| SPOTLIGHT |
The activities of social housing providers and the courts could be severely disrupted following yesterday’s landmark Supreme Court ruling on proportionality and possession proceedings, leading housing lawyers have warned.
The UK’s highest court ruled that a court, when 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. That court must also be able to resolve factual disputes between the parties, the unanimous judgement found.
Nick Billingham, partner at Devonshires, described the ruling as “disappointing but not altogether surprising”.
He added: “Most of us thought that the UK would fall into line with the European Court eventually but it has maybe happened sooner than we expected.”
Billingham predicted that proportionality hearings would become the norm now, given the general guidance issued by the Supreme Court.
“However much they say that such hearings can be dismissed summarily, the reality is we are going to see squatter cases, cases against non-secure and non-assured tenants, against assured shorthold tenants and against former licensees being adjourned for proportionality hearings where in the past an outright order for possession would have been granted automatically at the first five minute hearing,” he warned.
Devonshires’ head of housing management expressed concern at the prospect of severe disruption for both social landlords and the courts. “This is at a time when the courts are barely able to cope with the current workload and all this against the background of public sector cuts which will reduce the number of county courts and the amount of judicial time available,” he added. “Something has to give."
Liz Hargreaves, an associate at Shoosmiths, said the ruling would affect local authorities as well as housing associations exercising their housing management functions.
“The courts will be able to consider and assess not only if the landlord followed the necessary legal process when instigating possession proceedings but also if that action was proportionate,” she said.
“Landlords affected by the decision will need to ensure that all internal policies or procedures, relating to the management of tenancies, are adhered to and that any decisions throughout this process clearly show the basis upon which those decisions are made and why they are proportionate and that the landlord has a note of their ‘thinking process’ when making their decision.”
Hargreaves added that the Supreme Court is due to hear conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336 later this month.
“These involve possession orders in ‘more common circumstances’ and may provide more general guidance on this issue,” she said, adding that such guidance will probably not be dissimilar to that provided in the Pinnock case.
