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

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

Ping pong

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

Back? Good. Let’s recap:

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

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

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

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

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

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

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

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

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

Demoted tenancies

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

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

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

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

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

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

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

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

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

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

Facts

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court’s Judgment

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

The Court identified four issues at [21]:

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

Requirements of the ECHR

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

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

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

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

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

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

there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.

And went on to say at [49]:

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

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

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

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

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

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

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

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

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

Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. … Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way. [J - crumbs of comfort? This is a recipe for more litigation. What are the factors that point the other way? See also [57], where their Lordships seem to think that the “good sense and experience” of county court judges is the answer. Have they met the county court bench?!]

Consequences for possession claims in general

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

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

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

Demoted tenancies

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

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

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

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

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

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

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

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

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

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

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

So, the conclusion of all of this?

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

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

[Chief - really?]

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

This highlights the fact that, while article 8 is still engaged at the second, possession order, stage, it would be difficult for the tenant successfully to invoke it, given that its requirements had been satisfied at the first, demotion order, stage.

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

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

Application to Mr Pinnock’s case

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

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

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

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

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

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

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

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

Implications & the future

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

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

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

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

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

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

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

NL - Yes, para 3.

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

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

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

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

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

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

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

Sorry for the delay in getting this post up, the delay is partly due to work but, more importantly, we’ve been arguing between ourselves as to how best to deal with it. Frankly, we can’t agree on what the case actually means and what the possible effects are. So we’ve done this as a co-authored post, with individual writers making comments, as set out below. Dave takes credit for the background and introductory material.

Background

Regular readers will no doubt be aware of the background to the case.  It really goes back to Bruton v London and Quadrant Housing Trust [2001] 1 AC 406, in which the House of Lords held that occupiers of a short-life accommodation which had been licensed to L&Q were found to have a tenancy by estoppel, from which certain rights (e.g. to repair) emanated.  L&Q subsequently terminated their rights.  Lambeth sought possession against the occupiers, who included Messrs Kay, Constantine, Cole, Greenhalgh, Armstrong, Ballantine, Breschinsky, and Ms Barnett.  The occupiers put in a defence inter alia alleging breach of their rights under Article 8.  That defence was struck out in the County Court on the basis of Qazi v LB Harrow [2004] 1 AC 983, and subsequent appeals to the Court of Appeal and (a seven person) House of Lords were unsuccessful.  The House of Lords ([2006] UKHL 10), in particular, adumbrated the now well-known gateway (a) (incompatibility per se of the possession proceedings with Article 8 / s.3 “reading down”) and gateway (b) (public law defence, possibly incorporating proportionality but unclear, although subsequent Court of Appeal decisions have made clear that it does not).   Those were set out most notably by Lord Hope at [110].  As regards gateway (a), in most cases (although cf Doherty where they would have made a declaration of incompatibility but for the intervention of Parliament), such a challenge would go nowhere because one could assume that the relevant balances had been made by Parliament and, if they had not been made expressly, one could imply them from inaction.

The role of the occupier’s personal circumstances for the purposes of a gateway (b) defence appears to have been what divided the majority and minority.  For the majority, it appears that personal circumstances were not particularly relevant; Lord Bingham in the minority, however, argued (at [39], (3)(b)) that courts should have regard to the occupier’s personal circumstances as part and parcel of the gateway (b) defence.

Subsequently, in Doherty, the House of Lords accepted that some modification to the standard Wednesbury principles was needed in order to shore up gateway (b) (see Lord Hope at [55]).  Proportionality seems to have been suggested by Lords Hope and Scott at least as part of the test, but the rest were mostly unclear on the point although Lord Mance and Lord Walker did suggest that any differences had been narrowed.  And it is notable, as regards the occupier’s personal circumstances, that the length of occupation was a relevant factor (by reference to Connors v UK App. No. 66746/01 as interpreted by Lord Brown in Kay at [210]).

The ECHR frame

Again as regular readers of this blog will know, the UK and ECtHR have been on a collision course, so much so that we have previously drawn on Tarantinoesque analogy to summarise the differences – viz, will the UK adopt a Royale approach to mandatory possession proceedings (i.e. ECtHR) or retain its quarter pounder approach (i.e. the UK approach).  In summary, in a succession of judgments, the ECtHR has found that mandatory possession proceedings in which the occupier has no opportunity to challenge the proportionality and reasonableness of the decision to evict them, breach the procedural requirements inherent in Article 8.  That is to say, they are not “necessary in a democratic society” (Article 8.2).  This approach was best summarised in Cosic v Croatia (at [22]):

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

In McCann v UK, which preceded Cosic, the ECtHR not surprisingly found that the rule in Hammersmith and Fulham LBC v Monk similarly breached Article 8 because of the lack of procedural safeguards (see especially paras [53]-[54]). The reception of McCann by the UK House of Lords was, ahem, not pleasant, the latter essentially saying that the ECtHR had misunderstood the possession process (a view which, for myself, I take with a pinch of salt – did Lord Scott really understand the day-to-day travails of the District Judge hearing such cases in a couple of minutes?)

