This will be a quick note, as the general principle has been established that proportionality defences are available for Housing Association ‘starter tenancies’, being assured shorthold tenancies, where possession is sought via section 21 notice. In addition, Ms Thomas was in person, and failed to appear, after her solicitors came off the record for lack of co-operation, so the extent of argument was limited.

Ms T was Riverside’s starter tenant, on an assured shorthold tenancy from 6 April 2009. By JUne 2009, Riverside were aware of complaints of ASB and a notice requiring possession was served in July 2009. Ms T was offered a ‘right of appeal’ and a hearing took place in September 2009 before a panel of Riverside representatives. The ‘appeal’ was refused and a claim for possession issued. A defence and counterclaim was filed. After adjourned hearings, the claim was stayed pending the decision in Pinnock.

In the meantime, following continued allegations of ASB, Riverside had sought and obtained a 2 year ASBI. On allegations of breaches, committal was sought and this was listed at the same time as the re-listed possession hearing. The whole matter was then bumped to the High Court when Ms T’s revised Defence and Counterclaim pleaded that Section 21 possession procedure was incompatible with the ECHR.

The issues as presented in the amended Defence and Claim were that domestic legislation permits the imposition of a suspended or postponed possession order on terms in a starter tenancy possession claim and, alternatively a declaration of incompatibility as against section 21. There was also a proportionality defence, following Pinnock and Powell. In addition, Ms T contended that fresh allegations of ASB, following the ‘appeal hearing’ should bring a right to a fresh internal appeal.

Riverside conceded that it was a public body. It further conceded that its ‘starter tenancy’ scheme was analogous to (and based upon) the introductory tenancy scheme, so that Pinnock and Powell applied precisely.

The High Court (Mr Justice Ryder) decided that the issues to be determined were:

(a) Where possession proceedings are issued and there are then allegations of further anti-social behaviour is the Defendant entitled to a further internal appeal?

(b) Ought the court to consider the possession claim summarily?

(c) Does the court have power – in principle – to suspend or postpone possession on terms and, if so, ought it to do so?

(d) Ought there to be a declaration of incompatibility in relation to section 21?

On (a), the Court held that there was no such entitlement. A process that required further internal reviews to run, presumably alongside litigated proceedings, for each fresh allegation would be cumbersome and unneccessary. It would plainly fly in the face of:

the whole rationale behind the accelerated possession procedure which does allow personal circumstances (and where necessary facts) pre and post the issue of proceedings to be considered, albeit within the scope of the decisions in Pinnock and Powell

On (b), the Court considered Pinnock and Powell, taking the view that in the case of an introductory tenancy (and by analogy, a starter tenancy) the Court should consider a proportionality defence

only “in very highly exceptional circumstances” if the Article 8 issues have crossed the “high threshold of being seriously arguable”. (See Powell at paragraphs 92 and 33).

As the Court should only consider the defence in ‘very highly exceptional circumstances’ it followed that this stage would only be reached in a small proportion of cases [See my comments below]

This is particularly so since (i) in virtually every case where a residential occupier has no contractual or statutory protection and the landlord is entitled to possession as a matter of domestic law, there will be a very strong case for saying that the making of a possession order will be proportionate; (Pinnock at paragraph 54) (ii) there is a relatively low threshold for the landlord to cross to justify terminating an introductory tenancy; and (iii) there are significant procedural safeguards within the introductory tenancy system including the provision of reasons for seeking possession and the right to a review of that decision. (Powell at paragraphs 90, 92 and 94). This analysis applies equally to the Claimant since the Claimant’s starter tenancy regime effectively mirrors the introductory tenancy scheme in all material respects including the provision of reasons and right to a review (which was exercised in this case).

In the absence of ‘very highly exceptional circumstances’ the Court should make a summary possession order.

Where a proportionality defence was raised, the Court’s powers extended to reconsidering for itself the facts found by the landlord, or that had arisen since the commencement of proceedings. However:

it is not a requirement in the introductory tenancy scheme nor is it a requirement of the starter tenancy scheme for facts to be proved in order to justify a decision to terminate a tenancy. Rather the right question under these schemes is whether in the context of allegations and counter-allegation it is reasonable for the landlord to take a decision to proceed with termination of the tenancy (Powell at paragraph 93).

