s.21 accelerated possession. That would be an entirely different argument.

As mentioned above, this note has been a group effort, so some of the discussion between ourselves is contained in this post. However, we all hope that the debate will continue long into the day/night in the comments below the line (or alternatively long into the next decade in the Court of Appeal).

——
[Chief's footnotes.]

* Or possibly not, depending on your views of the rather strained nature of the theme.

** If you look at the original script this line was probably ad libbed and therefore may have been the creative work of Travolta rather than Tarantino. The mind boggles.

*** NSFW or small children.

**** Including ITs, DTs, and homeless cases Sch.1 excludes a total of 15 categories from security of tenure. It is presumed that proportionality will apply in most of these, although there will be issues about “home” in relation to a number of them and para.11 deals with business tenancies under Landlord and Tenant Act 1954.*****

***** The issue of business premises is the subject of some rather confusing Art.8 jurisprudence from the ECtHR, which is perhaps a topic for another day.

****** We’re told that he rather self-deprecatingly informed the Court of Appeal in these cases that he was in all the cases where the occupier loses.*******

******* Isn’t there some sort of WordPress footnotes plug-in? [Not one that actually works. NL]

Introductory tenancies – These are caught  under the proportionality defence. S.127(2) Housing Act 1996 to be read accordingly.

Section 89 Housing Act 1980 – A court can’t make a possession order that defers possession for longer than the maximum period permitted under s.89, even if it considers it would be proportionate to do so. The Supreme Court declines to make a declaration of incompatibility in respect of S.89. There is no evidence that the period of six weeks maximum is insufficient to meet the needs of cases of exceptional hardship.

Temporary accommodation under Part VII Housing Act 1996 – there is nothing in Part VII which prevents a court from refusing to make a possession order if it considered it was not proportionate to do so. Possession proceedings against occupiers of temporary accommodation provided under Part VII can also face a proportionality defence.

There is no requirement for a local authority (public function landlord) to set out its legitimate aims in making a claim for possession, the presumption is legitimate purpose in managing housing stock. (The bare private law right to ownership is not sufficient by itself). The landlord may set out other reasons if it wishes.

In general, the Court views the prospects of a successful proportionality defence as being in ‘exceptional’ cases.

On the actual cases, Ms Powell had been offered alternative accommodation – appeal allowed on the basis there was no good reason to maintain the possession order. Mr Hall had presented no grounds for a seriously arguable case that the possession order in his case would be disproportionate and his appeal would have been dismissed, but Leeds had already offered him a secure tenancy so there was no reason to maintain the possession order and his appeal was allowed. Likewise, Mr Frisby had advanced no grounds for arguing that the possession order in his case was disproportionate – appeal dismissed. Pyrrhic victories on the whole then.

There is a lot more in the detail, and much to discuss – coming soon.

As if to confirm that housing law is, well, complicated, there is a coda to the Supreme Court decision in Manchester City Council v Pinnock, which has led to a supplementary judgment being handed down. This deals with what order should be made and costs.

The first problem was that the parties couldn’t agree on the consequential order from Pinnock 1 – as you’ll recall, Mr Pinnock’s appeal of the possession order made against his demoted tenancy failed. The initial possession order was made on 22 December 2008, with possession to be given by 12 January 2009. Notice of appeal was served by 26 January 2009, as ordered by the first instance judge.

If the original possession order was found to take effect as from 12 January 2009, Mr P would have been occupying as a tolerated trespasser. He would be caught by the Housing and Regeneration Act in May 2009 and a new demoted (replacement) tenancy would have arisen. The Council had brought further proceedings, based on just that eventuality, but adjourned them. The Council argued that it would be against rational principle for them now to have to restart (or continue) proceedings against Mr P afresh. They argued that the Supreme Court Order should vary the date for possession in the original order to 21 May 2009, thus avoiding the creation of the new demoted tenancy.

Mr P took no issue with the merits of the Council’s position, but nargued that there was no jurisdiction to make such an order, even for the Supreme Court:

The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holman’s order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holman’s order in a way which would mean that, albeit retrospectively, it would conflict with that provision.

But nobody tells the Supreme Court they can’t do something (or at least not if they have an alternative route)

The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Council’s justified concerns which is not open to such objections.
We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011. The effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings. It will come to an end when possession is obtained against him pursuant to our order for possession.

On costs, the Council argued that it should have costs, having succeeded on the central point of the possession proceedings against Mr P.

Mr P argued “for an issue-based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court.”

The Court made no order as to costs on the appeals and the Council’s costs award in the County Court should stand.

The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and therefore the overall justice of the position. The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.

And that should be that.

Tenancy Reform: The “social offer”

The search is for flexible local solutions to individual housing needs (and non-needs, of which see below) and reforms to the current “social offer” (an ugly label used throughout the CP, but, I suppose, is discursively intended to offer as a comparator to the private rented sector -”PRS” – offer).  The current secure tenancy framework is regarded throughout as “inflexible” and a tenancy “for life”.  The way of resolving that is to leave the current security of tenure system in place, and (importantly) protecting the current tenants from the new regime, but introduce a “flexible tenancy” for a proposed minimum of two years which can be granted to new occupiers.  The two year period is up for consultation, but note the point at para 2.49 that “We would for example expect social landlords to provide longer tenancies to families with children as a safeguard against disruptive changes”.

Six months before the end of the fixed term, the landlord is to issue a “minded to” notice if it has decided not to extend the term and offer “advice and assistance” (hopefully more than chucking a list of relevant websites/available accommodation at the recipient).  This may be a positive aspect of the proposal, but raises concerns about how that letter might be framed and how lawyers are to interpret its framing (presumably like a homelessness decision?).  The principle here seems to be similar to the method of determination of introductory/demoted tenancies, with a right to review, but with the added protection of an appeal to the County Court “on the limited grounds that the landlord has made an error of law or a material error of fact” (para 2.32).  I wonder whether that will pass an Article 8 assessment.

Social landlords will have the option of the type of tenancy to grant (secure/assured or flexible) but will have to publish their strategic policy, which appears to require only that they “set out the broad objectives to be taken into consideration by individual social landlords in the area regarding their own policies on the grant and reissue of tenancies” (para 2.19).  Such strategies will be drawn up by local authorities (even non-stakeholding ones) in collaboration with other housing providers and interest groups (eg tenants).  Publication of such policies will apparently provide the requisite transparency.  Some parameters will be set centrally in legislation  and there will be a direction to the relevant regulator of a “Tenancy Standard”.  The terms of that standard will undoubtedly be significant but, at the moment, it is framed essentially as fairly minimalist principles-based regulation which will be “brief and focus on principles, and should avoid detailed prescription” (para 2.43).

