You gotta have an opinion

Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8

[This is probably a work in progress. There may be further additions and comments as people get a chance/have a brainwave. We’ve also ended up writing this as something of a tag team. Chief did most of it and starts us off.]

Sometime ago Dave opened the door to Tarantino references in relation to the vexed issue of Art.8 of the ECHR and possession proceedings. In his post on Zehentner v Austria he pointed out that, just as American hitmen consider that European fast food chains do certain things rather differently, so the appellate courts in England and Wales had viewed the approach of the European Court of Human Rights with bemusement. The latest decision of the Supreme Court on this subject is an unmissable opportunity to consider another famous moment from Pulp Fiction.*

Furthermore, you have written in in your droves [cough splutter – NL] praising our innovative and revolutionary roundtable writing approach to these cases (as seen with Kay v UK and again with Manchester v Pinnock) so we have rolled it out again. Buckle up, it’s going to be a bumpy ride.

Back in Doherty v Birmingham [2008] UKHL 57; [2009] 1 AC 367 Lord Hope said at [20] that:

“I am not convinced that the Strasbourg Court—which did not hear oral argument in McCann —has fully appreciated the very real problems that are likely to be caused if we were to depart from the majority view in Kay in favour of that of the minority. The proposition that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which the Strasbourg Court adopted in [54] of its judgment appears to set a high standard, one that will be hard to achieve. But it suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not. Unless parameters or guidelines are set down, the judgment in each case will be a subjective one. Every solicitor who is asked to advise an occupier will have to consider whether it is arguable that the decision to seek his eviction was not proportionate. If he decides to raise this argument the court will have to examine the issue. The whole point of the reasoning of the majority was to reduce the risks to the operation of the domestic system by laying down objective standards on which the courts can rely. I do not think that the decision in McCann has answered this problem. Until the Strasbourg Court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises.”

Although the ECtHR has in a number of cases repeated its insistence that anyone at risk of losing their home should be able to have the proportionality of that measure determined by an independent tribunal, and it may be that from the facts of those cases it is possible to start drawing together some pointers towards objective criterion, it does not appear (to me at least) that principles for general application have yet been established by the ECtHR.

While the Supreme Court accepted in Manchester v Pinnock [2010] UKSC 45; [2011] HLR 7 that the time had come to welcome proportionality into possession proceedings with open arms and a nice piece of pie, Lord Neuberger MR noted that:

“57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person’s home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.

“59. The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances … Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance. … In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.”

The reference to Salford v Mullen is a reference to the cases considered in the current judgment of the Supreme Court. Last week in anticipation of the Supreme Court’s decision we expressed the hope that these cases would allow us to look inside proportionality.

Therefore, by the time we come to the judgment in Hounslow v Powell, we have reached the point where the Supreme Court has (to borrow from Vincent in Pulp Fiction)** “gotta have an opinion“*** on general guidance and principles for general application.

No Security

While Pinnock concerned one, rather rare, situation where the occupier does not have security of tenure, these appeals concerned two far more common situations. The first is tenants under introductory tenancies (Housing Act 1996, Pt.5). In the course of our introduction to the Supreme Court’s decision in Pinnock, the introductory tenancy scheme was explained as a way of understanding the demoted tenancy regime. To spare you, dear reader, from having to click into another window and to spare my poor typing fingers, I will lazily copy-and-paste:

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

Clearly, the decision in Pinnock meant that things had moved on since Cochrane and McLellan.

The second situation, and again one that is statistically far more significant than demoted tenancies, is where local housing authorities grant tenancies pursuant to their duties to the homeless (Housing Act 1996, Pt.7), which are excluded  from security by Sch.1 of the Housing Act 1985.****

Facts

From our note on the Court of Appeal decision in these cases you will remember that there were originally five cases joined together. One of them fell by the wayside (Manchester v Mushin), while another has been granted PTA to the Supreme Court, but has been stayed pending the outcome of these cases (Salford v Mullen – the lead case in the Court of Appeal, somewhat bizarrely as Salford weren’t even represented there).

The three cases that were before the Supreme Court were therefore Hounslow v Powell (a homelessness case where rent arrears had accrued, but full HB was now in payment); Leeds v Hall (an introductory tenancy case where Mr Hall had been accused of noise nuisance, threatening and intimidating behaviour and being verbally abusive towards his neighbours); and Birmingham v Frisby (another IT case, this time where Mr Frisby had been accused of noise nuisance and abatement action had been taken under Environmental Protection Act 1990).

Issues

The leading judgment was given by Lord Hope. This might provide a clue to seasoned observers about whether a wide or a restrictive approach would be taken to Pinnock. Lord Hope identified four issues:

  1. What is the form and content of the proportionality review that Art.8 requires?
  2. What procedural protections are implicit in Art.8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced?
  3. Can the court defer the delivery of possession for a period in excess of the maximum permitted by s.89 of the 1980 Act if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility?
  4. Can s.127(2) of the 1996 Act be read compatibly with the introductory tenant’s Art.8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Manchester v Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right?

Preliminary – applicability of Art.8

The fact that Lord Hope identified these as the issues will have already told you the answer to what I would describe as the first, almost preliminary, issue – namely whether Pinnock meant that proportionality applied in these two classes of occupation. If Pinnock and proportionality did apply then the Supreme Court would need to grapple with the detail of how proportionality should operate, procedurally and substantively (issues 1-4 above).