In any event, in this case, facts had been admitted by the Defendant in the injunction proceedings.

The Claimant submits that in the instant case the Defendant is arguing for a full consideration of proportionality from a remarkably weak position – for example having already been made the subject of a two year injunction based on admissions of anti-social behaviour and in a position where she faces two outstanding committal applications in respect of breaches of the injunction and there have been ongoing allegations of anti-social behaviour from neighbours, all of which are evidenced before the court and which continue up to September 2011. I agree.

While the Defendant had raised mental health and alcohol abuse vulnerabilities in an earlier hearing, no further evidence had been raised in relation to these and these were no sufficient evidence to say the ‘seriously arguable’ threshold had been crossed in any event.

On the Claimant’s argument that the ‘public policy’ reasoning for introductory tenancies acknowledged in Powell extended to starter tenancies and the s.21 procedure, the Court found:

The court accepts that the Claimants reliance on “public policy reasons” taken from the judgment of the Supreme Court in Powell should be received with caution. This decision was made following consideration of evidence provided by the Secretary of State for Communities and Local Government in relation to the introductory scheme. This is a specific statutory scheme introduced by Parliament. Evidence was provided to explain the public policy reasons for introducing those provisions. There is no such evidence concerning the starter tenancy scheme because Parliament has not (yet) introduced such a statutory scheme. This is a scheme introduced by individual landlords and has no statutory force save for the underpinning provision of section 21. When section 21 was introduced it was arguably not based on the same public policy reasons that the introductory tenancy scheme was introduced. However both schemes provide for temporary security of tenure and in my judgment despite this caution and in the absence of full argument, it appears to be right to read across public policy reasons in the manner contended for by the Claimant

Summary possession order granted.

On (c) – a power in principle to suspend possession or impose terms – there was no other power save that in s.89 Housing Act 1980, 14 days or 6 weeks in cases of exceptional hardship.

On (d) – the declaration of incompatibility:

44. The Secretary of State, through the Treasury Solicitor, considers that this issue has been answered in Pinnock and Powell. I agree. No issue of incompatibility arises with regard to section 21. So far as section 89 is concerned its meaning and effect is plain and no incompatibility arises here either.

45. In any event a declaration would add nothing, and would change nothing, as between the parties to this litigation. It does not provide grounds for granting any form of relief against the Claimant (section 4(6) of the 1998 Act).

Immediate possession order made and the matter set down for the hearing of the first committal application.

Comment

This was, by any measure, a very weak case for the Defendant. Admitted and ongoing ASB, solicitors coming off the record and a lack of detailed argument together make this a case that was doomed to fail.

However, there are two areas of concern in the way the Court approached the matter.

The first is that, while admitting an absence of argument on the point, the Curt was prepared to extend the ‘public policy’ justification for limited security of tenure from introductory tenancies to ‘starter’ tenancies, apparently simply on the basis that the Claimant asserted its starter tenancy regime was modelled on the introductory tenancy scheme. This may need to be argued in detail in future.

The second is the use of ‘very highly exceptional’ as a threshold. This is, as we’ve argued before, not an accurate response to the use of the term in Pinnock, and the sole reference in Powell (at 92), referred to in this judgment, makes clear that exceptionality is a question of outcome, not a threshold test:

In paras 51 to 53 this Court in Pinnock commented on the proposition that it will only be “in very highly exceptional cases” that it will be appropriate for the court to consider a proportionality argument. I believe that this proposition is an accurate statement of fact in relation to introductory tenancies. This is because the judge should summarily dismiss any attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for advancing this. Two factors make it extremely unlikely that the defendant will be in a position to do this. The first is the relatively low threshold that the authority has to cross to justify terminating the introductory tenancy. The second is the significant procedural safeguards provided to the tenant that I have described in para 90 above.

The issue is solely the seriously arguable threshold. There is no ‘exceptionality’ test. It is disappointing to see the High Court apparently adopting it.

In any event, the ‘exceptional’ outcome is in relation to all introductory possession claims, not those in which a proportionality defence is raised. It would be theoretically possible for all proportionality defences to successfully raise seriously arguable defences and for the outcomes to still be exceptional.