Snuck away at paras 2.35-2.37 is an important qualification to all (flexible and otherwise) future social tenancies regarding succession: there will be a minimum right of succession only once and only to the spouse or partner of the deceased tenant.  Social landlords will be able to grant more than that, though.

The right to buy/right to acquire will be retained for all these new tenancies.

The affordable rent regime, under which PRPs are able to grant tenancies at 80% of market rent from April 2011, and will be phased in, but the changes detailed above will also apply to these parts of the social offer (para 2.8).

If I was cynical – and regulars will know that I am – I would suggest that these reforms have been intended to offer a more level competitive set of arrangements between the “social offer” and the PRS, but more of that below.

Initial conclusion: so-called flexibility will result in more complexity and confusion in the short to medium term, with a prediction of legal challenges to possessions and the re-drawing of the intensity of the proportionality defence.

Empty Homes

There are a number of paragraphs in a short section on empty homes, which make much the same set of empty observations as past CPs of the last thirty or so years.  Frankly, rich people with empty homes are not going to be a target of this government.

Allocating social housing

The headline here is that at least some of the 2002 Homelessness Act changes will be unwritten.  Transfer households are to come off the housing register, so that they can more effectively compete for an allocation and use the new national home swap scheme and facilitate chain swaps (paras 4.18-22, and section 5, esp para 5.4 about data pooling and 5.5 about the whizzy new www system).  In other words, because such households may be less needy, they are rarely going to get an allocation/letting under the current scheme.  There will be no requirement for open lettings (unless this is what the local community wants).  There is an odd para (4.7) in which CLG appears to be applauding local authorities gatekeeping practices in respect of households with no chance of an allocation.  But the key para here is 4.9, which delimits the kinds of additional local exclusions which authorities might consider: only those in housing need; residency criteria; past tenancy record; those with sufficient resources toa ccess the private sector.  It doesn’t need a crystal ball to foresee how that might operate (or to predict DDA/Equalities Act challenges).

There is an open question on the reasonable preference categories but CLG’s present position is that they are currently appropriate – or they are leaving the door open to just getting rid of it altogether (but there’s little point after Ahmad anyway).

Homelessness

There are the good bits (ex-offenders and deinstitutionalised patients, although this is for a PRS support scheme: para 6.4) and a decision not to change the priority need categories, and the bad bits (for those with a long memory, remember the DoE’s 1994 CP on homelessness [albeit slightly nicer put here]?).  Basically, a “priority need for housing”, in CLG’s view, should not equate to a need for social housing (para 6.9).  Therefore, they propose to amend s 193 so that an offer in the PRS will count as an offer irrespective of whether the household agrees or not: “This will depend largely on the circumstances of the particular applicant (and his or her household), but also the availability of suitable accommodation in the private rented sector, and the pressure on social housing in the district” (para 6.12).  Anybody following Dave Hill’s oversight of the Westminster CC and Schapps/Freud correspondence will find para 6.13 of interest regarding out-of-area offers.

The offer will be of a PRS AST of a minimum of 12 months and the SoS will take regulatory powers to vary the minimum fixed term length “in the light of experience and market conditions (but this could not be for less than 12 months)” (para 6.16).

Overcrowding

Section 7 is the oddest section of all.  It describes the problems of overcrowding and the complex, obsolete legislation around it, and recognises some good practice, but then “we welcome views on the reform of the legal and regulatory framework concerning overcrowding” (para 7.9).  CLG apparently has no ideas itself, although there is a steer in consultation question concerning the HHSRS (on which see the interesting case of Hashi v Birmingham CC reported in this month’s Legal Action – our note to follow hopefully but we need the transcript, hint, hint).

Regulation

This simply confirms what we already know about the (barking) demise of the TSA and the (equally barking) decentred approach to regulation.

Boris takes over

One last thing snuck away at para 1.25: Boris is to get all decisions over housing investment in London.  Nothing on whether he gets regulatory oversight as well but I guess that follows.

Consultation Period

The consultation closes on 17.01.2011 – responses to the lovely Frances Walker at CLG or by email to housingreform@communities.gsi.gov.uk

Whenever a battle weary group of housing lawyers gets together, conversation inevitably turns (after the routine complaints about the less congenial DJs) to the thorny issue of which is the most important housing law case of all. While bizarre to the outsider, this ritual actually takes the form of a Mornington Crescent-style game, in which the aim is to get to Street v Mountford before somebody plays Puhlhofer and ruins the whole thing. The route to get there varies, although it will normally take in Awua, Pereira, Runa Begum, Din v Wandsworth, Monk, Kay (x2), Doherty, Quick v Taff Ely, Pye (x2), Uratemp, and so on. Someone will go seriously old skool and play Cumming v Danson or Say v Smith, the quiet one in the corner will drone on about how everyone else always forgets AG Securities, there is always an argument about Bruton, but (and if there is a point to this introduction, this is it) there is now a new giant on the scene, one judgment to rule them all and in its 9 strong constitution bind them – the Supreme Court decision in Pinnock (you might like to check out our note on the Court of Appeal’s decision in this case too).

This is clearly an important decision and not a brief one either, so we have decided to roll out the tried and tested co-authored approach that we took with Kay v UK. Comments from various contributors are interspersed throughout the text and there is a group discussion at the end.

Ping pong

There is no need to go through more than a whistle-stop tour of the history here. For more detail you could do little better than head over to A royale quarterpounder, our post on Kay v UK, and you may also want to consider Nic Madge’s take, not least as I’ve borrowed the inspiration for this subheading from him. In fact, you do that now and I’ll wait here for you.

Back? Good. Let’s recap:

Art.8 of the ECHR provides that everyone has the right to respect for their home and that there should be no interference with that right unless it is in accordance with the law and necessary in a democratic society.

In Kay v Lambeth [2006] 2 AC 465 the majority of the House of Lords established that, where a landlord has an otherwise unqualified right to possession, there are only two scenarios where the court should not proceed to summary judgment and an order for possession, which have since become known as gateways (a) and (b) (Lord Hope’s now famous [110]).

Gateway (a) is where it is seriously arguable that the law that enables the court to make the possession order is incompatible with art.8

Gateway (b) is where it is seriously arguable that the decision of a public authority to recover possession is an improper exercise of its powers at common law on the ground that it is a decision that no reasonable person would consider justifiable.

The minority in Kay would, in a nutshell, have made gateway (b) somewhat wider (Lord Bingham’s not quite so famous [39]).