In the wake of Pinnock it is almost unthinkable that the Supreme Court could say that the proportionality requirement did not apply (as opposed to that it could not in the county courts due to the statute, on which more below). And so it proved: “In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8” [33].

I (Chief) think that the Supreme Court must be broadly right on this point, if they were right in Pinnock (by which I mean, reading between the lines in Pinnock, right that “in principle” in the ECtHR’s formulation does not beget exceptions based on class of occupancy or the social policy that has led to differences in class and type, but only on the requirement for the occupier to raise a proportionality issue). It might be doubted whether this is right in relation to Pt.7 accommodation that is provided for a really short period of time – see O’Rourke v UK where the applicant had been placed in a hotel room for less than a fortnight before being turfed out and the ECtHR had “significant doubts over whether or not the applicant’s links with the hotel room were sufficient and continuous enough to make it his ‘home’ at the time of his eviction” – but in reality the “home” test under Art.8 is a relatively easy one to pass.

Substance of proportionality

Lord Hope reiterated at [34] that an Art.8 point only needs to be considered if it is raised by the occupier. If it is raised it should initially be considered summarily. If the court is satisfied that even if the facts relied upon were made out the point would still not succeed then the Art.8 defence can dismissed summarily (I pause here to query how many county court judges are really going to be ready to dismiss these defences summarily except in those cases where the defence only amounts to “I don’t want to”. Anything else is surely likely to get a further hearing from many/most DJs. It is at the stage of a possible final order further down the line that the vast majority of occupiers are going to be severely disappointed). Therefore, it followed that in the great majority of cases the local authority (presumably, as with Pinnock, this is being used fairly interchangeably with “public authority”) need not plead its precise reasons for possession, but may plead a more detailed case in reply to an Art.8 defence.

Jan Luba QC (Counsel for the 3 appellants, and a man who should be praised for his tenacious pursuit of this cause in the face of a number of knock-backs from the House of Lords******) is recorded at [35] as accepting that the threshold for raising an arguable proportionality case was a high one, and would only succeed in a small proportion of cases (cf. my query above).

After acknowledging the practical considerations for the judge in the county court (as Norris J noted in the recent case of Leeds & Yorkshire HA v Vertigan [2010] EWCA Civ 1583, the “pressures of a county court possession list are not to be underestimated”), the next part of Lord Hope’s [35] is probably likely to become as quoted by local authorities as Lord Bingham’s “pedantic exegesis” in R v Croydon ex p Graham or Lord Neuberger in Holmes-Moorhouse:

“Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.”

[NL taking up the baton after Chief’s epic work] The practical upshot of that view, we’ll come back to below. But the immediate consequence is clear in para 36 of Lord Hope’s judgment. The proportionality of making a possession order will be supported by the fact that making the order will (a) “serve to vindicate the authority’s ownership rights and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock”. While in Kryvitska and Kryvitskyy v Ukraine (application 30856/03, December 2010) the ECtHR indicated that the exercise of ownership rights by itself will not suffice where the owner is the state, the twin aims satisfy the legitimate aim requirement.

It follows that there is no need, at least in the overwhelming majority of cases, for the local authority to explain  and justify its reasons for seeking a possession order. It will be enough that the statutory pre-requisites have been satisfied and that “it is to be assumed” [my emphasis] that the authority is acting in accordance with its duties in allocation and management of housing stock.

The court therefore only needs to be concerned with the occupier’s personal circumstances, any factual objections raised by the Defendant [see below for more on factual issues] and in the light of those, what view the Court takes on whether an order would be lawful and proportionate.

This suggests that Lord Hope (and the Supreme Court) was not prepared to see a ‘structured approach’ to deciding proportionality of the kind found in Huang v Secretary of State for the Home Department [2007] UKHL 11. And so it proves. While Huang may be desirable in the context of immigration control, it is not appropriate in the context of a statutory regime, where parliament, for reasons of social policy had not provided the occupiers with secure tenancies. To require an Authority to plead to balance its interests against that of the occupier would be wholly inappropriate [41] and collapse the distinction between secure and non-secure tenancies, as well as giving rise to prolonged litigation. Rather than the Authority having to show its objective was sufficiently important to justify limiting a fundamental right, it should, in the ordinary case, be absolutely taken as read that the objectives (a) and (b) above are sufficient. It is against these aims that the Court should, ordinarily, measure the Defendant’s personal circumstances and factual objections.

Procedure

Turning to general procedural concerns, on which Mr Luba QC submitted that Article 8 would be satisfied by requiring that before possession proceedings are begun, the non-secure occupier knows why the proceedings are being initiated and has the opportunity to make representations to the decision maker. The Court was also asked to answer questions about the way claims for possession should be handled in the County Courts. This was best left to arise from how proceedings were actually dealt with in practice. Lord Hope declines to give a general view that reasons should be given. In the present cases reasons were given – either via the Introductory tenancy review, or in Ms Powell’s case, by warnings and an opportunity for interview on the rent arrears.[47-48]

I’ll pause here for a moment, as does Lord Hope, to deal with the specific issues before the Court on Introductory tenancies and temporary accommodation provided under Part VII Housing Act 1996. The respondent authorities argued variously that the terms of HA 1996 s.127(2) did not admit of having a proportionality review read into it in the same way as the demoted tenancy provision in Pinnock [55], and that Part VII contained no express provision that permitted a court to refuse to grant a possession order [38]. I don’t propose to spend long on this, though as the Court’s responses are not a surprise to anyone who has considered Pinnock.