Facts – Scott

In December 2009, Ms Scott was granted an introductory tenancy by Corby. In May 2010 she began to accrue arrears of rent and by August 2010 she owed £285. Corby served a notice of possession proceedings, but shortly afterwards Ms Scott’s mother cleared the arrears. Rather than issuing a claim for possession Corby served a notice on Ms Scott extending her introductory tenancy by another six months.

Despite this warning, Ms Scott quickly began to accrue arrears again and by October 2010 owed £285 again. Corby served a new notice of possession proceedings. Ms Scott did not request a review. In December 2010, Corby issued a claim for possession.The arrears were then £335.

The matter came on before a district judge who appears to have adjourned the first hearing on terms that Ms Scott pay current rent plus £3.40 and then gave directions for trial at a second hearing. However, the arrears continued to rise and Ms Scott’s mother was once again called upon to the clear the arrears which she did through two payments in June 2011 and July 2011. The last payment was the day before the trial.

At trial HHJ Hampton acknowledged that she was required to give Corby possession unless Ms Scott could defeat the claim by satisfying the court that her eviction would amount to a disproportionate interference with her Article 8 rights. To do this Ms Scott was required to “establish highly exceptional circumstances”.

HHJ Hampton dismissed the claim. She found that there were highly exceptional circumstances for the following reasons: Ms Scott had been the victim of a serious assault in July 2010 (which was described as a murderous assault) and her arrears had been cleared by the date of the trial.

Unsurprisingly, Corby appealed.

Facts – Haycraft

In May 2009, West Kent HA granted Mr Haycraft an assured-shorthold tenancy. It was to be a starter tenancy and would eventually become fully assured. Two days after the tenancy had been granted a vulnerable neighbour alleged that Mr Haycraft had exposed himself to her. Further allegations of noise nuisance and verbal abuse were also reported in the following ten weeks. However, it was accepted that there had been no nuisance since the summer of 2009.

In September 2009, West Kent HA served Mr Haycraft with a s.21 notice. However, this notice was abandoned (presumably because it was served within the first six months of the tenancy) and a further notice was served in March 2010. Mr Haycraft asked for a review of the decision to evict him and at the review hearing contended that he was not guilty of exposing himself and relied upon a letter from the police stating that he would not be prosecuted. However, the panel conducting the review decided that he had exposed himself and upheld the decision to seek possession.

In October 2010, a deputy district judge considered Mr Haycraft’s defence summarily and made an order for possession (he did not allow Mr Haycraft to rely on an Article 8 defence because the hearing was heard before Pinnock had been decided). Mr Haycraft appealed to a circuit judge. HHJ Simpkiss permitted him to rely on his Article 8 defence, but dismissed the appeal. He did not hear evidence and was satisfied that Mr Haycraft had exposed himself. He further found that the fact Mr Haycraft would be homeless if evicted, had a family and liver and kidney problems did not warrant a trial, let alone warrant the claim for possession being dismissed.

Mr Haycraft appealed.

Court of Appeal

Scott

The appeal was allowed. The case should not have proceeded to trial, let alone resulted in Corby having their claim for possession dismissed. The fact that Ms Scott had been the victim of a serious assault was completely irrelevant to her Article 8 defence; there was no evidence that the attack had mentally or physically injured Ms Scott so that her eviction would be particularly harmful to her. Nor did it explain why Ms Scott had failed to pay her rent. While it might be exceptional, it was wholly irrelevant.

Nor could it be said that the clearing of the arrears the day before the trial was a factor in Ms Scott’s favour. Save for in extraordinary circumstances, the fact that a defendant has cleared their arrears before a hearing should not be sufficient to cross the high threshold required for the court to give directions for a contested trial. It was “fanciful to suggest that a residential occupier should be able to pray in aid the fact that she has paid the landlord money which she owed him.”

The Judge had erred by concentrating on whether the facts were exceptional; exceptionality is not a measure of outcome, albeit it is a useful “cross-check” for judges when deciding if a defendant should be able to invoke Article 8.

Haycraft

The Court of Appeal dismissed the appeal. The decision that Mr Haycraft had exposed himself had been arrived at after a hearing. The conclusions were well articulated and well reasoned. Mr Haycraft had not come up with any new points that challenged the finding and had not called into question the fairness of the hearing. It followed that the county court was not required to hear evidence on this point as the association was only required to consider “whether in the context of allegation and counter-allegation it was reasonable for the [association] to take a decision to proceed with termination of the … tenancy” (i.e. the test set out in McClellan which was approved by Lord Phillips in Powell).

