Pinnock and Proportionality

The CA have just handed down judgment in Manchester CC v Pinnock[2009] EWCA Civ 852, concerning the evidence that can be taken into account to justify a breach of a demoted tenancy at a review panel, the proper role of the County Court in such a circumstance, and the standard to be applied on a judicial review of a review panel decision. It is significant then in the context of demoted tenancies and demonstrates also that the proportionality standard is subject-specific. Manchester won by the way, although, no doubt Richard Drabble QC will seek leave to appeal as it was conceded that the CA was bound by Gilboy as regards whether the demoted tenancy review process is article 6 compliant (at [23]).

Facts

Mr Pinnock had lived at 65 Meldon Road for 30 years, and lives there with his partner, Christine Walker, and their five children. The five children – Clive, Trevor, Devon, Orreon and Orraine – were involved in various offences and between 1998-2007, the Recorder, who made the demoted tenancy order, which began on 08 June 2007, “listed no less than 32 matters between 1998 and January 2007 involving the family, including sentences for criminal offences, the imposition and breach of ASBOs, an Anti-Social Behaviour injunction granted against Christine Walker and breach of that injunction” ([9]). New terms were included in the demoted tenancy agreement concerning nuisance, annoyance, disturbance, harassment etc. Pretty much the day before the demoted tenancy would have become secure again, Manchester served notice of proceedings for possession and extended the demotion until the Pinnocks gave up possession. The notice referred to two breaches of the amended demoted tenancy: Clive had resisted and/or obstructed a PC; Devon had pleaded guilty to causing death by dangerous driving and driving whilst disqualified and uninsured in the locality of the property. None of the facts at any time suggested that Mr Pinnock had been involved in any such activity.

Mr Pinnock sought an oral review of that decision, at which the review panel took account of more recent serious offences committed by the sons, including conviction of Clive and Devon for burglary; Christine Walker had blamed the police for Devon’s car crash. Mr Pinnock’s defence was that the children no longer lived at the property, to which the council found that “it remains the family home where your sons return on a frequent basis”. As regards Christine Walker’s blaming of the police, “The panel felt that this clearly demonstrated that both you and your partner have failed to address your responsibilities as parents. Furthermore you both appear to refuse to accept the seriousness of your sons’ behaviour …”. The children continued to pose a serious risk to the community.

At the County Court hearing under s 143N, Housing Act 1996, the judge appears to have proceeded on a gateway (b) path a la Kay/Doherty, and found that none of the matters referred to in the possession notice would have been sufficient on their own; the review panel had not ducked the issue of whether Clive and Devon were still living in the property; that the council was entitled to rely on matters after the possession notice which Mr Pinnock knew about and had an opportunity to deal with at the panel.

Submissions

Before the CA, Richard Drabble raised a number of arguments aimed both at the statutory process for review as well as the way it was handled in this case. He argued that the basis for the panel and County Court review was proportionality and that had not been considered (eg alternative remedies). Although the panel/County Court were entitled to have regard to events after the possession notice, that was only if one of the matters in the possession notice was upheld, but none was; the County Court judge had substituted his own decision for that of the review panel.

Andrew Arden for Manchester argued, amongst other things, that the qualified rights under Article 8 had been taken into account by the legislation; the County Court judge did not have jurisdiction to review the panel’s decision on jr grounds (that could only be done in the Administrative Court); it wasn’t necessary for the council to establish that there had been breaches of the tenancy agreement.

Judgment

Stanley Burton LJ, with whom Lloyd and Mummery LJJ agreed, proceeded first on an “apart from authority” basis ([26]-[32]). On that basis, he said that it was the whole process from the outset that needed to be considered in the context of Article 8 rights. When the demotion order is originally made, “… the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him“; and that where there had been conduct serious enough to justify a demotion order (as here), at the second stage, “… very little is required to justify the landlord’s decision to obtain possession. it would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord’s decision at the second stage with the rigour required of the county court at the first stage”. As regards proportionality at the second stage, he said this

… is not a high test, and I see no real difference at the second stage between it and the domestic requirement, to which I refer below, that the landlord’s decision must not be one that no reasonable person would consider justifiable. If on review the landlord considers for good reason … that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision is one that no reasonable person would consider justifiable, the requirement of proportionality will be satisfied. (original emphasis)

There then follow pages and pages – a bit of a cut and paste job – from Kay, Doherty, Doran, and Central Beds – with two “simple propositions” at [46]-[47]: in a statutory context like this one, if the provisions are incompatible with Convention rights, the landlord’s decision and that of the County Court is nonetheless lawful (s 6(2)(b), HRA); on a jr, the standards applicable are those applicable in a non-Convention domestic review (Doherty/Doran/Central Beds). Anyone hoping for further pearls of wisdom will be disappointed, I fear.