On s.127(2), there is “a sufficient similarity between s.127(2) and s.143D(2) [demoted tenancies] to apply the reasoning in Pinnock to introductory tenancies also.” While the word “procedure” is not used in s.127(2), it does refer to the procedural requirements in s.128. Lawfulness must be an inherent requirement of the procedure in seeking a possession order and it must be open to the Court to consider whether the procedure has been lawfully followed. No declaration of incompatibility required.

Procedurally, where a proportionality defence is raised to a possession claim against an introductory tenancy, the Court must have in mind that the tenant has a statutory right to request a review of the decision to seek possession under s.129 HA 1996. Parliament withheld the right to a secure tenancy until the end of the trial period and, in the ordinary case, the authority’s presumed legitimate aims (as above) will encapsulate the relevant facts.[45]

On Part VII:

there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII. There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate. [39]

I’d note at this point that, as most defences to possession of Part VII accommodation will be for rent arrears or behavioural issues rather than discharge of duty, and a fresh application will only be appropriate on discharge of duty (or negative finding), it is unlikely that the availability of review etc. under s.202 and s.204 will be appropriate in such cases, or they will not be a timely response. But the availability of some other form of challenge or remedy under Part VII should be borne in mind.

Housing Act 1980 – interpretation/declaration?

Then there is the issue of s.89 [Dave taking over the ring in tag blog].  This is dealt with by Lord Hope at [57]-64], and considered also by Lord Phillips at [102]-[103].  It will be remembered that one of the points made in Pinnock (at [63]) was that the acceptance of the proportionality defence may require certain statutory and procedural provisions to be revisited.  One such provision was s. 89.  This provision gives the court discretion, in cases of “exceptional hardship” to postpone a possession but “… shall not in any event be postponed to a date longer than six weeks after the making of the order”.  The SC in Pinnock seemed to be offering a third way between possession and refusal – ie a postponement for a longer period than six weeks – which seemed an elegant compromise.  Although not precisely on point in Frisby, the SC nevertheless consider it authoritatively after full argument (although strictly, I suppose, obiter).  The problem, though, which faced the SC in Frisby was that s.89 could not be read down so as to make it compatible – no interpretive trick is available to get round the words “shall not in any event” – as Lord Hope put it, those words “could hardly be more explicit” (at [61]).  Further, the scheme of the 1980 Act was designed to confer protection on secure tenants (which were created by the Act) and not on other tenancies.  Reading down, then, was out of the question ([62]).  There is the ordinary case management powers open to courts (eg defer a possession order pending an appeal, adjourn to enable proceedings to be brought in the admin court [presumably now a rare occurrence]; if more info was needed to enable the court to decide what order it should make): “But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum” ([63]).

If that’s the situation, might s. 89 be incompatible with Article 8 (a straightforward gateway (a) claim in the old money).  Lord Hope considers the incompatibility issue at [64] and gives it short shrift:

No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blečić v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility.

So, what this means, as Lord Phillips explains, is that it limits the type of orders which a court can make (cf Pinnock at [62]).  Lord Phillips, however, is savvy enough to recognise one effect of this finding of compatibility, and it is significant:

The clear limit on the judge’s discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged.

Disposing of the appeals

Ms Powell: Hounslow had decided to offer Ms Powell suitable alternative accommodation after Pinnock on a non-secure basis with her agreement to pay the rent arrears following her.  Jan Luba, however, sought to go further and argued that the order should be set aside because the proportionality of Hounslow’s actions had not been considered at the original hearing.  They agreed that the possession order should be set aside because of the offer of alternative accommodation.  Had there been a live issue, they would have remitted it to the county court.

Mr Hall: Leeds had offered Mr Hall a secure tenancy post-Pinnock but the same issue was raised by Jan Luba about setting aside the possession order.  However, here no grounds had been presented for the suggestion that Mr Hall had a “seriously arguable” case on proportionality – “Had it not been for the offer of a secure tenancy, I would have dismissed his appeal”.  However, in light of the secure tenancy, no good reason would be served by the possession order so the appeal was successful for that reason only.

Mr Frisby: The unluckiest of them all – Birmingham had made no offer to settle and he was unsuccessful on the facts.  There was no reason for thinking that the had a seriously arguable proportionality defence: he hadn’t sought a review of the council’s decision to extend his IT; and did not attend the resumed review hearing of the decision to seek an order for possession: “The facts on which that decision was based are compelling, and no notice has been given of any grounds on which it might be suggested that the making of the order was disproportionate” (at [70]).

I Concur

There is then a second, generally concurring, judgment from Lord Phillips. Some of it has been dealt with above and some of it is dealt with under ‘Some preliminary thoughts’, below.

A couple of points do bear drawing out at this juncture though.

Firstly, Lord Phillips’ flirtation with not accepting the applicability of an independent proportionality determination for introductory tenancies at [78]-[79] has an air of just toying with the respondents. You can tell his heart isn’t really in it.

Secondly, Lord Phillips at [93] states that an authority may properly rely on a breach of a tenancy condition in an introductory tenancy even where it does not have any impact on any third party. This much is probably in accordance with the policy behind the Act, but one would expect that, if the seriously arguable threshold is crossed, different breaches may weigh differently in the proportionality exercise (probably rightly, I might add). However, I’m not certain that Lord Phillips actually goes this far. What he does do is to approve [97] of Waller LJ in McLellan, viz.:

“Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter- allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.”

