A court asked by a local authority to make an order for possession of a person’s home must have the power to assess the proportionality of making that order, the Supreme Court has ruled.
In a unanimous judgement in Manchester City Council v Pinnock [2010] UKSC 45, the court also ruled that the court should have the power – in making the assessment – to resolve factual disputes between the parties.
The ruling reflects “the clear and constant line” of jurisprudence from the European Court of Human Rights, but also represents a clear departure from the previous line of House of Lords authorities.
Giving the lead judgement, Lord Neuberger said the appeal gave rise to four issues of increasing specificity. These were:
- Whether the European Convention on Human Rights meant that domestic courts should be able to consider the proportionality of evicting a person from his home before making an order for possession
- If the answer is affirmative (and it was), what this conclusion meant in practice in relation to claims for possession and related claims in relation to residential property
- Whether the demoted tenancy regime can properly be interpreted so as to comply with the requirements of article 8 or whether at least some aspects of that regime are incompatible with the occcupiers’ article 8 Convention rights, and
- The application of these points to Mr Pinnock’s appeal.
Lord Neuberger pointed out that the appeal involved a relatively rare type of possession claim, namely a claim against a demoted tenant.
However, he said a number of general points could be made. These were:
- It is only where a person’s “home” is under threat that article 8 comes into play. “There may be cases where it is open to argument whether the premises involved are the defendant’s home (eg where very short-term accommodation has been provided)”
- As a general rule, article 8 need only be considered if the point is raised by the occupier
- Where an article 8 point is raised, the court should initially consider it summarily “and if, as will no doubt 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”. The point should only be further entertained if the court is satisfied that it could affect the order that the court might make
- If domestic law justifies an outright order for possession, the effect of article 8 “may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period of possession, suspending the order for possession on the happening of an event, or even refusing an order altogether”
- The conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited. These include s. 89 of the Housing Act 1980 and some provisions of CPR 55
- Proportionality is more likely to be a relevant issue – as submitted by the Equality and Human Rights Commission – in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty. Local authorities may also in such cases be required to explain why they are not securing alternative accommodation.
Lord Neuberger ruled that it was possible to read and give effect to s. 143D(2) of the Housing Act 1996 – which provides that the courts “must” make an order for possession unless they think the relevant procedure has not been followed – in a way that would allow the court to review the proportionality of a landlord’s decision to seek possession.
The judge added that, in particular by virtue of s. 7(1) of the Human Rights Act, county court judges have the necessary jurisdiction to carry out an article 8 proportionality review. Accordingly, the demoted tenancy regime was compatible with the Convention.
Applying this to the specific case, the Supreme Court ruled that – given the undisputed evidence of three serious offences committed by Mr Pinnock’s sons in or in the immediate vicinity of the property during the year in which the demotion order was in force – the possession order was proportionate and so should be upheld.
Reacting to the judgement, leading housing lawyers have warned of severe disruption to the courts as well as social landlords.