Kay v UK: the general principles

It can, then, be of little surprise that the ECtHR found the UK in breach of those same requirements in Kay. It first set out the general principles (at [65]-[68], and, in particular [67] and [68]).

67.  Further, it is clear from the case-law of the Court that the requirement under Article 8 § 2 that the interference be “necessary in a democratic society” raises a question of procedure as well as one of substance (Connors, cited above, § 83; McCann, cited above, § 49). The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley v. the United Kingdom, 25 September 1996, § 76, Reports of Judgments and Decisions 1996-IV; Chapman v. the United Kingdom [GC], no. 27138/95, § 92, ECHR 2001-I; and Connors, cited above, §§ 83 and 92)

68.  As the Court emphasised in McCann (cited above, § 50), the loss of one’s home is the most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right to occupation has come to an end

Now pausing here for a moment – we have our first NL writers dispute.

J – I have a couple of thoughts here. One of the (many!) things that the ECtHR needs to clarify is what sort of hearing they have in mind. I think they probably mean that the court should decide – for itself – whether an eviction is proportionate. However, at [67], when they say “the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8″, can they be read as saying that the Court should adopt a review of the fairness of the procedure, i.e. is this a Wednesbury review where they’re concerned with the process or is it a merits review? Secondly, I’m not sure what to make of [68]. In the previous cases (well, certainly Cosic, Paulic, McCann) this has been the central holding. Is it significant that it’s now moved merely to a general principle? Thirdly, what do they actually mean by “in principle” in [68]? Do they mean “in every case as a matter of principle” or do they mean “as a general rule, subject to possible exceptions”?

NL – On process -v- merits, I’m not sure I see the distinction. Assessing the fairness of the process inevitably requires an assessment of the merits of the decision. On “in principle” in [68], I tend to the view that what is meant is akin to ‘as a matter of principle’. Given the the same phrase – “in principle” – is used in the same context in Cosic (at [22], as quoted above), I don’t see that its use in Kay marks any departure of the Court from previous, erm, principle.

Kay v UK: The violation

The House of Lords judgment in Kay had already been considered by the ECtHR in McCann and that discussion was referred to by them again in Kay (at [70]); they accepted that Lord Bingham’s approach in his dissenting judgment in Kay as not having serious consequences for the functioning of the system. Based on the discussion in McCann, there was no reason to depart from that decision and it followed that the minority in Kay were right, the majority wrong and, therefore, there must have been a violation of Art. 8.

At [74]):

In conclusion, the Kay applicants’ challenge to the decision to strike out their Article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the instant case.

Nothing controversial here.

Kay v UK: the present and future

However, although the ECtHR made clear that it had to decide Kay on the basis of the law as pertained at the time of the decision and without consideration of what had happened subsequently, including the House of Lords’ modifications of Kay in Doherty. The Court went on, however, to consider Doherty and the developments to gateway (b).

You might think that this would be helpful, after all, the violation in Kay was obvious and inevitable, following McCann. The real question is whether the modifications to Kay in Doherty do the trick, so as to make current UK mandatory possession proceedings Article 8 compliant.  On this, we may be left in the dark.  On one view, there are hints in the judgment that the Doherty modification is sufficient; but, on the other, the ECtHR may be saying we have not come far enough.  The key (albeit eliptical) paras are [73] and [74]:

73.  The Court welcomes the increasing tendency of the domestic courts to develop and expand conventional judicial review grounds in the light of Article 8. A number of their Lordships in Doherty alluded to the possibility for challenges on conventional judicial review grounds in cases such as the applicants’ to encompass more than just traditional Wednesbury grounds (see Lord Hope at paragraph 55; Lord Scott at paragraphs 70 and 84 to 85; and Lord Mance at paragraphs 133 to 135 of the House of Lords judgment). However, notwithstanding these developments, the Court considers that at the time that the applicants’ cases were considered by the domestic courts, there was an important distinction between the majority and minority approaches in the House of Lords, as demonstrated by the opinions in Kay itself. In McCann, the Court agreed with the minority approach although it noted that, in the great majority of cases, an order for possession could continue to be made in summary proceedings and that it would be only in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue (see McCann, cited above, § 54). To the extent that, in light of Doherty, the gateway (b) test set out by Lord Hope in Kay should now be applied in a more flexible manner, allowing for personal circumstances to be relevant to the county court’s assessment of the reasonableness of a decision to seek a possession order, the Court emphasises that this development occurred after the disposal of the applicants’ proceedings.

