Proportionality post-Pinnock
Just when we thought that the dust had settled on proportionality and possession proceedings, two important new cases have emerged, writes Stephanie Smith.
Many readers will be familiar with the concept of “gateway A and B defences” to mandatory possession proceedings, i.e. where a defendant challenges either: a) the law pursuant to which possession is sought (on the ground that it is incompatible with the European Convention on Human Rights; or b) the local authority’s decision to seek possession as unlawful or unreasonable in a judicial review sense. These “gateways” were identified by the House of Lords in Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465 and developed further in Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367, so as to permit a court (in relation to a “gateway b” challenge) to determine factual disputes between the parties as part of its review of the decision to evict.
In Kay, the majority held (in the context of trespassers) that domestic law was compatible with Articles 6 and 8, European Convention on Human Rights (“ECHR”) because a defendant had the opportunity of: a) challenging the compatibility of legislation with Art.8, ECHR, and b) raising (in the county court pursuant to the principle in Wandsworth LBC v Winder [1985] AC 461) what amounted to a public law challenge to the decision to evict. Any defence based on personal circumstances alone was liable to be struck out and it was only in exceptional circumstances that an Art.8 defence would be successful.
In Kay’s wake came the decision of the European Court of Human Rights (“ECtHR”) in McCann v UK [2008] ECHR 385 which held, that eviction was a most extreme form of interference with the right to respect for the home under Art.8, ECHR and that in such circumstances, an occupier was entitled to have the proportionality of the eviction assessed by an independent tribunal. The Supreme Court considered this decision (amongst other ECtHR authorities) in Doherty v Birmingham CC.
It affirmed the test in Kay, with some modification (in particular the ability of the court – on reviewing the decision to evict – to determine any relevant disputes of fact). The ECtHR issued a number of further decisions which confirmed the reasoning in McCann, not least of which was the decision in Kay v UK. Nonetheless, in Kay v UK, the ECtHR suggested that the availability of a public law challenge, suitably modified to enable a court to determine disputed issues of fact per Birmingham CC v Doherty, may be sufficient to render domestic law compliant with Art.8, ECHR.
It was in relation to introductory and demoted tenancies that a problem with this general approach arose. The legislative scheme governing introductory tenancies (in Part V, Housing Act 1996), had been interpreted by the Court of Appeal,1 in such a way that the county court had no jurisdiction to hear a public law defence and that any possession claim should be adjourned pending an application for judicial review of the authority’s conduct of the review. The wording of the scheme was very similar insofar as it applied to demoted tenancies. The ECtHR in McCann had made plain that the ability to judicially review a local authority’s decision to evict was insufficient to comply with Arts.6 and 8, ECHR owing to the absence of any substantive fact-finding jurisdiction.
Moreover, despite the findings of the House of Lords/Supreme Court in Kay and Doherty, challenges were still being raised in all types of mandatory possession proceedings based on the fact that the occupier was being deprived of a determination of the proportionality of his or her eviction by an independent tribunal e.g. succession cases, accommodation provided to the homeless pursuant to Part VII, Housing Act 1996, other categories of tenancy excluded from the secure tenancy regime and possession claims brought by housing associations based on mandatory grounds under the Housing Act 1988 (e.g. under s.21).
In light of a series of decisions of the ECtHR which affirmed McCann, the Supreme Court, when faced with four sets of proceedings in which it had been argued that the Defendants were entitled to an assessment of the proportionality of their eviction (Manchester CC v Pinnock, and the conjoined appeals in Hounslow v Powell, Leeds CC v Hall and Birmingham City Council v Frisby) decided that the time had come to depart from the principles enunciated in Kay and introduce proportionality as a factor to be considered when raised by an occupier in proceedings.
Manchester CC v Pinnock
In Pinnock, Manchester City Council had granted Mr Pinnock a tenancy of a property in its area in 1978. Mr Pinnock lived there with his partner and, at varying times, with one or more of their five children. There had been a long and torrid history of anti-social behaviour by Mr Pinnock’s partner and his children, though Mr Pinnock was not found to have engaged in anti-social behaviour himself.
As a result of the anti-social behaviour, the council brought possession proceedings against Mr Pinnock. At first instance, the court noted that Mr Pinnock himself was blameless and thus refused to make a possession order (whether outright or suspended on terms). Instead, the judge made an order demoting the tenancy under Part V, Housing Act 1996. This had the effect of replacing the former secure tenancy under the Housing Act 1985 with a new tenancy subject to a procedure for recovering possession which, if satisfied, enabled the council to obtain a mandatory outright possession order. Having demoted the tenancy, the judge ordered that the following become covenants of the new tenancy:
“4.1 You are responsible for the behaviour of every person (including children) living in or visiting your home...
