Supreme Court sets out key ruling on proportionality and possession orders

A court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes of the Housing Act 1996, the Supreme Court has unanimously ruled.

The judgement in London Borough of Hounslow v Powell [2011] UKSC 8 follows on from the court’s recent ruling in Manchester City Council v Pinnock [2010] UKSC 45.

In Pinnock the Supreme Court ruled that Article 8 of the European Convention on Human Rights required that a court, which is being asked to make a possession order against a person occupying under the “demoted tenancy” scheme in Part V of the 1996 Act, must be able to consider whether it would be proportionate to do so.

Powell and the related cases of Leeds City Council v Hall and Birmingham City Council v Frisby raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts.

In his judgement Lord Hope held that the proposition in Pinnock “applies to all cases where a local authority seeks possession in respect of a property that constitutes a person’s home for the purposes of Article 8”. It therefore applies to homelessness and introductory tenancy schemes.

Lord Hope also set out general guidance on how the courts should meet this requirement. “The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable,” he said.

“The question will then be whether making an order for possession is a proportionate means of achieving a legitimate aim. But it will, of course, be necessary in each case for the court first to consider whether the property in question constitutes the defendant’s ‘home’ for the purposes of Article 8.”

However, the judge said the latter was only likely to be of concern in cases where an order for possession is sought against a defendant who has only recently moved into accommodation on a temporary or precarious basis. He suggested that, 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 Artlcle 8.

Lord Hope said the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. The judge said the court was not equipped to make decisions about 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.”

The judge said that where the threshold was crossed, the proportionality of making the order for possession at the suit of the local authority would be supported by the fact that making the order would (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.

“So there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order,” the judge said. “It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock.

“The court need be concerned only with the occupier’s personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate.”

The judge added that where a court decides to entertain a proportionality argument, it must “give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority”.

An authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8. “To require the local authority to plead its case in this way would largely collapse the distinction between secure and non-secure tenancies,” Lord Hope said.

He added: “It would give rise to the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area.”

The judge said: “In the ordinary case, the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock” (see (a) and (b) above). It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances.

“It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted.”

Lord Hope said there may be cases where the local authority has a particularly strong or unusual reason for seeking possession of the property. It should be allowed to ask the court to take that reason into account, but if it does so, must plead the reason and adduce evidence in support.

The judge pointed out that, on the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. However, Lord Hope said this did not prevent the court considering proportionality. “As lawfulness must be an inherent requirement of the procedure for seeking a possession order, it must equally be open to the court to consider whether that procedure has been lawfully followed having regard to the defendant’s Article 8 rights.”

Section 89 of the Housing Act 1980, however, does restrict the court’s discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than 14 days or, in the case of exceptional hardship, six weeks.

Lord Hope said the mandatory language of the section prevented a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality required a longer period and therefore no reason to declare section 89 incompatible with Article 8.

In the individual cases of Powell and Hall, the Supreme Court allowed the occupiers' appeals. However, it dismissed the occupier's appeal in Frisby.

Neil Lawlor, a partner at Devonshires, said the Supreme Court had provided welcome confirmation of the wider application of the principles laid down in Pinnock.

Lawlor also highlighted the judgement’s clarification of the courts’ power to postpone making a possession order under s. 89 of the Housing Act 1980.

“This was deemed compatible with Article 8 and that the courts’ power to postpone the date for possession remains limited by that statute,” he said.

“The Supreme Court has also reiterated that it is only in a small proportion of cases that the tenant will be able to put forward a seriously arguable case, which should give some comfort to landlords in dealing with possession actions in the County Court.”

Philip Hoult