74.  In conclusion, the Kay applicants’ challenge to the decision to strike out their Article 8 defences failed because it was not possible at that time to challenge the decision of a local authority to seek a possession order on the basis of the alleged disproportionality of that decision in light of personal circumstances. Accordingly, for the reasons given in McCann, the Court concludes that the decision by the County Court to strike out the applicant’s Article 8 defences meant that the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed. As a result, the applicants were dispossessed of their homes without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that there has been a violation of Article 8 of the Convention in the instant case. (emphasis added)

J – what do they mean by “at the time”? Are they saying that Doherty has solved the problem? If so, why? Doherty is not, as the Court of Appeal has made clear in the Famous Five (Frisby et al), a proportionality review. So how can Doherty solve the incompatibility? Has the ECtHR actually understood Doherty? If English law still has some distance to go, why did they not say that? If Doherty had made no difference, surely the ECtHR would have said that? What on earth does it all mean? I agree with Dave (below) that the ECtHR was taken aback by the ferocity of the attack on McCann in Doherty (Lord Scott in particular) and have rather bottled it as a result.

Dave – My view is this: what seems to be happening is that we are reaching a stage where the collision course previously set is moving towards a pragmatic solution in which the Royale is merging with the quarterpounder without either necessarily being required to accept the other. Most likely, the ECtHR were stung by the criticism of McCann by the House of Lords in Doherty.  If the Supreme Court gives a little more ground, and is clearer on proportionality, then we will be compliant.  So, as Lord Hope said in Doherty (at [53] and, in my view, not enough attention has been paid to this), there is an important interaction between gateway (a) and (b) so that a slight expansion of gateway (b) will effectively cure any procedural defect.  Now, that’s great to a point – and the point must surely be that there will be an added onus to find registered providers (or whatever you want to call them) subject to HRA principles when proceeding to eviction.  In other words, Weaver must be right (and I would go further than Weaver, thinking about the more diffuse roles of RPs).  But, what about mandatory possession proceedings when functions of a public nature are not being exercised, eg by private landlords (whether or not providing Part 7 accommodation)?

The further question is this: if one accepts the relevance of personal circumstances and proportionality, when are personal circumstances enough to succeed on a gateway (b) challenge?  The significance of the facts in Kay (and, I have to admit, I did not realise this) is that broadly some were promised alternative accommodation, but not offered it; Kay was offered alternative accommodation but only for himself and not his partner and their baby; and others refused accommodation giving reasons which were not considered.  Procedural impropriety anyone?  But, significantly, when it came to assessing damages, the ECtHR made clear that there had been a procedural violation only, and, more significantly: “It is far from clear from the applicants’ submissions that, had a domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted” (at [78]).

NL – I rather agree with Dave that the ECtHR’s intention was to endorse a direction of travel, rather than a simple approval of Doherty/gateway b. In the context of the submissions of the applicants and the EHRC on the current confusion over the nature and extent of a gateway b review, the ECtHR’s lack of comment is pointed. The difference between Kay v Lambeth and now is that there is some form of review, and the difference between Connors and McCann and now is that the form of review has been expressed to extend beyond traditional judicial review grounds. The judgment clearly supports that extension but is silent on its sufficiency in the context that was put to it, being one of uncertainty and movement. Gateway b in Doherty was not the issue in the case on which it had to decide - Kay. Anything further would potentially be taken as interfering in the domestic courts.

That said, [73] and [74] do have the potential to be read as supporting the view that Doherty is sufficient to satisfy the proportionality assessment. But I think only if read in isolation.

Costs

Finally, for those waiting to have applications heard by the ECtHR, subject to admissibility (Darrell Dixon and Stephen Howe), don’t expect to get a significant award of your costs bearing in mind how much work goes into such an application (see [84]).

NL – the costs award is frankly very poor, at below County Court inter-partes guideline rates (for inner and outer London, at least). My sympathies to Thomas & Co.

Full post coming later.

[Edit: link to judgment fixed, 22/09/10.]

Of interest to housing lawyers are the JCHR findings and the Government response on McCann and Kay v UK, Connors and implementation of s.318 Housing and Regeneration Act 2008, and Schedule 15 Housing and Regeneration Act 2008 in relation to the incompatibility in Morris v Westminster CC [2005] EWCA Civ 1184.

