Brave New World or Same Old Story

Pinnock v Manchester City Council [2010] UKSC 45 (Supreme Court pdf & BAILII links)

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.

About chief

chief is a barrister in the big city. he specialises in public law, landlord & tenant, football and rock 'n' roll (the last two are only when his clerks aren't watching). he sometimes pops by here, but not as often as he'd like. he will occasionally eschew capital letters. the reasons for this odd affectation are lost in the mists of time.
Posted in ASB, Housing law - All, Introductory and Demoted tenancies, Possession and tagged , , , , , , .

30 Comments

  1. Can anyone shed any light on Neuberger’s reading of Zehentner? Neither party were public authorities were they not? Why has he lumped it in with Connors, Blecic, Cosic, Paulic, McCann & Kay?

    • In all seriousness, I don’t know. Neuberger seems to be saying that Zehentner is not a private parties case due to the effect of the “judicial sale”. I don’t buy this distinction, and I don’t understand how the other eight were persuaded to go along with it. I can understand the attractiveness of ducking the private sector issue, but this, with respect, has to be wrong – doesn’t it?

      Private sectors are going to have to be addressed at some time. Strasbourg is clearly saying that this applies to the private sector (in principle). If the SC finds that too scary to contemplate then surely that is more grist to the Grand Chamber mill.

      Just to be clear – I do not object in principle to proportionality applying in the private sector. In fact, I’m a big fan of proportionality, insofar as it is possible to be a ‘fan’ of a standard of review. But these are policy issues, and I remain unconvinced that Strasbourg has either fully thought them through or understands the issues and consequences.

  2. For information . This argument was run and rejected by the Supreme Court that Zehentner was a private sector case.

    The analogy was drawn by Lord Collins in argument with an application for an order for sale of a property subject to a charging order.

    A debt was turned into a proprietary interest by the court. Enforcement of that interest by sale was ordered by the court . Hence it the interference , at both stages involved a public authority .

    • JS – Thanks. I heard that Lord Collins thought that it was a case about the compatibility of the law that allowed for enforcement and Lord Neuberger thought that it was different because there was no contractual right to possession, it only came out of the charging order/”judicial sale”. It seems to me to be an unconvincing distinction and and a somewhat strained interpretation of what the ECtHR actually said. Surely this now must apply in the private rented sector too.

    • Chief- I don’t think that the ECtHR actually analysed what the position was vis a vis whether it was a domestic public authority .

      It makes sense to me as a distinction between such a case – until the court created a proprietary right in favour of the person seeking a judicial sale there is no Art 8 question at all re their rights as a creditor – and say Belchikova – which does , for all of para 50 in Pinnock, open the door to the argument that dared not speak its name – i.e that ” any person ” in Para 50 of McCann- really does mean any person not simply a person with whose rights a public sector landlord is intending to intervene.

      There is plainly scope for a much more focused Art 8 approach to TLATA and Insolvency Act possessions against beneficiaries following Pinnock .

    • What about mandatory grounds for possession in relation to assured tenancies (and so ASTs as well) created by statute (I’m looking at you Ground 8)? The only reason a private landlord has such a right to possession is because of the 1988 Act.

      It would have been helpful if they had bothered to explain the argument in relation to Zehentner. I’m going to have fun trying to explain that!

    • JS – Ok, I agree that it’s not an untenable distinction, but I also agree with S that if that is the line that the SC are taking then they should have explained their reasoning, giving Strasbourg an opportunity to explain themselves and either say “you’re right, that is what we meant in Zehentner“, or “nope, it’s right across the board”. After all, this is an area where there has been substantial back and forth between the HoL/SC and the ECtHR. The problem with pinning all hopes on extending into the private arena on Belchikova is that it is too easy to brush that aside on the basis that the Court really didn’t address its mind to the question, as there was another way to resolve it.

    • There’s an interesting case called Mustafa v Sweden [2008] (23883/06) in which the ECtHR made some useful comments on this point. See para 33 in particular.

  3. There are a whole host of claims by local authorities that have not so far been mentioned where the court, upon finding the relevant facts, has no discretion save that under s.88 HA 1980. Presumably these will also be affected by the Pinnock decision and may not be addressed in the Supreme Court in the other pending cases concerning homelessness and intro tenancies and where arguments about whether the property can be said to be a “home” may not be viable. These fall into broadly 2 categories:
    (1)Claims for possession following the tenant’s death where the occupier does not have succession rights;and
    (2)Claims for possession where a formerly secure tenant has lost security of tenure and the tenancy has been terminated by NTQ.
    This second category includes non-occupation as a principal home (though the premises may still be a home) and loss of security by past parting with possession of the whole and/or sub-letting of the whole (where the former tenant has moved back into the premises it may at the time of proceedings have become his home once more).
    Defendants in these types of cases are already cottoning onto to the “Gateway b” argument and one assumes that there will now be another tranche of arguments as they seek to resist possession orders.
    Any thoughts? In particular does anyone know of any pending cases where this issue arises above County Court level?

    • LTC

      Certainly this would apply to any summary possession proceedings – NTQ based – by a local authority or probably an RSL. Absolutely this would include failed successions, potentially non-succession occupants, and arguably non-occupation cases. Also Monk based termination by one joint tenant and NTQ on the remaining tenant (I’m amending a Defence on this latter to include a proportionality defence right now).