The absence of further behaviour was mitigation for his behaviour, but it was no more than that. Moreover, while it was accepted that Mr Haycraft was not in good health, there was no evidence that his health would worsen if he were evicted.

In relation to his prospects of re-housing it was accepted that he would be likely to be found to be intentionally homeless, although his family wouldn’t. However, this was not a significant factor as Article 8 merely affords a person respect for their home rather than a right  to a home. The absence of a right to be re-housed cannot therefore be a factor in favour of dismissing the possession claim, while the right to be re-housed is a factor that would weigh against an Article 8 defence.

The Court of Appeal declined to give guidance on how such claims should proceed procedurally as they thought that any comments might do more harm than good. However, they repeated the point that hearings should not proceed to a trial unless they crossed the high-threshold and emphasised “how exceptional the facts relied on by any residential occupier must be, before an Article 8 case can have a real prospect of success.”

Comment

My view is that this case adds another nail into the great Article 8 defence coffin.

First, the Court of Appeal has re-iterated just how high the threshold is. Even where someone has poor health and has behaved themselves for the best part of a year that won’t be good enough.

Second, the Court of Appeal has, in my view anyway, ruled out the need for evidence in ASB cases where a review hearing has been carried out and findings of fact have been made against the tenant. If a council or association have weighed up the allegations and counter allegations, and done so in a way that was procedurally fair to the tenant, the county court should not hear further evidence on the subject. Unless a tenant can produce evidence which shows that the decision reached after the review hearing was Wednesbury unreasonable a county court should not give directions for a trial.

Finally, they have made clear that the fact a tenant may become homeless is not a factor that should weigh in his favour.

What are we left with? Well my view is that unless you have a public law defence or highly exceptional personal circumstances you aren’t going to get very far. At the time that Powell came out I commented that I didn’t really think that the law had moved on a huge amount since Kay and I think the approach of the Court of Appeal simply reinforces that.

We are also left with a test that appears to be: the question for the courts is not whether the facts of the case are exceptional, however, it will only be where are truly exceptional facts that the high threshold will be crossed. Good luck explaining that to the district judges of England and Wales.

Joe Halewood, who runs a fine blog on supported housing at SPeye, has unearthed a rather alarming statement from the DWP buried in the impact assessment on under occupation changes to HB for social housing from October 2011. The passage (at para 5) reads:

“From 1 April 2013 it is intended to introduce size criteria for new and existing working-age Housing Benefit claimants living in the social rented sector. The size criteria will replicate the size criteria that apply to Housing Benefit claimants in the private rented sector and whose claims are assessed using the local housing allowance rules”

The implication is that this would include the shared accommodation/single room limit for single under 35s being applied to social housing. Joe has sought clarification from the DWP and we understand that Inside Housing may have as well, but so far, nothing from the DWP.

Does anyone know anything more about this? The effects could clearly be drastic. And does the DCLG know about this?

[Update 15 March 2012. The position of CIH on this is that the regulations, currently being drafted, have the effect that the power is to make a deduction based on the number of people in relation to the number of bedrooms. Under this method there cannot be anything smaller than one bedroom. We understand that the CIH are involved in the drafting process.

However, this doesn't explain the use of the word "replicate" in the DWP Impact Assessment. While it appears unlikely that the forthcoming property size regulations will have the effect on the under 35s feared, it would be good to have clarification from the DWP.]

In essence, what happened was that Ms Hyacienth, a single mother with two young children, took an introductory tenancy of a Soutwark property in June 2008.  Housing benefit clawed back an overpayment, which gave rise to rent arrears.  She also had a load of other debts with the bailiffs knocking at her door, taking furniture.  Southwark have a policy for early intervention, assessment of vulnerability, provision of advice and benefits/debts/budgeting.  They also have a policy that agreements for rent arrears should only be made during the first six months of an IT, and there should be a six month arrear free period before the 12 month duration of the IT expires.  Arrears not surprisingly arose quite early on and Southwark did make efforts to contact Ms Hyacienth but to no avail.  Then in December, there was contact and this was, as the HHJ put it, “the pivotal moment”.  She made promises as to payment of the arrears, the HB clawback was identified as a problem, and she was having real problems managing her finances and making promises.  She’s told (inaccurately, by my calculation) in early December that as the tenancy was more than six months in, Southwark wouldn’t make an agreement; then, later that month, they do make an agreement for the arrears to be cleared by 04 January; but she calls back the same day to say that she won’t be able to do so, to be told that she must do so.  After that period there was nothing.