Summary Possession (McCann etc.)
The JCHR says

…[W]ithout action by the Government, domestic courts remain bound by the decisions of the House of Lords in McCann and Doherty, that express consideration of the proportionality of any interference with the right to respect for home in Article 8 ECHR is not required. We think it is predictable that this position will not find favour with the European Court of Human Rights. We consider that the Minister should be required to explain why the costs of resisting further litigation in the case of Kay v United Kingdom on this repeat issue are justified…

We are concerned that the issue of respect for people’s homes in summary possession cases remains unresolved, despite numerous decisions of the House of Lords and the European Court of Human Rights. We welcome the Government’s acknowledgment that should the European Court of Human Rights decide again, in the pending case of Kay v United Kingdom, that domestic law is incompatible with Article 8 ECHR, it will have to revisit the question of whether a remedial order or legislation is necessary to remove the breach identified by the Court. Unless the European Court of Human Rights departs entirely from its reasoning in the case of McCann, we consider that the Government will inevitably need to revisit the breach identified in that case. We question whether it would not have been more cost effective to reform the summary possession process rather than to pursue further domestic and European litigation. It would be prudent for the Government in the meantime to consider how the process might be reformed to give effect to the decision in McCann in the event that the decision in Kay goes against it, in order to avoid any further delay following the forthcoming decision in Kay v UK.

This seems entirely plausible. And the Government’s response? This is not a straightforward matter. There have been three House of Lords cases so far and the Supreme Court has heard Pinnock. It isn’t at all clear how much McCann turned on its own facts and how far proportionality is a ‘necessity’ criterion for Art 8.2. Plus Kay does not turn on personal circumstances where McCann does. So the Government will await the Courts’ decisions in Kay v UK and Pinnock and see.

Equal treatment of those on caravan sites
The JCHR says:

In view of this apparent yet further delay in remedying the incompatibility in this case, we have written to the Minister to ask whether the Government intends to introduce the statutory instrument necessary to bring section 318 into force before the end of this Parliament; if not why not; and to ask for full explanation of why a statutory instrument which would bring into force a piece of legislation which prevents future breaches of the Convention is not regarded as a priority claim on parliamentary time by the Government.

The Govt.’s response?

A decision on section 318 will be made shortly, in the context of a wider strategy being developed in relation to Gypsies and Travellers, and an announcement will be made in due course.

So, we are going to do something, but we’re not going to tell you what yet.

And finally, on the Morris incompatibility issue
THis is the issue of ineligible children or pregnant spouses for homeless priority – the JCHR was not wholly satisfied that the implementation of Schedule 15 Housing and Regeneration Act 2008, in force from 1 March 2009, was sufficient. Lest we forget, this provides that housing assistance by the way of a private sector tenancy will be sufficient for those who are only eligible by way of a previously ineligible child or pregnant spouse. The JCHR view on Schedule 15 is:

We have previously reported our view that although this measure may remove the direct cause of the incompatibility identified in these cases, the solution in Schedule 15 of the 2008 Act gives rise to a similar risk of incompatibility. Schedule 15 continues to make a distinction between those entitled to the full range of housing assistance in relation to priority need, and a lesser set of obligations which will be open to those whose priority need is based upon their relationship with a dependant who is subject to certain immigration controls. We note that a similar kind of distinction, albeit based on facts which arose prior to the enactment of Schedule 15, is currently being challenged at the European Court of Human Rights.

The Government disagrees, on the basis that Schedule 15 is wholly sufficient to address the incompatibility established in Morris. So nothing else will be done about it.

Overall then, and respectively: wait and see; we’ll do something but we’re not saying what; and not a problem.

I suspect that several strands of ongoing higher court litigation are mapped out right there. We will, of course, follow them up.

Such readers will no doubt also recall that the reason Mr Doherty in Doherty v Birmingham CC (July 2008) was refused a declaration of incompatibility (gateway A) by the House of Lords was solely because the objectionable legislation was to be replaced through the Housing and Regeneration bill, as it then was. And lo, the Housing And Regeneration Act 2008 was passed, and there was a great waiting for a statutory instrument to bring local authority sites under the provisions of the Mobile Homes Act 1983 as s.318 Housing and Regeneration Act 2008 allowed.

We have now been informed that a simple statutory instrument apparently can’t be found parliamentary time before the election, which is to be in May or June 2010 at the latest. And so, and here I quote a DCLG person, “The work that has been done [on implementing s.318 HRA 2008] will be put aside pending decisions by ministers following the election, whenever that takes place”.

So, the UK remains in breach, as found in Connors v UK, and it looks like their Lordships in Doherty were perhaps a little too trusting in the timescale for implementation of the HRA. Meanwhile, travellers in local authority sites remain without any procedural safeguards on possession actions. One can be fairly sure that implementing s.318 will not be too high on the agenda of our new, or indeed our second (fourth?) hand, overlords after the election. Echoes of Morris?