4.2 You (or anyone living with you, or visiting your home) must not cause a nuisance, annoyance or disturbance to any other person...
4.3 You (or anyone living with you, or visiting your home) must not harass any other person...”
Sure enough, after the tenancy was demoted, two of Mr Pinnock’s sons engaged in further serious anti-social behaviour for which they were subsequently convicted (including one son causing death by dangerous driving). The council served a notice of possession proceedings under s.143B(3) and Mr Pinnock sought a review. After service of the notice and before the review hearing, Mr Pinnock’s son was convicted of burglary in the vicinity of the property. On review, the council had regard to the anti-social behaviour perpetrated before the notice was served as well as that which had come to light afterwards and decided to proceed to evict Mr Pinnock. The council asserted that the anti-social behaviour complained of constituted a breach of the covenants imposed in the demotion order.
The council issued proceedings which Mr Pinnock defended on inter alia the following grounds:
- a) the procedure for recovering possession in respect of a demoted tenancy was incompatible with Art.6, ECHR;
- b) there had been no breach of the tenancy agreement because neither son lived at the property;
- c) the decision to recover possession was an improper exercise of the council's discretion. The decision did not respect but infringed Mr Pinnock's Art.8 rights.
The judge at first instance held that he was bound by the decision of the Court of Appeal in R (Gilboy) v Liverpool CC [2009] QB 699, in which the demoted tenancy regime was held to be Art.6 compliant. He also held that, whilst there had been no breach of the tenancy in relation to the pre-notice anti-social behaviour, the incident for which one of Mr Pinnock’s sons was convicted after the notice was served – but which was dealt with at the review hearing – constituted a breach of tenancy (as the judge found he was living at the property at the material time) and therefore the council’s decision to evict was unimpeachable.
Mr Pinnock appealed to the Court of Appeal which upheld the decision of the lower court. Mr Pinnock unsuccessfully appealed to the Supreme Court. A nine-judge panel of the Supreme Court held (in the context of demoted tenancies under Part V, Ch.1A, Housing Act 1996) that where a local authority brought possession proceedings relying on a mandatory ground for possession, any defence to that possession claim can include the occupier’s entitlement to have the proportionality of his eviction assessed by a court under Art.8, ECHR despite his occupation rights having ended as a matter of domestic law. Such an assessment should only occur if the issue is raised by the occupier and is seriously arguable. In the instant case the Supreme Court dismissed the appeal on the basis that it was not seriously arguable that the making of a possession order was disproportionate in the circumstances.
The decision in Pinnock left a number of questions unanswered. How ought the county courts deal with an Art.8 defence in practice? Could and/or should other statutory mechanisms be read down in the way the Supreme Court had seen fit to do in relation to the demoted tenancy scheme (i.e. to read into s.143D of the 1996 Act the word “lawfully” which opened the door to a consideration of proportionality). Moreover, was the statutory restriction under s.89, Housing Act 1980, (which prevents a court from postponing the giving up of possession beyond six weeks), incompatible with Art.8 or capable of being read down?
The Supreme Court in Pinnock deliberately left these matters to be ventilated in Powell, principally because the latter concerned both the introductory tenancy scheme in Part V, Ch.1 of the 1996 Act and non-secure tenancies granted under the homelessness regime in Part VII of the 1996 Act, both of which are far more common forms of tenure than demoted tenancies.
Hounslow LBC v Powell et al
Mrs Powell applied to Hounslow LBC (“Hounslow”) as homeless. The council were satisfied that they owed her the full duty to secure accommodation for her and her family under s.193(2) of the Housing Act 1996 and, on April 2, 2007, they granted her a licence which was excluded from the security of tenure provisions of the Housing Act 1985 and therefore terminable by notice to quit. Ms Powell fell into rent arrears and Hounslow served a notice to quit and commenced possession proceedings. Ms Powell admitted the rent arrears but claimed they were caused by errors and delays in claiming housing benefit. The county court made a possession order but execution of that order was stayed as Ms Powell was granted permission to appeal.
Leeds CC v Hall
On 21 April 2008, Leeds CC (“Leeds”) granted Mr Hall an introductory tenancy. As a result of complaints about noise nuisance and other anti-social behaviour, a noise abatement notice was served, against which Mr Hall did not appeal. Complaints continued to be received and, on 6 March 2009, Leeds served a notice of proceedings for possession under s.128 of the 1996 Act. Mr Hall sought a review which was unsuccessful and Leeds commenced possession proceedings. At a hearing on 6 August 2009, Mr Hall raised no challenge to the validity or appropriateness of the notice but requested that the court consider whether matters which had occurred after the service of the notice could provide a basis for challenging Leeds’ decision to seek possession. The judge held that he could not consider such matters owing to the mandatory nature of the proceedings and made a possession order. The judge gave Mr Hall permission to appeal and stayed execution of the warrant in the meantime.