The ECHR in McCann v UK (see our notes here and here) preferred Lord Bingham’s approach. At [50] the Court rolled out the first iteration of a requirement that has since been the subject of much debate:

The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Art.8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.

The action then shifted back to the House of Lords, who in Doherty v Birmingham CC [2009] 1 AC 367 (our note is here) reaffirmed the majority approach in Kay, although they crowbarred a bit more into gateway (b). The net result of Doherty perhaps wasn’t so much that the gateway was widened as that it was given a nice a lick of paint and some new hinges that no longer squeaked or banged about in a stiff breeze.

Undeterred and emboldened by the power of repetition (and the “cut and paste” function in word) the ECHR then proceeded to say the same things (sometimes with reasonableness thrown in for good measure and/or confusion) in Cosic v Croatia, Zehentner v Austria and Paulic v Croatia. However, when faced with the case of Kay v UK, while the ECHR unsurprisingly said the same things, it made clear that it was confining its assessment to the domestic position pre-Doherty, leaving it unclear whether the House of Lords had done enough to gateway (b) in Doherty to render it Convention compliant. While oral argument in Pinnock was concluded before the ECHR gave judgment in Kay, the Supreme Court has had the benefit of written submissions, just as happened with McCann/Doherty.

Demoted tenancies

A bit more history. To understand demoted tenancies (DTs), it is first necessary to consider introductory tenancies (ITs). ITs were brought in by the Housing Act 1996, as a means of tackling anti-social behaviour. They operated as a form of probationary tenancy – indeed the 1995 consultation paper produced by the DoE was entitled ‘Anti-social Behaviour in Council Estates: A consultation paper on probationary tenancies’. Part 5 of the HA 1996 was designed to “enable authorities to deal more effectively with any tendency on the part of new tenants to engage in anti-social behaviour which emerged during the first 12 months of the tenancy … the nub of the scheme is that (provided the authority followed the correct procedures as laid down in the Housing Act 1996 for terminating an introductory tenancy), under section 127(2) of the Housing Act 1996, the county court is obliged to make a possession order.” (Waller LJ at [11]-[12] in R (McLellan) v Bracknell Forest BC [2002] QB 1129). If the procedure (including an internal review) has been carried out an authority’s decision can only be challenged by way of judicial review, see Manchester CC v Cochrane [1999] 1 WLR 809. Cochrane predated the coming into force of the Human Rights Act 1998, but in McLellan the CA held that the IT scheme was compatible with art.6 of the Convention.

ITs were considered such a success (even though research suggested that 90% of evictions of introductory tenants were due to rent arrears, rather than anti-social behaviour) that the next government decided to bring in something similar to deal with those who already had secure tenancies. And so it came to pass that the Anti-social Behaviour Act 2003 introduced a new Chapter 1A to Part 5 of the 1996 Act. The DT regime is clearly modelled on ITs. It is obvious from the wording and the Minister said as much during the Bill’s passage through Parliament (Standing Ctte G, Col 242).

The scheme works as follows. Where a County Court is satisfied that:

1. a secure tenant, a visitor or someone residing in their home, has engaged in or threatened to engage in conduct caught by ss.153A or 153B of the HA 1996; and
2. it is reasonable to make a demotion order,

the CC can then make an order which brings the secure tenancy to an end and replaces it with a DT (HA 1985, s.82A). A DT lasts for a year and then reverts to a secure tenancy unless during that year the landlord serves a notice of proceedings for possession (there are other ways, but they are not relevant here – see HA 1996, s.143A(2)(b)). Service of such a notice has the effect of continuing the DT until either the notice is withdrawn; proceedings are determined in favour of the tenant; or the landlord doesn’t bring proceedings within six months.

The notice must comply with six requirements (s.143E). It must:

1. state that a possession order is being sought;
2. give reasons;
3. specify the date after which proceedings may be begun;
4. that date must not be earlier than the date on which an NTQ would be effective;
5. inform the tenant that they can request a review and how long they have to make that request; and
6. inform the tenant that if they need help or advice they can go a CAB, solicitor, etc.

If a review is requested within 14 days the landlord has to carry out a review (s.143F). The review procedure is governed by the Demoted Tenancies (Review of Decisions) (England) Regulations 2004, SI 2004/1769. When the review is completed the landlord must tell the tenant of the outcome and the reasons for it. If the review upholds the decision and possession proceedings are commenced the court “must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed” (s.143D(2)).

Readers may note that the statute does not set any limits on the types of reasons that may be found in s.143E notices or s.143F review decisions. Various amendments were put forward at Committee stage that would have meant that before the court could make a possession order it would have to be satisfied that both the notice and review procedures had been followed AND that it was either reasonable to make a possession order, or that further ss.153A & 153B conduct, or just generally anti-social behaviour had occurred since the demotion order. These were resisted by the then government on the basis that they would be watering down the effects of DTs and “would effectively require a double possession hearing”.

The Court of Appeal considered DTs in R (Gilboy) v Liverpool CC [2009] QB 699 (our note here) and held that they were indistinguishable from ITs. The scheme was therefore compatible with art.6 and the appropriate route for challenging an authority’s decision to terminate a DT was judicial review.

Facts

Cleveland Pinnock was given a tenancy by Manchester in 1978. This became a secure tenancy when the Housing Act 1980 came into force.

He and his partner, Christine Walker, had five sons – Clive, Trevor, Devon, Orreon & Orraine.

In March 2005 Manchester commenced possession proceedings against him, seeking a demotion order as an alternative. Mr Recorder Scott Donovan gave judgment on that claim on 8 June 2007. He found that serious acts of anti-social behaviour had been committed in and around the property by members of the family, but none had been committed by Mr Pinnock himself. Between 1998 and 2007 32 specific acts were identified. Amongst these were a racial Public Order Act offence, driving while disqualified, and a serious case of blackmail. Several of the offences committed were in breach of various ASBOs. It is perhaps somewhat surprising that the recorder did not think that a possession order was reasonable, but he did order that the tenancy be demoted, commencing on the same day.

One of the terms of the new demoted tenancy prohibited Mr Pinnock and those visiting or residing with him from causing a nuisance or annoyance to any other person.

On 6 June 2008 Manchester served a notice under s.143E of the HA 1996 seeking to terminate the demoted tenancy. The notice relied on two specific allegations: firstly that Clive had caused a nuisance and annoyance by resisting arrest and obstructing a PC; secondly, that Devon had caused a nuisance and annoyance by causing death by dangerous driving and driving while uninsured.

Mr Pinnock requested a review of Manchester’s decision, as was his right. At the review, the panel heard evidence about those two incidents and was also told that Orreon had been convicted of burglary after the notice was served. Before the panel Mr Pinnock and Ms Walker said that their sons were no longer living with them and she sought to blame the police for the fatal car crash that Devon had been involved in.

