The judgment in London Borough of Hounslow v Powell [2011] UKSC 8 (Aka, Powell, Hall and Frisby) is out. We have a detailed post coming shortly on this significant judgment on proportionality defences after Pinnock, but for now, the headlines are:
Introductory tenancies – These are caught under the proportionality defence. S.127(2) Housing Act 1996 to be read accordingly.
Section 89 Housing Act 1980 – A court can’t make a possession order that defers possession for longer than the maximum period permitted under s.89, even if it considers it would be proportionate to do so. The Supreme Court declines to make a declaration of incompatibility in respect of S.89. There is no evidence that the period of six weeks maximum is insufficient to meet the needs of cases of exceptional hardship.
Temporary accommodation under Part VII Housing Act 1996 – there is nothing in Part VII which prevents a court from refusing to make a possession order if it considered it was not proportionate to do so. Possession proceedings against occupiers of temporary accommodation provided under Part VII can also face a proportionality defence.
There is no requirement for a local authority (public function landlord) to set out its legitimate aims in making a claim for possession, the presumption is legitimate purpose in managing housing stock. (The bare private law right to ownership is not sufficient by itself). The landlord may set out other reasons if it wishes.
In general, the Court views the prospects of a successful proportionality defence as being in ‘exceptional’ cases.
On the actual cases, Ms Powell had been offered alternative accommodation – appeal allowed on the basis there was no good reason to maintain the possession order. Mr Hall had presented no grounds for a seriously arguable case that the possession order in his case would be disproportionate and his appeal would have been dismissed, but Leeds had already offered him a secure tenancy so there was no reason to maintain the possession order and his appeal was allowed. Likewise, Mr Frisby had advanced no grounds for arguing that the possession order in his case was disproportionate – appeal dismissed. Pyrrhic victories on the whole then.
There is a lot more in the detail, and much to discuss – coming soon.
“A court can’t make a possession order that defers possession for the maximum period permitted under s.89, even if it considers it would be proportionate to do so”.
Don’t you mean “a court can’t make a possession order that defers possession for LONGER than the maximum period permitted under s.89”.
I’ll defer comment until your longer post, but on a first reading it struck me that the law (in practice) has not actually changed all that much from where we were before Qazi.
That is exactly what I meant – a missing longer now added.
It enforces Pinnock and proportionality. There now needs a ruling on the absurd proposition that fm co-op tenancies are void due to uncertainty of term. Quadrant Brownswood v White is back 2nd week in April