Grant Shapps has given A statement to Inside Housing on his view of the impact of Pinnock v Manchester and Powell v Hounslow on the plans for flexible tenancies.
The short answer is not a lot. He points to the ‘exceptional case’ provision and the presumption of proportionality. He also argues that the review provisions for possession of flexible tenancies satisfies Pinnock guidance.
And he may well be right, although I suspect things will not be so straightforward as the new provisions bed down.
On the rest, one might wonder how flexible tenancies will give providers “greater control over ensuring that their social housing goes to those most in need”, given that the tenancies are supposed to go to those in work, but that will have to wait for another time.
It’s very similar to the line they took at Committee stage (HoC) for the Localism Bill. The relevant parts start with a question from Nick Rainsford MP (here: and subsequent pages)
In his dreams . Mr Shapps needs some better lawyers in his department.
And that from one who knows whereof he speaks. Mr Shapps stands duly warned.
The advice he appears to have been given is Kayesque .
Moreover, where has exceptionality reared its ugly head from ? Lord Neuberger was clear in Pinnock that this was not the test .
I think from a reading of Powell.
Mind you, for a truly (cough) debatable reading of Pinnock and Powell, you could try this
That is a misreading of Powell – the 7 cannot change what the 9 have decided. Could they have been any clearer in Pinnock.
“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 LordWalker 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.
52. “
A letter to the editors of the NLJ might be in order. The whole thrust of the (Holbrook) article is that exceptionality is indeed the touchstone for Art 8 or public law defences.
I’m already on it
That wouldn’t be the only shall we say questionable assertion in that article. For instance, when must the defence be raised?
‘These cases are perplexing for deciding
that County Courts have powers to trump
the will of Parliament’
Wasn’t it Parliament that passed the Human Rights Act?
I think this may be connected with the argument advanced by Hounslow, Leeds and Manchester in the court of appeal in Powell v Hounslow etc that a gateway b defence could not be argued in the County Court and that Wandsworth v Winder only allowed defences of private rights. Our report described that as “possibly the most bizarre submissions I’ve ever come across from mostly ordinarily sensible people.” http://nearlylegal.co.uk/2010/04/five-go-to-mornington-crescent/
Or it may not be so connected…
Aside from the constant referring to ‘exceptionality’ as a relevant test in this NLJ piece, the point that ‘denials’ of nuisance are ‘not exceptional’ and therefore, one assumes, that any case in which that is all the occupier offers is doomed to failure is just plain wrong: Pinnock at [49] and [74] makes the point as clear as can be. The rather odd reference to McLellan by Lord Phillips at [93] in Powell cannot sit with these paragraphs of Pinnock. If the facts underlying the decision to evict are disputed then the court needs to determine them for itself.
You’ve also gotta love the way Holmes Moorhouse is shoehorned in too…
It may be the case that the NLJ might (or if they won’t someone else will) print a response to that article.
Going by the response here, if nobody else does, we will. We might anyway. Bit of a first, but what the hell…
What do you think of this analysis?:
http://www.insidehousing.co.uk/ihstory.aspx?storycode=6514193
I was toying with doing a piece on that, but decided Batchelors could do their own publicity. I’d say a) it isn’t an analysis and b) going only on the facts given in that article, it was a pretty hopeless defence. Clearly the ground was shifting under their feet – first Pinnock then Powell happened during the life of the application – but it can’t ever have looked like a strong case. The court functioned as it should, apparently.
Batchelors’ PR announcement of their dragon-killing prowess, on the other hand, amuses me immensely.