The review panel upheld the decision to terminate the tenancy. The panel said that it had to be satisfied that he had breached the conditions of his tenancy. The panel decided that the property was the family home and that the sons returned frequently. The panel took into account Orreon’s burglary conviction and Ms Walker’s attempt to blame the police for the car crash, which the panel felt clearly demonstrated that both parents had failed to address their responsibilities as parents. The panel also felt that both parents appeared to refuse to accept the seriousness of their sons’ behaviour and that they chose to behave in an anti-social manner, rather than being the victims of others.

Manchester then issued a claim for possession. HHJ Holman held that he could review the panel’s decision, but only on conventional JR grounds. He held that the incidents involving Clive and Devon did not amount to breaches of the tenancy and if they were the only matters in issue Manchester’s decision would have been Wednesbury unreasonable. However, HHJ Holman went on to conclude that the panel could take Orreon’s conviction into account and made a possession order against Mr Pinnock.

Mr Pinnock appealed to the Court of Appeal and our note describes the outcome of that decision (in which the Secretary of State for Communities and Local Government intervened), but the salient points for now are:

1. The time for the CC to consider proportionality was when it was considering making a demotion order;
2. That procedure was art.6 compliant;
3. There is no difference between the statutory requirement of reasonableness and the ECHR requirement of proportionality;
4. A landlord’s decision to seek possession of a demoted tenant’s property would satisfy art.8(2), unless the decision was one which no reasonable person could consider justifiable;
5. If the statutory provisions were incompatible with the EHRC, a possession order would still be lawful because of HRA, s.6(2)(b);
6. The jurisdiction of the CC to review the panel’s decision was limited to checking that the procedure had been followed;
7. As there was no suggestion that the procedure had not been followed a possession order had to be made;
8. The review panel’s decision would be susceptible to JR in the High Court;
9. The applicable grounds of JR in the High Ct are the standard domestic JR grounds, except that the extended rationality (Doherty) test applies;
10. A review panel is entitled to take into account events that postdated the s.143E notice and the reasons relied upon do not have to be breaches of the tenancy agreement.

A panel of nine of the Justices of the Supreme Court was convened, the Equalities and Human Rights Commission was given permission to intervene, and the stage was set…

The Supreme Court’s Judgment

The Supreme Court’s unanimous judgment was given by Lord Neuberger MR, who was brought back into the fold for this case due to his property expertise. I doubt very much whether all nine were in complete agreement, but think that they have taken the pragmatic view that there has already been too many conflicting judgments on this issue over the years and that the time has come for some certainty.

The Court identified four issues at [21]:

1. Does art.8, as interpreted by the ECtHR, require a domestic court to consider proportionality and resolve factual disputes before making a possession order of a person’s home in a claim brought by a public authority?
2. If the answer to 1. is ‘yes’, what does this mean in practice for claims for possession of residential premises?
3. Can the DT regime be interpreted compatibly with the requirements of art.8?
4. On the facts of this case what should be done with Mr Pinnock?

Requirements of the ECHR

The Supreme Court considered the Strasbourg jurisprudence and was satisfied that the approach of the ECtHR was unambiguous and consistent, and that four propositions had become well established (at [45]):

1. Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end;
2. A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e. one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues; [J - au revoir s.21 and Ground 8]
3. Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with;
4. If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.

[J - although they say "local authority" at [45] in relation to proposition 1, they presumably mean “local authority or other public authority landlord – see also [21], which leaves some fascinating arguments about whether PRPSH can now properly use Ground 8 and s.21. Chief – I agree, that much must be right from [21], but I have tried to use just “local authority” where that is all the Court has used. As whether a PRPSH is a public authority remains, in theory, a question to be resolved in each case this raises the prospect of a discrepancy in the treatment of occupier, at least until the private sector issue is resolved]

The Court went on to say at [45] that:

Although it cannot be described as a point of principle, it seems that the EurCtHR has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain.

Was it therefore appropriate for the Supreme Court to depart from the decisions of the House of Lords in Qazi, Kay and Doherty? The Court noted that the decisions of the ECtHR in Cosic, Zehentner, Paulic and Kay were all given after the HL gave judgment in Doherty. The Court reminded itself that the obligation under s.2 of the HRA is only to take into account decisions of the Strasbourg court, it is not therefore bound to follow every decision of the ECtHR. See our post on R v Horncastle [2010] UKSC 14 for an earlier discussion of how this might relate to the art.8 issue. The Supreme Court felt, at [48], 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.

And went on to say at [49]:

In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. That is clear from the minority opinions in Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham [2009] 1 AC 367. Even before the decision in Kay v UK (App no 37341/06), we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay, that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. [emphasis added by J - this is the kicker, isn't it - this is what all law requires, not just where the claimant is a local authority]

Concerned about the possible implications for tenancies in the private rented sector, the Supreme Court was quick to attempt to confine its conclusions ([50]):

We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out at para 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow v Qazi [2004] 1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at para 52. In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (App no 11949/86) (1986) 10 EHRR 149, 155-156, the Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this Court to express no view on the issue until it arises and has to be determined. [J - which reads, to me, like an invitation to get a private landlord s.21/ground 8 into the High Ct as soon as possible for a gateway A argument. I've got a few transferred in previously but all have settled]

(We have not yet covered Belchikova, but it has been earmarked for an annual roundup of Strasbourg decisions.)

[Chief: I agree that if this is right then it has to cover the private sector as well, eventually. But I am probably alone here in doubting whether it is even right. Is there really the necessary clear and constant jurisprudence? The magic formula doesn't appear until McCann. It has never been approved by the GC. There is the seemingly random addition of "reasonableness". And have they worked out what "in principle" means yet? Does it mean "as a matter of principle, in every case"? If so, why not say that? Does it mean "as a principle, subject to exceptions"? If so, what are the exceptions? Or is it simply that it's "in principle" because it is up to the occupier to raise issues of proportionality? Furthermore, how can it be said that this does not cut across our domestic substantive or procedural law in some fundamental way? It clearly does, that's why we're here. And not just the UK's law, but that of several other European countries too.]

The Supreme Court then moved on to consider the proposition that it will only be in very exceptional cases that it will be appropriate to consider a proportionality defence. This was most recently approved by the CA in Salford v Mullen at [65] & [67] and the SC acknowledged that the ECtHR appeared to have approved the proposition. However the SC went a different way (at [51]-[52]):

… Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v Birmingham [2009] 1 AC 367, para 122, there may be more cases than the EurCtHR or Lord Bingham supposed where article 8 could reasonably be invoked by a residential tenant.