      The rule of thumb is surely that this clearly potentially applies to ANY summary or mandatory possession claims by a public body where the court would not otherwise have the opportunity to consider the proportionality of the decision. There will, of course, be a lot of arguments about this to come, but what the SC has done is set out a general principle. Whether the facts in each specific case would support such a defence is another matter entirely.

      It completely largely supplants gateway b (although not gateway a).

    • That was the case that questioned whether McCann etc applies to the private sector- I understand that this case has been adjourned.

  4. On a sideshow issue ,some of us have been arguing for years against the rule in McPhail (can’t suspend an order against trespassers) ,not least my esteemed brother Pete – see Boyland v Rand. The SC have just buried McPhail without even blinking!! Gosh it was that simple all along!

    • J. True.

      I was rather taking that as read, hence the qualification of ‘arguably’ on non-occupation cases and whether the facts would support it.

  5. I do not think it is right to say it supplants gateway(b) entirely – as an eviction could be challenged on public law grounds even if a trial on proportionality might find the eviction to be proportionate e.g a failure to apply a policy on evictions . It undoubtedly renders gateway(b) very secondary.

    • JS – good point and I stand corrected, although wouldn’t that example also fail to meet the Article 8.2 “in accordance with the law and is necessary in a democratic society” test and be defendable on that basis?

    • Doesn’t it in fact destroy the rationale for talking of two separate gateways? The outcome wrt demoted tenancies was arrived at by first examining whether the legislation on its plain reading was Convention-compatible (the methodology of a gateway (a) challenge), and then, when it was found wanting, the legislation was read to allow proportionality to be considered in light of the defendant’s individual circumstances (a gateway (b)-type result). The distinction between gateway (a) and (b) was important because proportionality could be raised in one and not the other. That has now fallen away.

      A gateway (a) challenge will now only succeed if the defendant can persuade the court that eviction would be a violation of the Convention and the public authority can show that the legislation cannot be read compatibly. But surely any legislation could have ‘lawfully’ read into it a la Pinnock? The impact of Pinnock is (I think) that legislation will only be Convention-incompatible if it would result in a violation of the defendant’s substantive Convention rights every time it is used. Which might be true of legislation which violates article 14 (i.e. the Mobile Homes Act), but I find it hard to see how such a challenge could be brought on the basis of article 8 alone.

      Essentially, a challenge to the legislation itself is now a get-out position for a public body found to be proposing a violation of the Convention, rather than an alternative route for a defendant.

    • Alex,

      Not so sure. I don’t think it will be as easy to shoehorn all statute into compliance as was done with the DT regime (I think even that was a stretch.). What of S.21 and the accelerated procedure for example? PRPSH issues a s.21 to terminate a ‘starter’ tenancy AST. Either an Art 8 consideration by the court has to somehow be shoehorned in to the statutory process (very tricky) or…

      I was trying to think if the proportionality defence could be to the decision to use s.21 in the first place, but there I think would have to agree with JS that it looks much more like either a public law challenge (Weaver take 2) or a challenge to S.21 as compatible (at least for use by public bodies). That said, I need to have a proper think about this…

    • It depends on the scope of s.6(2)(b). If it is taken as widely as it was in Doherty, then a defendant won’t be able to rely on art 8 (other than to challenge the compatibility of the legislation). But I think Doherty was mistaken on this point, and I think Pinnock impliedly accepts this.

      If the DDA can provide a defence to a s.21 claim, then why not the HRA…?

    • The DDA defence was effectively a public law challenge, though.

      Agreed that Pinnock takes a very different view on s.6(2)(b), though. But still leaves the question of how a proportionality review could be shoehorned into statute as it was here for s.143D(2).

  6. Going back to Mc Phail point, Kay etal, Connors, Doherty , Qazi, Uncle Tom Cobbley were all trespassers by the time of the possession action
    plus what about ‘private and family life’? See Stanley Burnton J (as he then was) in R v Hillingdon ex p Ward, where the Traveller had only been on the land for a few days but he felt article 8 applied (prior to the Lords knocking that hope on the head in Qazi if I remember rightly…

    • CJ – yes, it would appear that ‘possession’ and ‘home’ are the qualifying markers. Having no right under domestic law to remain isn’t an obstacle – para 52. Private and family life (sans ‘home’) may be less easy to pin on Pinnock and indeed the ECtHR, but it surely opens a line of argument.

  7. Still chewing away in my obscure backwater on McPhail. I accept that McPhail remains relevant in a minority of cases (e.g. where squatters have not lived long in a building – BTW anyone hear Jim Paton of Advisory Service for Squatters doing rather a good job at teaching Grant Shapps the law re Criminal Law Act on Radio 4 yesterday?) but I do think it is dead in the water in most cases. I think that for the 20% of the Gypsy and Traveller population in caravans who are on the roadside, McPhail is finished due to: home is also the caravan and not just the piece of land you have stopped on (Price v Leeds must surely be wrong in this aspect); private and family life (Hillingdon ex p Ward); Gypsy way of life (Chapman v UK; Connors v UK). I accept that the SC have not finally concluded on this issue ( see para 63) but I don’t see how Lord Denning’s reasoning can make a comeback now. And, from our little moon in orbit around the Housing Law planet, us Gypsy and Traveller advisers salute the Pinnock judgment ( erm, why did we have to spend ten years arguing about it?. Additionally there must be quite a few cases lodged with ECtHR that must now be game,set and match?

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