As Lord Phillips puts it “if a tenancy has given rise to complaints by neighbours of anti-social behaviour the authority does not have to be in a position to prove that these are well founded in order to justify terminating the tenancy” [93].

Lord Phillips deals with two interesting points in relation to homelessness cases (HA 1996, Pt.7). The first, which is not particularly surprising, is that:

“where the local authority simply wishes to relocate the defendant in alternative accommodation in the interests of the more efficient allocation of limited and fluctuating housing stock, it is not easy to envisage any issue of fact that the defendant could raise that would constitute a substantial ground for making a proportionality challenge.” [111]

The second relevant point in relation to homelessness cases is that “where the reason is non-payment of rent there is not likely to be much scope for bona fide issues of fact” ([112]) – but again, presumably, individual circumstances may count for more than where the homeless applicant has behaved in an anti-social manner.

For the purposes of this brief summary of Lord Phillips’ judgment the next relevant point can be found at [116]-[117], where his Lordship suggests that the homeless applicant must be informed why the local housing authority is seeking possession against them, but that this will not add anything to the obligations of authorities as it is “inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so” – and for efficient local authorities this much is true, but it may be that some LAs will want to reconsider their systems and processes, and quite rightly as it is inconceivable to me that fundamental fairness requires anything less.

His Lordship goes on at [117] to stop short of saying that reasons must be given before service of NTQ – a relief perhaps to those few authorities who still have some cases working their way through the system where NTQ was given at the start of the tenancy, as if it were a s.21 notice.

Then finally at [120] the ghost of the “tolerated trespasser” clanks its chains and wails mournfully. You just knew that we wouldn’t be free of it that easily. Lord Phillips’ view is that that there is no reason in principle why “if the validity of the notice to quit is challenged by way of defence to the claim for possession, the judge should not be entitled to deal with that challenge.” [120]. That, I think, must be right and welcomed, but what of the position where the NTQ is valid, and indeed a proportionate response, but subsequent events/personal circumstances call the proportionality into question? One hopes that there will be no barrier to setting aside the NTQ. Certainly this is the inference that I choose to believe that Lord Phillips is making.

Some preliminary thoughts in response

Chief: I don’t think that there was ever much doubt, after Pinnock, that an Art.8 proportionality requirement would be in play in these types of cases. Whilst it is open that the more appropriate result would have been a declaration of incompatibility in Pinnock, once that possibility had been dismissed it seems obvious that the same logic should apply here. To my mind the list of missed declarations of incompatibilities keeps on growing, s.89 being a further case in point.

Once again, the Holy Grail (as it were) of the applicability of art.8 to private sector tenancies has not been grappled with – nor should it have been in this case. But what is probably clear is that if a successful proportionality defence is going to be as difficult to raise as their Lordships think in relation to a public sector tenancy (an issue on which time may well prove them wrong) then it will presumably be even tougher in the private sector where the landlord’s A1P1 property rights will count for a great deal – not to mention that in some cases the landlord may have their own Art.8 rights (consider Gillow v UK (1986) 11 EHRR 335 where the ECtHR appeared to presume that the applicant’s Jersey property was still their “home” even during an extended period where it was let out to other people).

Dave: Forgive the rant but I’m not sure I agree with Chief about the number of cases which are going to cross the “seriously arguable” threshold on a full blown proportionality review.  Lord Phillips even seems to raise the bar when he talks throughout his judgment of the need for a “substantial” ground for a proportionality challenge.  How can a defence advocate plead such a defence without full disclosure from the landlord?  Further, the narrowness of the vision of proportionality (or, rather, blinkered approach to its possibilities) are emphasised throughout, to the detriment of the wide-ranging approach which seemed to have been adopted in Pinnock.  There must be questions as to how this decision sits with Pinnock, which seemed to be suggesting the adoption of a structured approach to proportionality which is dismissed here.  Remember, of course, that 24 paragraphs of the judgment in Pinnock were given over to the application of proportionality to the facts of the case; here, we get just a couple.  The significance of para [35] which Chief highlighted above means that the “social landlord” trumps the usual so that a sort of exceptional exceptionalism applies; personally, I think there’s more purchase in gateway (b) than a proportionality defence (and I never thought it would end up like that).  Conversely, though, if that (ie the logic of para [35]) is the case with social landlords, the same is unlikely to be true of private landlords who have no common public good/interest beyond the pursuit (sometimes) of profit.  So, Chief, I’m not sure that I agree that it will be/should be tougher against private landlords.  How odd to disagree with you, Chief (must be the first time!).

Chief: By way of a brief response, I’m not sure that the difference between us in terms of the end result for an occupier is that great. I still think that the DJ faced with a busy list, still dealing with the 10:30 cases at 12:55, and a duty solicitor (assuming that they will still exist) who is arguing with the LA representative about extracts from both this case and Pinnock, is not going to need too much pressing to grab hold of the opportunity to adjourn and make it someone else’s problem. The ultimate decision is still going to be a possession order most of the time. At least, I suspect that will be the position for a couple of years yet, until we get some loosening of restrictions from the appellate courts. I’m in full agreement over gateway (b) – it is going to be more important to far more occupiers than proportionality than I suspect a lot of people expected.

Following on from that, I must confess that I do wonder whether there will be many, if any, cases where the end result is any more favourable to the occupier than they would have secured post-Doherty and pre-Pinnock. I am left with a nagging doubt whether this is really what the ECtHR envisaged.