We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights.  It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers. [emphasis added by J - again, as I noted in our newsflash, how does this apply to PRPSH? The allocation and management of LA housing is entirely statutory, via s.21, HA 1985 and Pts 6 and 7, HA 1996. PRPSH have no such statutory strictures].

At [53] the Court agreed with a submission made on behalf of the Secretary of State that a local authority should not be routinely required to plead and prove the justification for its claim for possession. However, the Court noted that in certain cases where a local authority thought that it had particularly strong or unusual reasons, in which case they would need to be pleaded and supported by evidence. Then, at [54], the Supreme Court threw a few more crumbs of comfort in the direction of local authorities:

Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. … Therefore, 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. However, in some cases there may be factors which would tell the other way. [J - crumbs of comfort? This is a recipe for more litigation. What are the factors that point the other way? See also [57], where their Lordships seem to think that the “good sense and experience” of county court judges is the answer. Have they met the county court bench?!]

Consequences for possession claims in general

There would be no need to change anything in relation to secure tenancies – there is no difference in practice between HA 1985 reasonableness and art.8 proportionality. The Court was reluctant to get too far into the issues related to the IT and homelessness regimes, which will be considered in detail later this month. Despite this, the Court felt able to make six general points ([60]-[64]):

1. It is only when someone’s “home” is at stake that art.8 comes into play;
2. Generally, art.8 only needed to be considered when raised by the occupier;
3. When an art.8 point is raised the court should initially consider it summarily, and if the court is satisfied that, as will no doubt often be the case, even if the facts were established it would still be proportionate to make a possession order then it should dismiss the art.8 point;
4. If domestic law justifies an outright order for possession, art.8 may justify granting an extended period of possession, suspending possession conditionally, or even refusing an order altogether.
5. Some statutory and procedural provisions may need to be revisited, such as HA 1980, s.89 or parts of CPR 55, but the instant case was not the appropriate one to resolve them;
6. Proportionality is more likely to be a relevant consideration where there are issues relating to vulnerability due to mental illness, physical or learning disabilities, poor health or frailty, and that the local authority may have to explain why they are not securing alternative accommodation.

[Chief - so point 1 may be the get out for ITs and homelessness accommodation. Buckley v UK tells us that "''Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of art 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. Isn't this an invitation to LAs to move homeless families around in temporary accommodation to prevent any property becoming a home? Point 2 surely means every case where the occupier is represented, speaks to the duty adviser beforehand, just happens to have some idea of the law, or even gets thrown a bone by the judge. So pretty much every case where the occupier turns up. Points 4 & 5 - how is this going to work? I go back to my point about whether this cuts across domestic law in some fundamental way. And point 6 - most people getting an IT or temporary homelessness accommodation will be vulnerable in some way, although I accept that the handful in DTs might not be.]

Demoted tenancies

As mentioned above, a county court has to determine any facts that are in dispute and decide that it is reasonable to make a demotion order before it makes such an order. Lord Neuberger, for a brief moment slipping into the singular, said at [66] that, in relation to the making of the demotion order:

I therefore find it impossible to conceive of circumstances where the requirements of article 8 would not be satisfied by the plain words of the relevant statutory provisions.

The real problem was at the final stage, where a county court was being asked to make an order for possession. The SC acknowledged at [68] that if s.143D(2) were to be interpreted using the traditional techniques of statutory interpretation then it would be hard to see how the county court had power to determine facts or consider proportionality. However, the availability of s.3 of the HRA meant that the Supreme Court had to consider whether it was possible to read the DT scheme in a way that did give this power to the county courts. Specifically, as identified at [75], would this be amending the statute or simply interpreting it. The Supreme Court held, at [77], that the word “lawfully” should be read into s.143D(2):

In our view, if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2). After all, the tenant’s argument in such circumstances would be within the scope of the ambit of section 143D(2), namely that “the procedure under sections 143E and 143F has not been [lawfully] followed”, since lawfulness must be an inherent requirement of the procedure. It must equally be open to the court to consider whether the procedure has been lawfully followed, having regard to the defendant’s article 8 Convention rights and section 6 of the HRA.

At [78] the Court felt that this approach was supported by s.7(1)(b) of the HRA, which provides that a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) may rely on the ECHR rights concerned in any legal proceedings.

That approach disposed of the argument advanced on behalf of Manchester that the appropriate course was in fact for art.8 defences to go off to the High Court ([80]).

It also gave effect to Wandsworth v Winder [1985] AC 461, as it had been applied in Kay and Doherty ([81]). Manchester v Cochrane disapproved.

[Chief - I'm very uneasy about this. I think the SC has arrogated to itself a legislative function far more extensive than is intended by s.3. It runs contrary to the intention of Parliament when enacting the DT scheme, which was done in reliance on McLellan and therefore on Cochrane.]

A further argument had been advanced by Manchester, relying on s.17(1)(a) of the Crime and Disorder Act 1998. This imposes a duty on local authorities to exercise their various functions with due regard to the likely effect on crime and disorder in their area, and the need to do all that they reasonably can to prevent crime and disorder in their area. It was suggested that this could lead to a conflict between a local authority’s s.17 duty and an occupier’s art.8 rights. The Supreme Court disposed of this argument in short order, at [91]-[92]. Firstly, s.17 begins “without prejudice to any other obligation imposed on it”. Secondly, the duty in s.17 was simply to have “due regard”.

Despite the fact that (as I understand it) there was considerable argument advanced during the oral hearing on the effects of s.6(2)(b) of the HRA, its application did not fall for decision as the Court had ruled that the DT scheme could be interpreted compatibly with art.8. Accordingly (at [96]),

The absence of any real debate on the point makes the present case an unsuitable vehicle for any wide-ranging discussion of section 6(2). Nevertheless, we think it right to confirm that, in our view, the subsection has no application to the decision of a local authority as to whether to bring or continue possession proceedings against demoted tenants.

So, the conclusion of all of this?

104. We are, accordingly, of the view that a County Court judge who is invited to make an order for possession against a demoted tenant pursuant to section 143D(2) can consider whether it is proportionate to make the order sought, and can investigate and determine any issues of fact relevant for the purpose of that exercise. It follows that the demoted tenancy regime in the 1996 Act is compatible with article 8.

The Supreme Court went on to make two further points. Firstly, at [106], the Court noted that despite the absence of any statutory fetter on the type of grounds that could be relied upon when seeking possession in a DT case, in most cases what actually happened in practice was that the landlord normally relied upon repetitions of the type of incidents which led to the demotion order. The Court said that the nature of the grounds that could be relied upon may be limited in that way, as a matter of law, but that the point did not need to be dealt with in this case and had not been the subject of any argument.