As regards the role of the County Court, he said that s 143D restricts that Court to considering whether the procedure had been followed. If it has been, the order must follow. He was fortified in this conclusion by three further points: (a) the county court has no power to make a quashing order, so that, if it did find the decision to be legally effective, it might have no alternative but to dismiss the claim for possession (so that the tenancy would become a secure tenancy again under s 143B(4)(b)); the whole process was intended by Parliament to be quick and section 143F(6) was directory rather than mandatory; his conclusion was consistent with the materially identical wording for introductory tenancies. Nobody had suggested here that the correct procedure had not been followed.

Although strictly obiter, therefore, he gives his views on a number of points:
What approach should the administrative court take? the court “should be cautious in the extreme before quashing a decision of a public landlord” (at [58]).
What reasons can be given in a notice? he says that such reasons may extend beyond the tenancy agreement. He is extensive in his interpretation of what can be taken into account:

My provisional view is that the reasons for the landlord’s decision may be anything relevant to its management of its housing estate, provided, of course, that it arises or becomes known after the date of the demotion order and so could not have been taken into account when it was made. If there are relevant reasons that justify the decision (in the sense that it cannot be said that no reasonable person would make that decision for those reasons) the Court should not, in my judgment, normally quash the decision.

What can be taken into account on review? anything that postdates the possession notice, provided that can be fairly done. The question is whether, at the time of the review, the landlord has a good reason to seek possession.

As for this case, he accepted that the review panel had ducked the issue of Devon’s residence, but that did not make the incident irrelevant. Christine Walker’s blaming of the police bore on whether she and Mr Pinnock were able and willing to exercise parental control; Orreon’s conviction for burglary after the possession notice was served was relevant. Even if the judge had jurisdiction, the review decision was not irrational.

Posted in ASB, Housing law - All, Introductory and Demoted tenancies, secure-tenancy and tagged , , , .

11 Comments

  1. Isn’t para. 58 the one of significant wider importance. That looks, to me, like the CA saying that ‘reasonabless’ (in the context of making an order) is the place to consider and weight up all the public law defence points.

    I could be wrong.

    • I’m not sure I agree, J, although I suspect we’ll have a longer discussion about it at some stage. But, in the meantime, note the opening words “In the present context” and the next sentence, “by way of example”. I don’t think that they’re of wider importance as a result, although they clearly are in the context of the CA’s interpretation of the demoted tenancy scheme as a whole. I can’t do smiley faces, but suspect I’d do one now (esp after your helpful e-mail, for which thanks).

    • What about para. 27 though and the refernece to the “whole process”. Is that not going to be taken as meaning that we deal with all this in “reasonableness”? I suppose the more significant question is whether or not this case has any relevance at all to “normal” possession cases or whether it only bites on demoted/intro tenancy cases.

      Happy to help with the other matter

  2. Isn’t it saying this: in cases where in the time between the order being made and the decision to enforce the order no new relevant facts have come to the attention of the LA, which relate to its decision to seek possession, it will always be reasonable for the LA to enforce the order.

    It cant be saying you get one shot, and one shot only, at arguing public law points though can it? That would be at odds with Taylor. I know paragraph 40 of Taylor only discusses the steps up to and including the obtaining of a possession order, but surely the same logic applies to the decisions a LA has to make if it wishes to enforce the order?

    Surely it would be unreasonable, even irrational, for a LA to proceed with an eviction after an order if it came to light that the facts which caused the LA to seek the order had either changed or were not before the LA at the time it sought the order?

    • I agree with the points you are making, S, but one of the frustrating things about Pinnock is that it doesn’t resolve (or say anything about) the tension between Taylor and Doran on the issue you raise in the second para, both those cases having been quite robustly different on it. I suspect that one is going to run for a little longer anyway but the logic of Taylor is better in my eyes (but I would say that anyway).

  3. Clearly a cut and paste job.

    I find paragraph 65 disturbing. If the tenant had been blaming the police for the car crash then it might well be relevant to take his attitude into consideration. Stanley Burnton LJ is saying that the tenant is not only responsible for the behaviour of others who reside at the address but that he is also responsible and indeed blameworthy for what one household member thinks about the behaviour of another. Not perhaps of much relevance to the totality of the matter but worrying all the same.

    • Brass, that left me feeling distinctly queasy as well, particularly because it may have been factually correct (we’re not told)and, if that was so, Ms Walker was just being accurate. It’s like factually innocent prisoners being refused early release because they won’t admit guilt.

    • A real cut and paste job. All those extracts from Kay et al, just to get to paras 46 and 47, which are merely restatements of Doherty.

      Para. 52 is quite helpful though, if only for reminding us that public law challenges do not have to be framed as Doherty challenges.

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  5. I am pleased to able to tell you all that permission to appeal was granted in MCC-v- Pinnock on 9 Dec by Lord Brown, Rodger and Lady Hale

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