NL: I’m coming at this from a slightly different angle – as one who would have to size up the prospects of such a defence quickly on incoming cases. My view is that, while this judgment undoubtedly represents a limiting of the possibilities of Pinnock, it still leaves us in a different place to Doherty, and certainly doesn’t put us back pre-Qazi.

First the difficulties, as noted above. The high initial threshold presents a real and perhaps unbalanced burden on Defendants. A summary consideration, pre disclosure, will be hard where it is the landlord’s failure to consider facts, or follow processes, that is alleged. There were similar problems with Gateway B cases, and it is disappointing that this wasn’t at least reviewed by the Court as a possible issue for practical address in practice directions (HHJ Madge might be busy on those, judging by the reference to him in the Judgment). I fall between Dave and Chief on what will happen in practice. I suspect a lot of cases where the defence is raised will be adjourned out of the possession list, but set down for a short hearing soon afterwards – and at that point, a lot will be dismissed summarily.

The Section 89 point also makes the defence effectively an all or nothing matter. Either no possession order is made or, at best, you get a six week stay that you might have got on exceptional hardship grounds anyway. Perversely, given that the County Court has the acknowledged power to adjourn etc. prior to final hearing, this gives an incentive to the tenant to delay and seek adjournments simply to buy more time where it does not appear that the defence might be strong enough to defeat a possession order altogether. The suggestion in Pinnock that the Court may stay possession for whatever period as was appropriate to satisfy the proportionality of granting the order was both interesting and practical – it is the kind of order that County Court judges would adjust easily to making. It would also have avoided encouraging (at least to the same extent) delay as a legitimate (in the client’s interests) tactic. But here, we are told, 6 weeks will always be enough to satisfy proportionality if an order is to be made.

The presumption of the (public) landlord’s legitimate aims (and with it the abandonment of the structured balancing of interests) places another hefty burden on the the Defendant. But what isn’t addressed here at all is whether this is a) a rebuttable presumption and b) what happens if it is rebutted. For example, and this is one I’ve been thinking about lately, a situation where the public landlord actively procures notice to quit by one departed joint tenant – a la McCann v UK – while having no basis to proceed against the remaining tenant under HA 1985 (or 1988). Can the rule in Hammersmith & Fulham v Monk stand in these circumstances? My view is no – the bare private law right to ownership by itself is not enough to be a legitimate aim. And for anyone saying surely public landlords don’t do such things, they do indeed. Or, for another example, what of a failed successor who will be owed a full housing duty under Part VII if evicted (the facts of Austin v Southwark spring to mind)? If there is no under-occupation, where is the legitimate housing management aim?

On the side of the Defendant, though, I think what we now have is a set of defences that, while they are difficult to sustain and face summary disposal, present a fuller chance of defending mandatory or summary possession claims than previously. Where there is a failure to follow policy, Wednesbury unreasonableness, and other public law grounds, we still have a clear gateway B argument. Where there are personal circumstances, vulnerability etc., we have a proportionality defence and, of course, a combination of the two (as a failure to follow policy also goes to proportionality, for example). Have we forgotten the struggles over what personal circumstances meant in gateway B and whether they could be considered? No longer an issue.

Lastly, and something we raised in response to Pinnock, what of the private sector? Not -rightly- addressed at all in this judgment, but the means by which proportionality is read into statute here and in Pinnock (lawfulness of process and procedure) does not, I think, affect the statutory obligation on the Judge to make a possession order. It seems to me that the ‘shall make an order’ is not actually modified, only the ‘if satisfied that the relevant procedure has been followed’ element. That modification only applies to public body landlords (including RSLs). So there is no precedent at all for the duty of the court as a public body which would be required to deal with, for instance, the proportionality of a s.21 accelerated possession. That would be an entirely different argument.

As mentioned above, this note has been a group effort, so some of the discussion between ourselves is contained in this post. However, we all hope that the debate will continue long into the day/night in the comments below the line (or alternatively long into the next decade in the Court of Appeal).

——
[Chief’s footnotes.]

* Or possibly not, depending on your views of the rather strained nature of the theme.

** If you look at the original script this line was probably ad libbed and therefore may have been the creative work of Travolta rather than Tarantino. The mind boggles.

*** NSFW or small children.

**** Including ITs, DTs, and homeless cases Sch.1 excludes a total of 15 categories from security of tenure. It is presumed that proportionality will apply in most of these, although there will be issues about “home” in relation to a number of them and para.11 deals with business tenancies under Landlord and Tenant Act 1954.*****

***** The issue of business premises is the subject of some rather confusing Art.8 jurisprudence from the ECtHR, which is perhaps a topic for another day.

****** We’re told that he rather self-deprecatingly informed the Court of Appeal in these cases that he was in all the cases where the occupier loses.*******

******* Isn’t there some sort of WordPress footnotes plug-in? [Not one that actually works. NL]

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 Housing law - All, Introductory and Demoted tenancies, Licences and occupiers, Possession and tagged , , , , , .

24 Comments

  1. I don’t post often – but thanks for the hugely well-informed and thoughtful discussion and digest. I reckon that the main long term impact of this decision, as you rightly acknowledge, seems to be to signpost the flexibility and potency of Gateway (b) arguments, against the fogginess of and (usually) limited final remedy involved in defences of proportionality. But Courts are still likely to see a defendant’s request for the disclosure of the documents that are usually needed to substantiate a Gateway (b) defence, as some sort of ill-equipped fishing expedition, and unfairly putting the procedural cart before the horse. Duty Advisers will need to be properly armed to deal with judges who may not yet have much idea about Doherty, let alone Pinnock.