[Chief - really?]

Secondly, at [107], the Supreme Court revisited its earlier unease about the proposition that art.8 will only come to the aid of an occupier in highly exceptional circumstances. While this held good for possession claims generally, DT cases were different, for two reasons. The first reason was that the county court will already have decided that it was reasonable/proportionate to make a demotion order. The Strasbourg court had stated in Zehentner that proceedings had to be viewed as a whole.

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.

The second reason was that the tenant would have been given the local authority’s reasons for going for possession and will have had the opportunity to have a challenge to the authority’s decision considered by a review panel. The Court noted that this applied to ITs too.

[Chief - but the first reason doesn't apply to ITs. Will a s.193 discharge letter be enough in cases of homelessness to satisfy the second reason?]

Application to Mr Pinnock’s case

Mr Pinnock had not had the proportionality of the possession order against him considered. This left two options – remit to the county court or for the Supreme Court to take that decision for itself. Mindful of the length of time that this case had been going on for and deciding that they could make the decision without any further evidence, the SC decided to take that proportionality decision for itself. The SC defined the framework in which such a decision ought to be taken.

Firstly (and as noted above), nothing in the DT scheme restricted the kinds of reasons that a local authority could rely on. Except for the possible limitation hinted at in [106] the SC thought that the only restrictions should be by reference to domestic rationality and Convention proportionality. Specifically, reasons do not need to be breaches of the tenancy: [115].

Secondly, as a tenant could rely on circumstances that had occurred after the Notice was served upon them, there was no reason why a landlord could not do the same: [116].

Thirdly, a Notice that contains a bad reason is not necessarily invalidated, unless the bad reason is such as to infect the good faith of the landlord: [117].

In this case the only issues of fact that were in dispute were whether Devon was living at the property when he caused death by dangerous driving and whether the incident where Clive resisted arrested caused nuisance locally. The Court decided that whether Devon lived at the property or not, it did not assist Mr Pinnock ([128]-[129]). Even if Devon and the other children did not, and do not, live there, they had continued to visit the property and commit crimes in the area. If they did live there, then Mr Pinnock would have been dishonest and Manchester’s case would be even stronger. In relation to Clive resisting arrest, it did not matter whether this was a breach of the tenancy agreement – it was plainly relevant to Manchester’s housing management functions and was conduct capable of causing nuisance or annoyance to any person.

Therefore, after considering the incidents relied upon, the Supreme Court concluded:

The fact that some (or even all) of the grounds justifying the rationality and proportionality of the Council’s decision to seek possession may not have involved any breach of the tenancy agreement does not give rise to a problem. There is no requirement in the 1996 Act that they should, and, as already mentioned, there is no warrant for implying any such requirement into the statute. The fact that Mr Pinnock may not be responsible for the incidents is not of great significance: the order for possession was not sought or made to punish him. The fact that there may be other remedies to deal with the children is also of little force: rather than seeking ASBOs or ASBIs to keep them out of the vicinity, it is scarcely irrational or disproportionate to decide to remove their parents, whom they undoubtedly visit, even if (which is an unresolved issue) they do not live with them.

An order for possession against Mr Pinnock was proportionate and would be upheld.

Implications & the future

I may be accused of hyperbole in my introduction to this decision. After all, there really aren’t that many demoted tenancies in operation, as the Supreme Court noted at [58]. But the Supreme Court is soon going to be faced with the appeals from Salford v Mullen (our note, with a far better executed Mornington Crescent theme). Although the Supreme Court won’t actually be hearing the appeal in Salford v Mullen in November, it will be hearing the appeals in the cases of Hounslow v Powell,  Leeds v Hall and Birmingham v Frisby. The first of those relates to a homelessness non-secure tenancy, while the latter two concern ITs. We all know that there are plenty of people occupying accommodation in those two categories. Given the SC’s decision it can be said that that proportionality is going to have to be imported into those types of cases unless the property in question is not the occupier’s home. This is an argument that LAs may be able to make some headway with in relation to some occupiers, but I suspect not very many.

[NL: I've kept my interpolations until the end, both because I have little to add to to Chief's excellent account (and J's emphases and comments) and because what comments I have are more general.

First, I think the implications for Introductory Tenancies are clear, even if Hall and Frisby are yet to be decided. See para 82 onwards on Manchester City Council v Cochrane - itself an Introductory Tenancy case and also para 13, noting the regimes are virtually identical.

Second, I don't think it is necessarily hyperbolic to consider this a very important decision beyond the realm of demoted tenancies. This judgment clearly establishes the principle of potential assessment of proportionality of all possession cases (by a public body landlord, on which more below), where there is no comparable art 8 compliant assessment set out in law -reasonableness being the key example for secure tenancies. As J observes, this surely extends to s.21 and Ground 8 claims by PRPSHs/RSLs, as well as all summary proceedings;

Dave adds: might be useful in homelessness restricted cases as well where a PRS landlord seeks possession.

Third, the meaning and extent of an assessment of proportionality are going to be argued out in the County Courts (and no doubt thence the appeal courts) but there are some things we can identify straight away that mark a significant difference to JR principles, extended via Doherty or not. The balancing exercise is for the court to carry out. It is not reviewing whether the LA/PRPSH was acting reasonably in the balancing exercise that it, supposedly, carried out. The court must be satisfied that the decision is proportionate. So this is not a review exercise - see para 35, 38 45(a) etc.. While there may be well a general assumption that the LA would be pursuing a legitimate end (para 53), the court's observations on 'exceptionality' are a counterbalance, and very useful in practice, where public law defences were already being met in the County Court with the question as to why the tenant's circumstances made this an 'exceptional case'.

Dave says: are we then accepting that this decision applies equally to PRPSH?  I think that must be right personally ...

NL - Yes, para 3.

J - unless and until Weaver is overturned by the Supreme Court

Lastly, what happens, if anything, about private tenancies is not surprisingly a question for another day. I can't see how the Supreme Court could even begin to approach that in this judgment and on this case. But there are clear indications (para 50 & 63), that this is potentially on the agenda.

I have to say I was surprised by this judgment. I didn't expect the wholesale new broom approach. I also happen to think that the way s.143 is read to be Art 8 compliant is, to put it mildly, a bit of stretch. I was frankly anticipating a declaration. But it is practically a good thing.]