Birmingham CC v Frisby
On 23 April 2007, Birmingham CC (“Birmingham”) granted Mr Frisby an introductory tenancy. As a result of complaints of noise nuisance, a noise abatement notice was served under s.80, Environmental Protection Act 1990. Mr Frisby did not appeal against this notice. The complaints continued and, after extending the introductory period of the tenancy, Birmingham served a notice of possession proceedings. Mr Frisby requested a review but failed to attend an adjourned hearing of that review and, in his absence, the decision to seek possession was upheld. Birmingham issued possession proceedings which Mr Frisby defended on the basis the review decision was unlawful. The District Judge struck out the defence but stayed the claim pending an application for judicial review of Birmingham’s decision to seek possession. Mr Frisby was given permission to appeal and the matter was leap-frogged to the Court of Appeal.
The Court of Appeal (in Salford CC v Mullen [2010] EWCA Civ 336; [2011] 1 All E.R. 119), being bound at the time by the decisions in Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 AC 465, and Doherty v Birmingham CC [2008] UKHL 57; [2009] 1 AC 367, dismissed the appeals but gave permission to appeal to the Supreme Court.
Issues on appeal
In the Supreme Court, the appeal gave rise to four main issues, namely:
- what is the form and content of an Art.8 proportionality review;
- what procedural protections are implicit in Art.8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced;
- can s.127(2) of the 1996 Act be read compatibly with the introductory tenant’s Art.8 rights, so as to allow a defence to be raised on Art.8 grounds; and
- can the court defer the delivery of possession beyond the six week period permitted under s.89, Housing Act 1980 if it considers it to be the proportionate course and, if not, should there be a declaration of incompatibility?
Judgment
Lord Hope and Lord Phillips gave judgments with which the other Justices agreed. After summarising the statutory background to the cases, Lord Hope affirmed the approach set out in Pinnock, namely that a court should consider proportionality if the issue is raised by an occupier and has passed the high threshold of being “seriously arguable” (i.e. seriously arguable that the Art.8 defence could affect the order that the court might make). This should be determined summarily.
When dealing with an Art.8 defence, the first step for the court is to assess whether the property of which possession is sought constitutes the occupier’s home. This will depend on “...the factual circumstances, namely the existence of sufficient and continuous links with a specific place”: Paulic v Croatia (App. No. 3572/06) (unreported). In the majority of cases, where the occupier was lawfully in occupation, this was likely to be satisfied. A property was only not likely to be a home where a defendant had recently moved into accommodation on a temporary or precarious basis.
Secondly, the court should determine whether the making of an order for possession is a proportionate means of achieving a legitimate aim. The legitimate aim for local authorities is provided by the fact that the making of a possession order serves to vindicate their ownership rights and enables them to comply with their public duties to allocate and manage their housing stock. The court should always take these aims for granted. Thus, in the overwhelming majority of cases, there will be no need for a local authority to explain and justify its reasons for seeking possession. The court should only be concerned with the occupier’s personal circumstances and any factual objections which are raised. In relation to the latter, Lord Philips held that, in attacking the reasons given to the tenant for seeking a possession order, either the tenant will argue that the facts relied on by the authority to justify seeking the order do not do so, or he will contend that those facts are not accurate.
Procedural protection
Lord Hope was reluctant to set down strict procedural guidance in homelessness cases, principally because “... the way claims should be dealt with procedurally are best addressed in light of the facts and circumstances arising from the way proceedings are actually being handled in practice. Otherwise there is a risk that such guidance as this Court can give will create more problems than it will solve.” His Lordship noted that there was no statutory obligation to give reasons with the notice to quit in homelessness cases and that the local authority did not have to justify its motives in seeking possession.
In relation to introductory tenancies, (where ordinarily a claim for possession is accompanied by a witness statement setting out procedural compliance with the provisions of the Act and explaining the authorities reasons for continuing to seek possession: R (McLellan) v Bracknell Forest BC [2002] QB 1129 per Waller LJ at [103]), His Lordship declined to set out a revised list of requirements to be included in such affidavits and observed that such matters were more appropriate for a practice direction.
There was, however, one procedural issue upon which Lord Philips commented, namely whether a local authority was required to give notice of the reasons for seeking possession in homelessness cases.2 His Lordship expressed the belief that the Strasbourg Court would not tolerate a regime under which a person could be deprived of his home by a public authority without being told the reason for this and went on to hold that an authority must inform a tenant of the reason for the authority’s action so that he can, if so minded, attempt to raise a proportionality challenge. His Lordship refused to go on to identify when and how such notice should be given.
