A sense of proportion

The Supreme Court’s ruling in Pinnock is the latest authority on dealing with arguments against the making of possession orders relying on the European Convention of Human Rights, in particular Article 8. Scott Greenwood looks at the implications of this key judgement.

In Manchester City Council v Pinnock [2010] UKSC 45, Mr Pinnock had appealed to the Supreme Court against Manchester City Council’s enforcement of a Demotion Order against him. His primary argument was that he believed their decision to enforce was not proportionate in accordance with Article 8 under the European Convention of Human Rights.

By way of a reminder, Article 8 provides that everyone has the right to respect for his or her home and that there may be no interference with that right by a public authority except in accordance with the law and so far as is necessary a democratic society.

The Supreme Court dismissed his appeal as on the evidence they held that the enforcement of the Demotion Order was a proportionate measure by the local authority. The case involved quite serious breaches of the Demotion Order as a result of anti-social behaviour by a member of the household.

The Supreme Court had to consider what the County Court’s role was when arguments are raised by defendants in possession proceedings relying on Article 8. The Court concluded, contrary to previous United Kingdom authorities and by following case law from the European Court of Human Rights, that our lower Courts do have the authority and power to consider arguments in relation to the proportionality raised in proceedings before them. This is so even if, on the face of it, the landlord has a right to possession in accordance with domestic law.

In summary, the Court concluded that the exercise of considering proportionality could take into account various factors, but that on the whole, if the landlord is able to show through evidence that the proceedings had been taken so as to achieve a legitimate aim then those proceedings are likely to be successful i.e. the landlord is able to show by way of example that it is for the protection of others in the community, the landlord has a right to possession, has duties in relation to the distribution and management of their stock, including the fair allocation of housing amongst other reasons. The Court went on to state the fact that an authority is entitled to possession should, in the absence of any cogent evidence to the contrary, be assumed to be acting in accordance with their duties, would be a strong factor in support of the proportionality of making an order.

They then went on to say that where a public authority landlord is entitled to possession as a matter of domestic law, there will be a very strong case for saying that the making of an order for possession would be proportionate, although in some cases there may be factors which may persuade the Court to go the other way.

As to how those factors should be determined, the Supreme Court was of the view that the local County Court is best placed to deal with those issues, but as general guidance the Supreme Court provided as follows:

• Article 8 need only be considered by the Court if it is raised in the proceedings by or on behalf of the residential occupier
• If an Article 8 point is raised, the Court should initially consider it summarily and if satisfied that even if the facts relied on are made out, the point would not succeed, it should be dismissed
• If domestic law justifies an outright order for possession the effect of Article 8 may, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event or even refusing an order altogether
• Proportionality is more likely to be relevant or an issue in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty, where the issue may require the local authority to explain why they are not securing alternative accommodation in such cases.

Comment

The difficulty, of course, in allowing the County Court to deal with such issues is that this is likely to cause delay even in the most straightforward of cases where there is a mandatory right for possession in relation to the landlord’s claim. We envisage that there is likely to be an increase in Article 8 defences and in turn proportionality arguments before the Courts and that for a period of time, whilst this case is absorbed by our local Courts, there may well be a period of uncertainty in relation to the judicial decision making process. If that uncertainty results in the wrong decision, then that will lead to appeals in relation to such decisions.

That said, the Supreme Court has said that further guidance is likely to be set out in a further appeal which they are considering later on in the month in the case of Salford CC v Mullen [2010].

The only real certainty that results from this authority is that the Supreme Court have clearly indicated that the lower Courts are to follow the persuasive authorities of the European Court of Human Rights (such as the McCann case) and have directed that it is for the County Court Judge to consider arguments under Article 8 in proportionality when they are raised and where there is merit in considering whether they have any effect even if there is a right to possession in domestic law to the public landlord.

It also concluded that the County Court’s powers are not just to consider arguments in public law under judicial review principles, but the County Court Judge now has the authority to consider the argument on proportionality raised by way of an Article 8 defence.

By way of practical advice we suggest that each case is approached on a case by case basis, depending on what arguments are raised, and that any arguments put forward in proceedings and before proceedings are issued they are reviewed before a decision is made to proceed.

Scott Greenwood is a specialist in social housing law.