Also of note, Lord Neuberger observes:

that the decision of the Court of Human Rights in Cosic v Croatia appears to be inconsistent with the most recent House of Lords authority, Doherty v Birmingham City Council [2008] UKHL 57 and seems to have put the onus back on the English courts to ensure that Article 8 is properly taken into account in possession proceedings.  In this regard, he refers to the recent interesting article on the subject by HHJ (Nic) Madge – “Article 8 – la lutta continua”

Lord Neuberger would seem to be suggesting that the Art 8 and proportionality issue will be heard in the Supreme Court, despite the recent refusal of permission in Central Bedfordshire. While someof us may think this is inevitable sooner or later, this acknowledgment of the issue is very interesting indeed.

Mind you, on reading, and with all due respect to both HHJ Madge and Lord Neuberger, and naturally all due modesty, it may be that our most recent post on the Quarter pounder or Royale question by Dave is a tad more up to date. I’ve also just seen that there is also an overview, although lacking detail, in the 1 December 2009 Solicitors Journal here (currently available without subscription, I think).

Ms Stokes had lived at her mother’s plot on the site and had been on the waiting list. She moved onto a plot which contained a site office on part of it, but was not used as a caravan site, in about January 2007. In April 2007 Brent wrote to say that her trespass would not be tolerated. However, in October 2007, Brent wrote to say that she was trespassing, but in view of the birth of her fourth child, her occupation would be tolerated for 3 months. In April 2008, Brent wrote that her occupation was no longer tolerated and possession would be required in 3 weeks. A couple of weeks later in May 2008 possession proceedings were issued. Ms Stokes filed a public law defence, and an Article 8 defence. The court below found there was no defence with a seriously arguable prospect of success and made a summary possession order.

Ms Stokes appealed, arguing that:
The Judge had failed to take into account personal circumstances:

• That she had lived on the site almost all her life;
• She had nowhere else to station the caravan lawfully and were homeless for the purposes of Housing Act 1996;
• Brent had not offered suitable alternative accommodation;
• An offer of another pitch was unsuitable due to dispute between two groups of residents (although Brent had not been informed of this reason for refusal prior to beginning proceedings);
• Ms Stokes’ children had disabilities which had not been addressed by Brent;
• The occupation had not caused a nuisance to others;
• The decision to seek possession was solely on Brent’s desire to expand the office space, rather than accommodate others, but no good reason had been made for expanding the office space.

Also, Brent had failed to

• Take all reasonable steps to search for an alternative site;
• Search for other temporary sites;
• Have regard to the guidance in Circular 18/94.

The judge below had failed to give adequate reasons for dismissing the defence.

In addition, Ms Stokes argued Article 8.

The appeal was made before the House of Lords judgment in Doherty was handed down and was amended as a result. After hearing but before judgment, Doran v Liverpool was handed down by the Court of Appeal. So the judgment was in some ways a moving target.

Mr Justice King held:

1. The decision that must be considered is the decision of the authority to seek possession on the basis of the facts available to it at that time, not that have subsequently emerged.

2. This is a public law issue. Doherty makes no difference to Kay or Qazi on the availability of a human rights defence (unless ‘gateway A’ incompatibility).

3.The issue is whether a public law defence is ‘seriously arguable’, not just arguable.

4. Even taking the expanded sense of what can be raised in a public law defence, via Doherty (and Doran), this was not a (Kay) exceptional case. Unlike Connors or Kay, Ms Stokes had not lawfully lived on the pitch for a number of years. Eviction was sought after another pitch had been offered but refused, with no reason given at the time. It would be bad law to decide that the eviction would only be erited if it ws to accommodate another family.

5. The duty to offer suitable alternative accommodation was aHousing Act 1996 Part VII issue and not relevant to the present proceedings. Submissions on this issue sounded in part like a premature challenge to a homeless decision. R(McCarthy) v Basildon DC [2008] EWHC 987 (Admin) distinguished on the basis of factual differences. There was nothing to suggest that Brent was not fully aware when it wrote the letter ending the ‘tolerated’ occupation that a homeless application might be made. The letter advised on making such an application. [In any event, R(McCarthy) was overturned on appeal.]

6. While the judgment below was cursory in parts, the judge had correctly addressed himself as to the ‘seriously arguable’ point and clearly had in mind all the pleaded circumstances in finding that there was no evidence to suggest a prima facie case that the Authority had failed in its duties. Additionally, the appellant had failed to establish that the court below was wrong on the seriously arguable point.