Introductory tenancies
Lord Hope held that the Supreme Court’s approach to reading down the demoted tenancy scheme (i.e. by reading in the word “lawfully” and by the application of ss.3(1) and 7(1)(b), Human Rights Act 1998) was equally applicable to the introductory tenancy scheme. Lord Phillips observed, contrary to the submissions of counsel for Birmingham, that the probationary nature of the introductory tenancy scheme (which, it was argued, formed part of the process of allocating accommodation and therefore was a matter for the authority and not the courts) was not a basis for distinguishing that scheme from the demoted tenancy scheme. Consequently, the Court refused to make a declaration of incompatibility.
Section 89, Housing Act 1980
The Court observed that s.89 could not be read down in the same way as the above statutory schemes because s.89 expressly prohibited the exercise of the extended powers given to a court in relation to secure tenancies. But, in any event, there was insufficient evidence to demonstrate that the maximum period of six weeks was insufficient to meet the needs of cases of exceptional hardship. Consequently, the Court refused to make a declaration of incompatibility. It was noted that s.89 did not take away the court’s case management powers to adjourn where a legitimate case management reason existed. Lord Hope stressed, nonetheless, that a court could not “…play for more time by suspending or staying [the possession order’s] effect so as to extend the time limit beyond the statutory maximum”.
Disposal of the appeals
In light of the decision in Pinnock, Hounslow had offered Ms Powell suitable alternative accommodation and Leeds had offered Mr Hall a secure tenancy of his property on the basis the complaints had ceased. The Supreme Court allowed these appeals because no purpose was served by maintaining the possession orders and respective notices which precipitated the proceedings. Lord Hope noted that, but for Hounslow’s offer, he would have been minded to remit the claim to the county court for an assessment of proportionality. Moreover, he would have been minded to dismiss Mr Hall’s appeal on the basis that nothing had been put before the court to suggest his Art.8 defence was seriously arguable. Birmingham made no offer to Mr Frisby and argued that the appeal should be dismissed as Mr Frisby had given no indication of the issues he wanted to raise in respect of proportionality, he had not taken the opportunity of applying for permission to judicially review Birmingham’s decision to seek possession, nor had he appealed against the noise abatement notice. The Supreme Court dismissed Mr Frisby’s appeal for those reasons.
Comment
This judgment is the rather quiet culmination of the line of authorities referred to above. It is unsurprising that introductory tenancies have been treated in the same way as demoted tenancies given the similarities in their respective legislative schemes. The Supreme Court did not consider it appropriate to treat either introductory tenancies or tenancies granted to the homeless as special categories where proportionality was e.g. taken as read in all cases.
The judgment clarifies to a certain extent to procedure to be followed by the county courts dealing with busy lists but it is questionable how these principles will be applied in the immediate aftermath of the decision. Local authorities particularly will be keen to see how the “summary” assessment is carried out. It is expected that where issues of proportionality are raised in a five-minute hearing in a busy list, judges will be highly likely to adjourn cases for fuller argument until there is a greater familiarity with the legal principles and approach to be taken.
Moreover, despite the expectations of the Supreme Court, it is anticipated that far more cases will exceed the “high threshold” of being seriously arguable such as to necessitate a trial of those facts which are disputed or pleaded in support of a proportionality defence. For those who represent occupiers, the availability of public law defences is likely to be of far greater substantive benefit than a straightforward proportionality defence.
The future?
So where do these decisions leave us? It seems that the appellant courts will strain to read down legislation which seems prima facie incompatible with Arts.6 and/or 8 so as to enable a proportionality assessment to be carried out. What is less clear is how the courts will approach common law rules (i.e. the rule in Hammersmith v Monk [1992] 1 AC 478 which determined that service of a notice to quit by one of two or more joint tenants is effective to terminate the entire tenancy). This issue is live in the case of Harrow v Wilson [2010] EWHC 1574 (QB), which is pending appeal to the Court of Appeal.
Will the appellate courts take as stringent an approach to rules such as that in Monk as they have in respect of the various statutory schemes already scrutinised or will they see fit to overturn them fully and/or replace them with a more proportionate alternative? How will such a step affect private landlord and tenant relationships? There seems to be a significant risk that landlord and tenant principles will be divided according to the status of the landowner/landlord. This will be particularly true of private registered providers of social housing some of whom will be exercising a public function when allocating their housing stock, some of whom will not.
Finally, it is questionable whether these decisions leave occupiers in a much better position given that a legitimate aim is “taken for granted”. Occupiers will arguably have to demonstrate that their personal circumstances are in some way exceptional or that there is some factual error which lead to the decision to evict in order for proportionality to add anything to their defence. Moreover, given that the courts are now charged with the function of assessing proportionality, any perceived unlawfulness in the decision to evict can arguably be cured at that stage by the court.
Stephanie Smith is a barrister at Arden Chambers (www.ardenchambers.com). This article was based on articles that were originally published on www.ukscblog.com.