[J – as ever, NL speaks sense, as entirely befitting his status as a housing law ‘nut’. I confess to a slight nagging doubt about this decision. The endorsement of a right to a proportionality hearing is clearly good, but, even though they Supreme Court has moved away from the “highly exceptional” test but they’re still pretty dubious about the circumstances in which Art 8 will provide a real defence. We’ve now got to educate (D)DJ/HHJ on proportionality. Should be fun.  Given that the demoted tenancy procedure has been found to be lawful, I can see how it could be adapted and co-opted so as to (possibly) make the service of NTQ/s.21 Art 8 proof. The real winners here are, I think, those who want to challenge s.21/Ground 8, whether used by PRPSH or private landlords).

Francis Davey writes – in the long run, and unless the Supreme Court or the ECHR (or both) have a change of heart, I think this may be at least as significant a decision for private sector tenants (of course the argument is stronger, but more complex, where there is an argument that the landlord is a public body). On this point I fully endorse what J has said.

This may be a way of dealing with bad faith evictions under mandatory powers, such as section 21 (for assured shortholds), Ground 8 (for assureds) and notices to quite (for non-assureds). Examples of bad faith might be a retaliatory eviction where the tenant has made a reasonable claim against the landlord or reported their unlawful behaviour; discrimination based evictions (eg the landlord discovers that the tenant has changed gender) or where the tenant has fallen out of favour with the “in” crowd in a fully mutual housing cooperative. In some of these cases it may be that a declaration of incompatibility is all that can be achieved, but in others a delay or refusal of a possession order may be possible. Let’s hope.

Chief – I think Francis has identified a very important point in relation to retaliatory evictions. That must be the new battleground. I think that eviction on the basis of a gender change will already be caught by s.35 of the Equality Act, although Part 4 is riddled with exceptions, so one can never be sure.

On the Radio 4 show, I’m sorry I haven’t a clue, there is a game called Mornington Crescent, in which there are no rules and the outcome is irrelevant as the show is more important than the game.  It is a surreal game in which the winner is the first person to say “Mornington Crescent”.  I was reminded of that game when reading the five cases wrapped up in Salford City Council v Mullen [2010] EWCA Civ 336, which J termed “the Famous Five“.  They each raise the relevance and extent of gateway (b) in two different factual scenarios: (1) termination of a non-secure tenancy/licence occupied by virtue of section 193, Housing Act 1996 (Powell v Hounslow LBC; Manchester CC v Mushin); and (2) tenancies terminated under the introductory tenancy regime contained in Part V, Housing Act 1996 (Hall v Leeds CC; Frisby v Birmingham CC; Mullen v Salford CC).  Gateway (a) was not argued before the CA in these cases because the CA is bound by Kay and Doherty, and all of the five occupiers reserved the right to argue gateway (a) in the SC.  These are cases in which there are no rules – or, at least, counsel for three of the five local authorities (Salford did not appear) argued that Wandsworth LBC v Winder [1985] AC 461, which forms the basis of gateway (b), didn’t decide, erm, what it did decide – and the outcome is entirely irrelevant – as the main show is the nine person SC in Pinnock, with which the famous five were seeking to join (perhaps to make a suspicious six).  However, the outcome was that four out of the five local authorities won; Manchester lost and one will need to look into the mind of Jon Holbrook to find out why.  Permission to appeal was granted in Powell and Hall as the best specimens, so to speak; permission was refused, subject to submissions, in the others.

The first thing to answer, then, is why did the CA bother at all and not just wave the cases through. Their line was that the SC should have a broad range of cases and county courts need urgent guidance (an understatement, I’d say) about how to deal with gateway (b) defences to possession proceedings.  Whether those courts find that guidance here or not is open to doubt.

There are five questions of law considered: (1) does section 38, County Courts Act 1984 exclude a gateway (b) defence in all cases? (2) do the particular statutory schemes exclude the taking of a public law defence in the county court? (3) does gateway (b) involve a full proportionality review? (4) How wide is gateway (b) in the context of the specific statutory schemes? and (5) what “decision” or “decisions” can be challenged through gateway (b) (that is, just the decision to serve the notice to quit [ntq] or all decisions leading to possession – this is the ongoing battle between two lines of CA judgment, respectively Doran v Liverpool CC  [2009] EWCA Civ 146and Central Bedfordshire DC v Taylor [2009] EWCA Civ 613, discussed also in our note of Barber v Croydon LBC [2010] EWCA 51).  Waller LJ gives the judgment of the CA, but Patten LJ gives a supporting judgment which specifically considers the position in Manchester CC v Mushin.  This was the only case lost by the local authorities and was, if I might say, surreally argued – more of that at the end because it’s just weird and not exactly on point as it turns out.  Waller LJ takes each point in turn as follows:

Section 38 ([47]-[49])

Section 38 is the curious provision which disentitles a county court from giving the remedies of certiorari and mandamus.  From that small seed, it was argued by Hounslow, Leeds and Manchester that a gateway (b) defence is not open to a Defendant at all in the county court and, in the alternative, Wandsworth LBC v Winder [1985] AC 461, properly analysed, only gives rights to defend private rights using public law.  These amount to possibly the most bizarre submissions I’ve ever come across from mostly ordinarily sensible people.  They could not possibly succeed without unwinding twenty five years of case law, the whole of gateway (b) (because one would have to make an application for permission to bring a JR if they were right), not to say Doherty etc.  Clearly the CA were bound and this was a hopeless argument.  The only local authority counsel who comes out of this well is Jonathan Manning who did not take this point at all and rightly so.  Yes, gateway (b) can be procedurally messy because of the remedy problem caused by section 38, but that does not mean it cannot exist.

Statutory Schemes ([50]-[55])

This submission was stronger for the local authorities with a muted “Mornington Crescent” being raised in the introductory tenancy cases.  The submission here  was that the statutory schemes precluded the raising of a gateway (b) defence to the possession claim.  The homelessness cases were never going to succeed because there was CA authority in the way (Barber and McGlynn v Welwyn Hatfield DC [2009] EWCA Civ 285).  Hounslow nevertheless foreshadowed their SC argument with the claim that gateway (b) only arises in exceptional circumstances where domestic law contains an insufficient safeguard against an Article 8 violation, a proposition roundly rejected on authority.

The introductory tenancy cases are successful on this point in the sense that the statutory provisions make clear that the county court judge has no discretion but to grant a possession order once the procedural elements around the s 128 notice have been complied with (s 127(2)).  Manchester CC v Cochrane [1999] 1 WLR 809 and R(McLellan) v Bracknell Forest BC [2001] EWCA Civ 1510 stand in the way of the alternative construction argued for the occupiers (ie that they could bring their gateway (b) defence in the county court, rather than by commencing a fresh JR application).  Although it was argued that Doherty had “swept away” Cochrane and McLellan, the CA decision in Pinnock stood in their way, particularly as the introductory tenancy and demoted tenancy regime are essentially identical (at [54]).  This point, then, was won by the local authorities and leaves us with a rather awkward scenario (what if the County Court refuses an adjournment, but there is a successful permission application for a JR?).