7. The argument that the Authority had failed to fulfill its statutory duty by taking into account relevant considerations fell in the same way. There had to be some evidence that the Authority had not complied with the duties, or relevant considerations ignored. Otherwise, it was simply an attempt to reverse the burden of proof onto the Claimant. A seriously arguable case cannot be made out simply by assertion of potentially material failures.

8. The appellant’s related point on procedural unfairness by failing to give directions on disclosure – where disclosure would have been ordered in a judicial review – did not stand. This was not, unlike the subject of a judicial review, a decision for which the decision maker was obliged to give reasons. The Judicial Review Protocol is not supposed to be method of pre-action fact finding or obligatory disclosure. There is no requirement to give reasons in a possession claim, and, even in a judicial review, it would be for the applicant to demonstrate the improper exercise of powers by the authority. There may be exceptional cases where the failure to give reasons may give rise to the inference of the improper use of powers, e.g. where the circumstances are such that the decision appears to be one that no reasonable person would consider justifiable. This was not such a case.

Appeal dismissed.

Comment

As well as the view on Doherty, which is broadly in line with the limiting decisions in Doran, Central Bedfordshire v Taylor and McGlynn v Hatfield, and also follows the suggestion that period of occupation is the key ‘personal circumstance’, there is an important issue here on evidence of failure to take into account relevant considerations. At such an early stage in possession proceedings, this can, of course, be very hard to evidence. Often, all there is a lack of any indication that the matters have been considered. What this judgment suggests is that this may well not be enough. But the Court asking for positive evidence of the failure, while restricting or denying any access to disclosure orders, puts the Defendant in a very difficult position indeed. (That is unless she or he has been lucky enough to receive a letter from the authority stating ‘we have wilfully and without good reason failed to consider X’, which is, on the whole, rare).

Since then, the Court of Appeal has decided on Doran v Liverpool CC [2009] EWCA Civ 146 (our report) and McGlynn v Welwyn Hatfield BC [2009] EWCA Civ 285 (our report), further shaping the landscape.

The facts in the case were not dissimilar to Kay. In 1993, Bedfordshire CC (as was) had leased land and dwellings to Luton for 3 years with a sublease to a housing association for assured shorthold tenancies. Lengthy negotiations over a new lease fell through and in 2007 Bedfrdshire commenced possession proceedings. Some occupants of the properties defended on the basis interference with Article 8 rights such that it was a breach of Art 6 to bring possession proceedings. The dismissal of this defence was what was appealed.

The issue before the Court of Appeal was given as how should County Court judges approach situations similar to Kay, post Doherty. Has the position changed such as to afford a possible defence to such a situation. Is it arguable that circumstances were such as to impose on the Council a duty to consider the personal circumstances of the appellants? And is the test something like Wednesbury rationality or something wider?

In the main judgment, Waller LJ considers Doran and McGlynn, in particular in view of their holding that a public law consideration wider than the Wednesbury rationality test was appropriate and, in McGlynn, an arguable defence based on the Council’s failure to carry out reasonable further investigations. But these cases concerned termination of a lease or licence (McGlynn), or statutory duties (Doran, Doherty). In this case, as in Kay, the occupants are trespassers and the Council has an undoubted right to possession.

The question is therefore has the decision in Doherty impacted on Kay. Waller LJ adopts Toulson LJ’s analysis of the decisions in Doherty set out at paras 15-22 and 48-52 of Doran, to the effect that the public law defence is not to be confined to traditional Wednesbury grounds – ‘there is no formulaic or formalistic restriction of the factors which may be relied on’ and personal circumstances are not necessarily irrelevant. However, this does not address the situation where the facts are so close to Kay.

The Council submitted that Doherty did not suggest that the decision in Kay, on the facts, would have been any different. In regard to trespassers, an authority with immediate right to decision had no obligation to consider the personal circumstances of the occupants. Even on the view of the minority in Kay, it was unarguable that a council acting reasonably would have done otherwise than seek possession.

The Secretary of State, intervening, suggested that the matter should be remitted to the County Court so that the appellants’ arguments could be fully considered and the appropriate facts found. However, it would be wrong to remit if it would serve no purpose or, if there was to be a remittance, without guidance.

For Waller LJ, Lord Hope’s ‘further explanation’ in Doherty of his statement of gateway b in Kay is noted, but his endorsement of the Qazi principle that ‘a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances should be struck out’ at para 42 of Doherty is to be taken as saying that Kay would still be decided the same way. Lord Hope’s qualification of that principle must be seen in the context of the facts and law of Doherty.