  2. Bravo for the analysis .

    The decision is somewhat disappointing but without Lords Neuberger and Mance – who I suspect were prime movers in Pinnock not all that surprising .

    As to the question of summary consideration Lord Bingham’s remarks in KAY set out the approach and should be taken to every possession list namely that these points can be disposed of summarily on consideration of a defence or affidavit consistent with giving the defendant sufficient time to prepare these – hence chucking a case out in the possession list save where it requires no factual investigation and is utterly hopeless without giving that opportunity would plainly be open to appeal.

    The real problem with this case is that judges and advisers were expecting guidance as to what test they should apply only to be told that at least one limb of the structured approach to proportionality (not only set out in Huang but approved in the CA in relation to assisting in the reasonableness exercise see Lambeth LBC v-Howard )is ” wholly inappropriate ” .

    The other fundamental limbs of proportionality as approved in de Freitas , Daly etc however must remain centrally relevant namely:

    The need to show a rational connection between the means adopted and the legitimate aim , the consideration of the question of less restrictive means and the need to balance the interests of not merely the tenant but third parties .

    Otherwise ,this is proportionality by name only and utterly devoid of content and such a test I think likely to be at risk from further rulings of the ECtHR .

    The other issue that the SC has glossed over in both this case and Pinnock is the point of time at which proportionality is to be considered. By analogy, with the CBC-v-Taylor line in respect of gateway(b) defences one would think that would be at the date of trial not the date at which possession is sought and indeed that must be the case both as to the question of rational connection and whether eviction violates your Art 8 rights not whether it would have done a few months ago ! This was ignored both in relation to Mr Pinnock whereby the time the SC made a possession order it was 3 years since the last incident and it appears also in Mr Hall’s case!

    One point that utterly baffles me is the disinterring of the corpse of McLellan para 97 suggesting the panel’s role is consideration of whether it is reasonable to make an order in the climate of allegation and counter-allegation. Firstly, it leads to the nonsense of the court being able to consider whether the facts justifying eviction of an introductory tenant are made out even though the review panel did not have to do that and secondly, conflicts with what the court expressly stated in Pinnock – see para 49,72-74 83 and 104.

    Thirdly,it seems to forget that the whole analysis of Section 6(2(b) at paras 93-103 in Pinnock was on the basis that it was the duty of the authority to consider the proportionality of the eviction for itself . To do so it must make its assessment on what it finds to be the facts ( justification for the eviction) – not what is reasonable in the climate of allegation and counter allegation.

    Hence , the approval by this panel of 7 of McLellan conflicts with the express finding of the Panel of 9 – so long as there is no attempt to suggest that this limits the court’s fact finding power this may be of academic interest only but I would suggest that any review panel that failed to find facts will only be storing up trouble for itself in the county court .

  3. On a first reading, I really do not see how much further we really are on from Winder. While I agree that we now have proportionality, it isn’t what everyone thought it would like and I don’t actually think it will come out all too often.

    The traditional structured approach to proportionality appears to have been knocked on the head by Frisby; we ain’t gonna get it in possession claims. If you couple this with what Strasbourg says in Kay I don’t share JS’ view that Strasbourg is going to have much of a problem with this. They were already clearly backing off in Kay where they pretty much said Doherty plus a consideration of personal circumstances was enough.

    In practice, what has really changed? Firstly, as before if a gateway b defence is established the claim for possession will fail.

    Secondly, as before, where you have personal circumstances that evidence exceptional hardship a 6 week postponement will be given.

    OK, I accept we have moved on slightly to the point where it will now be open to a court to dismiss a claim where there are particularly grave personal circumstances, in reality I think that is going to be rare (Bingham always said this in Kay).

    Personal circumstances without some element of procedural improprietary, irrationality or unfairness on behalf of the public authority is unlikely to warrant the dismissal of the claim. How can it when the SC has attached such importance to public authorities managing their own housing stock.

    If a public authority has acted by the book can you really see a court refusing to give it possession unless there are truly harrowing personal circumstances? I can’t. And, that, I think means we are pretty much back to where we started just that we arrive here via a different route.

    • S. I disagree, not only for the reasons I gave in the post. What is touched on in the judgment is only a fragment of how this might play out in practice. I raised the rule in Hammersmith v Monk in the post. Tricky (although not unarguable) via gateway B, as that can’t really deal with the private law right of ownership in such a case, but proportionate? – where there are no circumstances that would otherwise give rise to a possession claim, and the LL has procured the NTQ? The LA has acted ‘by the book’ in your terms, but private law right to the property by itself isn’t enough.

      The housing management justification is a presumption, and has to be rebutable. I think the same rebutable presumption argument could apply in failed succession cases, where the LA is likely to end up owing a Part VII duty anyway, through vulnerability.

      I am also with JS – and meant to add something to the post to this effect – that the rational connection and reasonableness of scale of measures limbs of proportionality limbs must still apply (given that they are not ruled out, unlike the balancing of needs test).

      There is still a lot here to think about and that will be worked out in practice. I think you are taking a rather limited view – it is the definition of ‘by the book’ that is open to (limited) re-evaluation.