Southwark then run through the numbers to end the tenancy – they served notice on 06 March; a review is carried out which confirms the decision to proceed; the claim is issued; and on 25 September, the District Judge makes a possession order at a hearing at which Ms Hyacienth attends unrepresented.  She does not raise an Article 8 defence – proportionality – or gateway (b) defence at this hearing (not surprisingly).  She then circuitously arrived at Mr Thomas’ door.

From these unpropitious facts, Mr Thomas and her counsel, Alice Hilken, constructed the successful gateway (b)/proportionality defence.  Quite how they did so successfully, I’m still not sure.  They also managed to get the possession claim dismissed leaving Ms Hyacienth a secure tenant.

Well, I do kind of know how they did so.  Basically, it is absolutely crystal clear that Southwark did not follow their policies for vulnerable persons, such as early intervention and advice etc.  As the HHJ put it, by the time of the review, Ms Hyacienth was faced with an “uncompromising approach” by the bureaucracy – “no agreement because you are 6 months into your tenancy and you must pay all the arrears.  This was in no sense tailored to her situation, it was not helping her in a constructive way and … she was not directed to agencies that might assist her”.  The reviewers nor anyone in the council had considered their policies and procedures.  So, all of this was really bad practice and procedurally irregular – and the HHJ clearly has Barber v Croydon LBC [2010] EWCA Civ 51 in mind.

Southwark did not help themselves either.  They failed to file the McLellan witness statement explaining how they operated the review process with the original claim, which the HHJ seems to have regarded as a requirement, not just good practice, as it enables the occupier to make a decision as to whether to raise a public law defence.

But none of this was raised before the DJ at the possession hearing, and so the basis for the appeal is unclear, certainly if it is based on proportionality.  The clear guidance given by the SC in Pinnock and Powell is that it is for the occupier to raise the defence.  The HHJ says that the absence of the McLellan witness statement meant that the Judge felt bound to make a possession order although enquiry was made as to the review process.  But it all seems a little late to make these arguments on appeal.  This point was clearly made to the HHJ (as was the dicta in Powell about the purpose of the introductory tenancy regime, requiring a high standard of behaviour, and all that guff) and who does not really comment on it.   Don’t get me wrong – it’s fantastic to see this kind of success – but my instinct would have been to apply to set the original judgment aside as opposed to appeal it.  That instinct wouldn’t have yielded the same outcome for Ms Hyacienth though (- note to self: be bold, be brave!).

Then, there is the actual outcome itself: claim dismissed.  The HHJ uses Eastlands Homes v Whyte [2010] EWHC 695 (QB), at [65], as the basis for this outcome.  There, HHJ Holman applies his position developed from his judgment in Pinnock (at first instance) that the possession claim must be dismissed in the face of a successful public law defence (citing also Barber and Pinnock in the CA).  This seems to me to be a rather touchy issue and underdeveloped (no doubt principally because there are so few successful cases), but a successful public law procedural irregularity claim would lead to a quashing order requiring “the decision” (the review, the decision to issue the claim,  or the decision to proceed with the claim to hearing/appeal?) to be made again (having said that, though, the HHJ, with a final flourish, declares Southwark’s decision also to be Wednesbury unreasonable for not following its own guidance, which suggests that the claim dismissed remedy is proper).  That was Southwark’s submission here and I’m afraid I’ve got some (limited) empathy with it.  The type of tenancy seems important when remedy is being considered – if, as in Barber, the tenancy is non-secure, one can see why “claim dismissed” is appropriate because the public authority has to go and make the decision again; but, where the tenancy is introductory, that outcome has rather different effects as the authority can’t make that decision again as the tenancy is likely to be secure by that time.   The HHJ, however, viewed it “as a matter of practicality” and “there is no going back or ascertaining what would have happened if appropriate help and guidance had been given earlier.  Nor what the review panel would have decided if they had conducted a more thorough review”. Hmm.

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.