While the re-interpretation of para 110 does have general application in its loosening of the restrictions on the factors able to be considered in review, Doran itself concerned similar facts to Doherty. Where Waller LJ differs from the view of Toulson LJ in Doran is on Toulson’ holding that the facts at issue were those at the point of the original decision and indeed that the decision to seek possession is the relevant decision to challenge. Waller LJ instead holds that a council may make a series of decisions as facts become known to it, up to the point of the hearing itself. If any of those decisions was shown to be ‘unreasonable’ it could be attacked.

But in the present case, this makes little difference. Where the facts are similar to Kay, a court, post-Doherty, will actually be in much the same position as it was even before the convention became law [para 42].

Waller LJ accepts that whether the decision of a local authority is ‘reasonable’ post-Doherty goes beyond the question of what is rational. A local authority should take account of the personal circumstances of an occupier known to it. But it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to Kay, where, as here, the occupants are not initially known to the authority or have any relation with it. The law allows for a period of time to bring the possession order into effect and this is sufficient.

Even where the local authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession [para 45] as the authority has an absolute right to possession. Personal circumstances are only relevant to postponing execution. There was therefore no reason to remit the case to the County Court. Appeal dismissed.

Lloyd LJ concurs. The proper decision for review in this case was the decision to pres for trial of the possession claim, once the circumstances of the occupiers had become known to authority. Accepting for the moment the appellants’ account of the facts and their circumstances, it would still make no difference. Following Lord Bingham at para 47 of Kay (and Lord Bingham was in the minority) where the pleaded facts give no special claim to remain, there is no duty to accommodate and the authority has an unqualified right to possession, possession orders would necessarily be made. There was no need to remit in this case and appeal dismissed.

Richards LJ concurred.

So there we are, for the moment at least. Post-Doherty defences do not apply to a Kay situation, where the local authority (or public body, including RSLs, post Weaver) does not have any relation to the occupiers, the occupiers are trespassers and the authority has an unqualified right to possession. Unlike termination of a lease or licence, or where a statutory duty is involved, the defence cannot succeed, with the possible exception, pace Lord Bingham, of where the facts give rise to a special claim to remain.

Now, what would this mean for ‘failed successor’ cases? McCann involved termination of a tenancy and a case like that would clearly potentially have a public law defence in Doherty form, but a failed successor? Or ‘successor’ to a tolerated trespasser (prior to 20 May 2009)? We’ll have to see, but the argument is surely that Kay would apply, absent some particularly egregious behaviour by the authority.

My guess is that this will be headed to the Supreme Court, but for the moment, public law defences would seem limited to those who have or had some contractural or statutory relation to the authority in their accommodation.

Mr McGlynn was granted a non-secure tenancy by Welwyn in 2000, in pursuance of homelessness obligations under Part VII HA 1996. The tenancy was therefore terminable by Notice to Quit and Welwyn served NTQ in 2004 and possession proceedings in April 2005. Summary possession followed in December 2005, set aside on appeal to CJ in August 2006 on the basis that it was seriously arguable that the LA had exercised its powers improperly. At renewed hearing before a DJ, the Defendant argued that the Council had improperly exercised its powers in seeking the possession order (not in serving the NTQ, which was not challenged). The DJ found there was not a seriously arguable defence and made the possession order. The appeal was then to the Court of Appeal.

The appeal was thus primarily on the issue of whether Mr McGlynn had a seriously arguable defence on public law grounds.

Some brief factual context. There had been allegations of nuisance against the Defendant, from a sole source. This was the basis of the NTQ. Shortly after the NTQ, the Council wrote to Mr McGlynn’s drug caseworker, who had objected to the allegations, as follows:

We have received a number of complaints regarding visitors to Mr McGlynn’s property and also about his own behaviour. The complainant is aware that their evidence will be needed in court and they are willing to assist the council and have agreed to give evidence in court if needed. Should the council be required to apply for a Possession Hearing Mr McGlynn will have the opportunity to offer a defence, either personally or via a Solicitor, to the Court.

The Local Authority does not take action against a person’s tenancy unless they are satisfied that there has been a significant breach that has caused a nuisance or annoyance to other residents in the locality. The Local Authority also liaises closely with the Police in relation to complaints received and they have confirmed that they have received a number of calls regarding the anti-social behaviour caused by either Mr McGlynn and/or visitors to his property.

Mr McGlynn has a non-secure tenancy that can be brought to an end by serving a Notice to Quit. As a Notice to Quit was served on 28 April 2004, Mr McGlynn no longer holds a current tenancy with Welwyn Hatfield Council. However, we would need to apply to the Court for vacant possession of the property.