      The s.89 issue is a difficult one in practice, as we noted, but I don’t think you are thinking ‘personal circumstances’ though – it is not just vulnerability

    • NL – I’m not saying that we haven’t moved anywhere. I just don’t think we have moved very far. I also think for the most part proportionality will not get us much further than gateway b has. Clearly, it is a gross over generalisation to say that this will always be the case, but I think for most part it will be and it will require special cases, with special facts to do so.

      On your NTQ point, I think we may have different definitions of “by the book” (it being a phrase which isn’t known for its precision). I’d actually argue the authority would be acting irrationally and therefore not by the book. How can it be rational to procure a NTQ when there are no grounds for possession?

      I think your example has more weight if there are grounds for possession. I accept that you couldn’t attack that under gateway b and yet you probably could with proportionality. That is clearly an example of where the law has moved on.

      Re failed successions, I still think public authorities will be able to justify evicting. They will argue that they need to join the cue for a secure tenancy like everyone else and it is for them to decide how to manage their housing stock. Only where you have special facts would you be able to get anywhere.

      We shall see though. Will certainly not be the end of the matter.

    • S. LA ‘talks to’ departed joint tenant, tells them they will still be liable for rent arrears etc., gives them form to sign. Departed Joint tenant thereby gives NTQ. The NTQ is from the JT as private indvidual. Where is the public law challenge?

      The failed succession example I had in mind was someone who would then be owed a full duty under Part VII. No ‘queue’ argument would make rational or practical sense.

      I agree that this is an incremental change. A whole new defence, but only different by some degrees (and more limited in some ways than those we already had). But why is this a surprise? It was evident from the ECtHR judgments in McCann and indeed Kay that it was not a huge change to gateway B that would be required to meet the ECtHR’s position.

      It will, as you say, most certainly not be the end of the matter. There is a lot of working out to come. No magic wand though, but there was never going to be.

  4. So in practice the tenant/defendant must specifically raise the Article 8 right of proportionality in the defence to the possession proceedings. A county court judge will then consider an Article 8 point summarily. If, as will often be the case, the court is satisfied that even if the facts relied on are made out the point would not succeed, it should be dismissed. Only if a court is satisfied that it could affect the order that it might make should the Article 8 point of proportionality be further entertained by the court.

    This is surely very close to county court judges exercising a public law function over public bodies -such jurisdiction being reserved to the high court. It is difficult to avoid the conclusion that the county court is developing some sort of quasi judicial review function without the sanction of Parliament.

  5. The collateral public law challenge has a long history both in the civil and criminal courts: back at least as far as Bristol v Clark (1975) et al through to Winder and Kay in housing cases and Boddington v BTP (1997) in crime – and probably much further than that. I’m not saying it doesn’t have its problems mind you. A defence in (say) an introductory tenancy cases these days can read like a set of JR grounds, and the practicalities of explaining that to the DDJ saddled with the duty list are potentially legion. Of course at the minute that lack of training and expertise seems to lead to adjournments being granted left right and centre, but the fact that that’s the case is not a sensible basis to approach the first hearing of a gateway (b) or proportionality defence.

  6. In light of Waller LJ’s opinion in Salford v Mullen [2010] (at 47) that gateway (b) can apply to any decision of the Local Authority relevant to seeking possession which could be the subject of Judicial Review, it is difficult to avoid the conclusion that the county court is exercising prerogative remedies which are beyond their remit (County Courts Act 1984, s.38(3)).

    • That point was argued by Manchester, Hounslow, and Leeds in the Court of Appeal. Didn’t get anywhere.

  7. Having now read (and re-read, and re-re-read) Powell and Pinnock, my overwhemling feeling is one of frustration. In many respects, whether or not there should always be a proportionality defence is a secondary argument for me as it seems much more a question of policy than of law. What frustrates (and depresses) me is the poverty of the reasoning and the analysis in both cases. This is a fundamental shift, not just in housing law, but, potentially, in wider public law. Did it not deserve some more considered – and scholarly – analysis? Other generations got (say) Street v Mountford; cases that you can read 10, 15, 20 or more years later and still be in awe of the learning of the judges. But this… just isn’t in the same league. Could just be me, but I can’t shake that we’ve been cheated.

    • I think that is harsh as far as Pinnock is concerned and the application of the general principle. The real poverty of reasoning is in the apparent resistance of the 7 to the consequences of what they decided as the 9.

      What does proportionality mean ? What tools can be used to assess whether an eviction is proportionate or not.

      As for the Section 38(3) argument – it was utterly hopeless from the start and any careful reading of the history set out in Winder, Boddington, Pyx Granite etc makes it clear why.

    • The issue of how to assess whether an eviction is proportionate or not appears to be the biggest problem here.

      It appears that a defence on proportionality would only be likely to succeed if there are no grounds to evict the tenant AND the tenant would be owed a full housing duty if they make a homelessness application.

      This could happen in cases when the occupier does not succeed or where one joint tenant has seved NTQ but possession will probably be deemed proportionate if the occupier is over-occupying.

  8. I’m not sure the s.38(3) argument is quite that hopeless. Winder was was distinguished and somewhat limited in Avon CC v Buscott. In that case a handful of people were occupying improvised shelters on council land. Avon sought possession. In response thy sought to adjourn the hearing so they could obtain evidence that they were Gypsies and the council were in breach of their obligation to find them a site to camp on. The judge refused the adjournment. On appeal the Court of Appeal held that the reasonableness of the council’s actions could be challenged where they did so in support of a private law right. In cases of accommodation provided under section 188 of the Housing Act 1996, relating as it does to a temporary expedient pending enquiries, where is the private law right?