Proportionality ([56]-[61])

The next two questions concern the scope of a gateway (b) review.  What degree of scrutiny/intensity does it entail?  It will be remembered that Lord Hope in Doherty at [55] said that “… it would be unduly formalistic to confine the review strictly to traiditional Wednesbury grounds” but that just begs the question.  The CA hold that it does not extend to a full proportionality review, citing Doherty as their authority.  That really foreshadows the real issue which is that it’s beyond Wednesbury but less than proportionality, and we know that some judges have said that you can’t really pass a sliver of paper between Wednesbury and proportionality, which leads to …

Width of Gateway (b) ([62]-[67])

This section begins with a citation from Dyson LJ’s judgment in Smith v Evans [aka Buckland] [2007] EWCA Civ 1318, at [44], that “It will only be in a truly exceptional case that it will even be seriously arguable that [a gateway [b)] defence will succeed”.  They go on to quote extensively from Lord Bingham in Kay because there’s not much difference between him and the majority in Kay, the need for highly exceptional circumstances even on his braoder formulation, and his judgment was approved by the ECHR in McCann.  The question this gives rise to is the extent to which personal circumstances are and can be relevant in a gateway (b) defence.  The answers are different depending on the statutory scheme, according to the CA.  As regards the introductory tenancy regime:

… the question will be whether there is some highly exceptional circumstance which should lead to the County Court adjourning the matter so that Judicial Review can be applied for in the Administrative Court. Circumstances personal or otherwise which Parliament must have contemplated would be likely to be present in the context of such a scheme could not be considered as ‘exceptional’ never mind ‘highly exceptional’. Thus for example it would be contemplated that difficult questions of fact as to whether anti-social behaviour had occurred or not would be something that Parliament would contemplate as likely. A Local Authority would not have to conduct a full inquiry to establish the truth or otherwise of such allegations knowing that those are just the situations in which getting witnesses to attend and give evidence would be difficult. With allegation and counter-allegation the Local Authority has to take a decision and unless it could be shown that it was arguable that no reasonable authority with the duties it had to perform in relation to managing its social housing could have taken the decision, there should be no question of adjourning the case until a tenant had brought judicial review proceedings.

With the homelessness cases, a different approach was required because of the different statutory scheme which enables a defence to be run in the county court, andthe ntq cannot be challenged directly through the review procedure.  But: the gateway (b) defence would need to be highly exceptional if the local authority were going to continue to provide accommodation, perhaps in a smaller place; there is an internal review of certain decisions under section 193 available through which the occupier can make full representations; and it should be remembered that the purpose of the homeless legislation is limited.  In summary, then, Barber was an example of the kind of case which is highly exceptional (although see below) because the local authority were unaware of Barber’s mental illness when they served the ntq but: “Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation” (at [67]).

Decision or decisions? ([68]-75])

This is the most interesting aspect of the decision, to me at any rate.  The question is whether one can only challenge the ntq through a gateway (b) defence, as suggested in Doran, or whether each separate decision taken by the local authority (or RP) on the way to possession is defendable through gateway (b), as in Taylor and Barber.  I have never seen how it can be as limited as Doran suggests, but it is particularly interesting to see the SoS arguing that Doran is correct.  They do so for three reasons: Doran allows the facts as they appeared or should have appeared to be considered, and therefore is not as limited as we thought; the Taylor approach causes practical problems of its own in enabling occupiers to lengthen possession proceedings, making them more expensive and costly and here, they use the example of ASB stopping after the ntq or at a later stage before possession; finally, the whole point of gatewway (b) was that the ntq or a rent demand was ultra vires and void as in Winder (which rather repeats the modified section 38 argument).  The CA reject these submissions (at [73]) and felt bound by Taylor as it had been accepted in Barber (at [74]).  They reject the first submission because it does not deal with a wholly new event occurring after the ntq, such as the occupier becomes seriously ill.  They reject the second submission because:

… we do not accept there is a practical difficulty in a situation in which an introductory tenant brings forth facts which show he has now improved his behaviour; a local authority will be bound to consider whether it should continue with the  proceedings but it will not be arguable that it is unreasonable for the Local Authority to continue with them having given the tenant his or her chance and with others waiting for accommodation.

And finally …

there’s Manchester CC v Mushin.  In summary, Mr Mushin’s wife and family left the home provided by Manchester under Part VII due to Mr Mushin’s domestic violence.  Manchester served an ntq and Mr Mushin relied on a gateway (b) defence on the basis that he did not commit domestic violence and he wanted to stay at the property in case his wife and children reutrned.  At the trial Manchester relied on Mr Mushin’s over-occupation but conceded that, if it was proved that domestic violence had been the reason for the service of the ntq, then a gateway (b) defence was open to him and should succeed if he had not had the opportunity to rebut the charge of domestic violence.  Manchester sought to withdraw those concessions intheir amended notice of appeal and skeleton.  But Jon Holbrook, for Manchester, decided not to seek to withdraw them preferring apparently to attack the judge’s findings of fact on this point.  As Waller LJ put it, “… the argument should have been that because Mr Mushin was in fact in accommodation for a family whereas he was now single, the court should have granted a possession order and  any challenge to unsuitability should have been brought by Mr Mushin under the relevant sections applying to the homeless” (at [43]).  Indeed, “there was nothing highly exceptional about Mr Mushin’s position – it possibly would have been if his wife and family wanted to come back and live with him, but the local authority continued its claim. 

Was there in reality any evidence on which the county court judge could base his finding that the ntq had been served because of the domestic violence?  Well, yes, actually, quite a lot.  Granted there had been two ntqs, only the first of which was relied on; although the housing officer at the time said that he thought it had been served on the basis of underoccupation, against that was the case history and the fact that the housing officer was one cog in the wheel, so to speak.

Conclusions

Forgive me some brief concluding thoughts, perhaps taking account of some of the observations made at last week’s conference as well (not really a law practitioner’s event, but lots worthwhile going on).  What it boils down to is whether there is a highly or seriously arguable gateway 9b) defence in which personal circumstances seem to play some role at least.  Barber is regarded as exceptional, but this is, of course, an empirical question and I wonder whether that notion of “exceptional” is actually brought out in the everyday lives and practices of local authorities and RPs, as well as occupiers.  We are still left with the real bottom-shifting question: what is exceptional?