If we do not receive any further complaints of anti-social behaviour that can be linked to Mr McGlynn or his property we will consider granting him a further non-secure tenancy with an option to him being re-housed in a smaller property as requested. However, if the complaints continue, we will have no option but to continue with the legal action required to repossess 20 Kingscroft…

If you require any further information, please do not hesitate to contact me on the above number. I am, of course, willing to discuss any matter directly with Mr McGlynn.

The Council’s initial claim was expressly on the grounds of the original alleged nuisance and further complaints (also from the same sole source). Mr McGlynn had initially defended on the basis that the allegations weren’t true. After an adjourned hearing, the Council proceeded solely on the basis that an NTQ had been served and on this ground the initial possession order given. The appeal to the CJ, which was heard shortly after Kay v Lambeth in the Lords, was allowed on the basis that, given the Council’s letter, quoted above, it was seriously arguable that the Council had acted in a way no reasonable person would consider justifiable. The directions for re-hearing included one for the Council to serve further evidence to show why the Council was satisfied that the nuisance continued and to show how they had given the appellant an opportunity to make representations prior to the issue of the claim. No evidence on these points was forthcoming. Despite this the DJ made a PO at the rehearing of the claim, and refused to consider that Mr McGlynn had an arguable defence.

So to the Court of Appeal.

Jan Luba QC for Mr McGlynn requested that the grounds be amended to include a challenge to the lawfulness of the NTQ. This was refused as the point had not been raised at all below, where the lawfulness of the NTQ was admitted. He further requested an amendment to include argument that the procedure adopted by the Council failed to provide the necessary procedural safeguards of Mr McGlynn’s Art 8 rights – the McCann/Cosic line – albeit that this could only be argued if or when the case reached the Lords.

Aside from these requests, Mr McGlynn’s main argument was that this was a ‘gateway b’ challenge, not confined to wednesbury unreasonableness. The legislative schema was comparable to that in Kay and in Doherty, but distinct from that in Doran, as there was no possibility of suspending execution of the possession order, as in the latter.

The DJ in the rehearing had erred in law by failing to consider the Council’s letter (above) as a whole, which amounted to a statement of policy not to take possession action unless satisfied of breach of tenancy causing nuisance to others and stating that Mr McGlynn would have the opportunity to challenge such a conclusion. The Council may have answers to these points, but it had failed to produce them, despite the CJ’s direction. The appellant therefore did have a seriously arguable public law defence and the DJ was wrong to conclude otherwise.

The Council argued that a reasonable council was not required to conduct an investigation into the truth of allegations of nuisance before deciding that it was appropriate to bring proceedings. This would extend to non-secure tenants a security of tenure Parliament had chosen to exclude. The DJ was right was right in his decision. The Council had ample ground to believe that there were further breaches and the Defendant’s initial defence gave no grounds for seriously believing otherwise.

The Court of Appeal, in a sole judgment, held:

This was an unusual case. The Council’s letter contained a statement of policy that the Council did not take possession action unless satisfied of significant breach. Given the time between NTQ and issue of claim (about a year), it was arguable that a reasonable council would not have issued proceedings without being satisfied that there had been some further significant breach.

To be so satisfied did not require a quasi judicial investigation to be conducted, but the question before the Court was whether it was seriously arguable that the Council did not do enough to satisfy itself of significant further breach.

The further evidence presented by the Council after the appeal to the CJ, somewhat surprisingly, did not provide the information to support its assertion that it had done enough. There was no evidence of the minutes of any panel considering the decision to issue proceedings. there was no evidence of consideration of the further complaints – did they all come from a single person and had they ceased when that person was rehoused, as asserted by the Defendant? There was no evidence as to whether it was assumed by the Council that the possession proceedings would give Mr McGlynn the chance to answer the allegations (as they had issued on grounds of nuisance, not of summary possession based on NTQ).

On the basis of the paucity of evidence provided by the Council about the decisonmaking process, the DJ had clearly taken too narrow a view and was wrong to decide that the public law defence was not seriously arguable.

Appeal allowed. On that basis, there was no need for either of the amendments sought by Jan Luba QC.

Now this is indeed useful. Granted the Council’s letter is the ‘unusual’ element in this case – particularly as it is taken as setting out a policy that the Council failed to provide evidence that it had followed, but this also involves a bog-standard non-secure tenancy, NTQ and summary possession procedure.

The Council’s ‘statement of policy’ and an apparent failure to follow it (or arguable failure) is taken by the Court of Appeal as an unproblematic gateway b matter, with a clearly arguable public law defence. The Court is untroubled by the Council’s argument that it is not required to conduct a quasi judicial inquiry, ‘consideration’ such that a reasonable council would be satisfied of a further breach is not taken to be the same level of inquiry and not an additional level of securoty of tenure above that given in statute. Useful material there.