    In Manchester CC v Cochrayne the Court of Appeal said that section 38(3) operated as a ban on any county court reviewing the exercise of failure to exercise a public duty unless there is Parliamentary authority to do so. The provision, or failure to provide, accommodation under Part VII of the HA 996 is a public duty. The fact that Parliament had to confer the power to consider public law defences on a s.204 appeal is a strong indicator that that is a field the county court has no authority to enter.

    NL, the point was not fully argued in the Court of Appeal because of concessions made in the county court (see in particular para 103). In any event there must be a difference between a s.193 duty (full housing duty) and a lesser duty, such as s.188 (interim accommodation pending enquiries).

    • Richard

      Neither Pinnock or Powell say any such thing . I cannot se how one can possibly come to such a conclusion .

      Stephen

      With respect, Winder has been re-established as meaning what the House of Lords intended it to mean . Kay etc made it clear that a public law defence could arise when no private law defence existed , by their very nature those public law defences did not give rise to a private law defence as Buscott had tried to limit Winder to .

      Pinnock killed once and for all such a suggestion and Buscott is impliedly overruled, Cochrane was expressly disapproved on this very point.

      The S 38(3) argument is completely misconceived as it confuses right with remedy – a judge finding that a possession claim is unlawfully brought dismisses it – S 38(3) simply prevents the amking of prerogative orders it does not prevent public law based defences.

    • The don’t expressly state it but that is the result.

      Powell says that Introductory tenancies were introduced for a reason and non-secure tenancies are also used for a reason. The reason being that councils have the opportunity to assess the suitability of the tenant before granting them a secure tenancy.

      If there are rent arrears, ASB issues or the tenants are underoccupying (or any other grounds) then the council can state that they are managing their own stock by evicting a tenant who is not suitable.

      However the argument for managing their own housing stock cannot be used when the tenant would be owed a full housing duty by the council when evicted as this seems unreasonable.

    • I should be grateful if you could cite the paragraphs that support that proposition .

      All the SC does is make clear that it regards the first element of a structured approach to proportionality as being addressed by the two limbs (a) the property right and (b) the management of its housing stock .

      It does not address the questions of whether or not less restrictive means are available to meet that legitimate aim or whether there is a rational connection between eviction and the aim .

      I see nowhere suggested for example that it would be proportionate to evict someone for rent arrears of £100 caused entirely by the incompetence of its own HB department simply because no full housing duty would be owed (e.g because the tenant was not in priority need)

      Perhaps the most alarming thing about this decision is the pessimism it seems to have engendered.

  9. Paragraphs 10, 15 and 19 are particularly good.

    19 states ‘The social purpose of the introductory tenancy regime is to allow local authorities to grant tenancies to new tenants without conferring security of tenure upon them until they have demonstrated that they are responsible tenants during the introductory period. This is a factor which will always be highly relevant in any assessment of the proportionality of the landlord’s claim for possession, as the effect of denying the claim will be that an introductory tenant who may not deserve a secure tenancy will automatically obtain one. ‘.

    It is not expressly stated but it appears that Lord Hope is saying that the policy behind the creation of introductory and non-secure tenancies was to allow the council to assess the tenant’s suitability before granting them a secure tenancy; this is so that they are able to manage their own housing stock. If they deem a tenant to be unsuitable then it will be proportionate for possession to be given and the nature of these types of tenancies allows councils to use any grounds at all to decide that a tenant is unsuitable.

    The full housing duty point comes into play because I cannot see how a council can use the legitimate aim of managing their housing stock (and therefore resources) if the tenant will be housed in temporary accommodation following an eviction from an introductory tenancy. It would be completely irrational.

    • I am afraid you are putting 2 and 2 together and making 5 . It is ” highly relevant ” not ” determinative ” .

      Moreover, it cannot qualify the fundamental elements of proportionality set out in Pinnock or the need to show factual justification .

      The full housing duty is of course also relevant to proportionality but again not determinative e.g it might be entirely lawful to evict due to the effect on a neighbour persecuted by a delusional tenant but equally to accept that tenant is not intentionally homeless . On the other hand evicting elderly non-statutory successor from a flat to put him in another flat is likely to be more difficult to say is proportionate.

      I am afraid you are drawing far too hard and fast rules from this case.

    • Many thanks, Nic. That was an interesting and useful talk and anyone who wasn’t there should certainly read your notes. There may be some around these parts who are a bit less pessimistic about the private sector/horizontal effect arguments to come, but your view is a valuable counterweight to over-optimism in that regard.

  10. Thought I should wade in to support NL on the earlier part of the thread- We have permission to appeal on a “does the rule in Hammersmith v Monk survive Pinnock/Powell” basis (and other grounds)- It’s only at CJ level but I’m pleased to see that Nic Madge thinks there’s an issue to be decided.

    • Ooooh. Very interested to hear how that goes, not least because I just may be running a PLD/Art 8 defence to a Hammersmith v Monk case myself at the moment (on, you won’t be surprised to hear, a LA procured NTQ). My view is, also not surprisingly, that the rule can’t survive unscathed.

  11. Thanks for that, 1215, I/we have a particular interest in the continuing existence of the rule in Monk, so do keep us in touch. By the way, does anybody know what’s happened to Wilson v Harrow?

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