The saga continues

Recent guidance laid down by the Supreme Court is unlikely to mean the end of human rights challenges in housing cases, writes Scott Greenwood.

The number of challenges since the case of London & Quadrant v Weaver continues to pick up pace in the courts and has continued to cause the judiciary a number of issues in interpreting European Human rights law when considering our own domestic law. The Weaver case set down the principle that for the purposes of housing management and housing allocation a RHP is to be considered a public authority, which opens up the possible challenge against possession actions by a tenant by relying on human rights arguments and also public law arguments.

The courts have grappled with the idea as to how to apply European Human Rights principles to our law. In the case of Doherty v. Birmingham City Council the Supreme Court set down two possible routes for challenge: Gateway A, where a tenant can attempt to argue that the actual law being applied is incompatible with convention rights; or Gateway B, that the decision to take possession and/or the proceedings are neither reasonable nor proportionate. We then had the recent case of Manchester City Council v. Pinnock, which dealt with demoted tenancies in which the Supreme Court held that a tenant has the right to have the issue as to proportionality of the proceedings determined by the Court, but that it would need to be a highly exceptional case in order to defeat a landlord's right to summary possession.

Hounslow and others

Hounslow LBC v. Powell; Leeds City Council v. Hall; Birmingham City Council v. Frisby (February 2011 Supreme Court)

In the above recent authority the Supreme Court has considered the effect of Pinnock (which dealt with demoted tenancies) in relation to introductory tenancies and unsecure tenancies granted to homeless persons under Part VII of the Housing Act 1996. In these cases Ms Powell, Hounslow’s tenant, held a non-secure licence, Mr Hall, Leeds’ tenant, held an introductory tenancy, as did Mr Frisby, Birmingham’s tenant. There are various reasons as to why these landlords required possession, including rent arrears (Ms Powell) and ASB (Mr Hall and Mr Frisby).

Generally, the Supreme Court provided the following guidance:

1. In most cases, for a challenge under Article 8 of the European Convention of Human Rights to be engaged (applicable) the property that the tenant or occupier holds will be considered a home for the purposes of such a challenge.
2. The court need only consider whether the making of a possession order is proportionate if the issue had been raised by the occupier and had crossed the high threshold of being seriously arguable.
3. Cases where the defendant is able to show a seriously arguable defence may be rare and in the majority of cases the Court should proceed on the basis that the landlord has sound management reasons for seeking a possession order.
4. If in those rare cases where the threshold is crossed, then the landlord will need to show a legitimate aim in accordance with Article 8(2) of the Convention, to support their decision to take possession proceedings. A legitimate aim upon which a local authority (or housing association) may rely would be their ownership rights and the performance of their public duties in relation to the allocation and management of their housing stock. These two aims together should satisfy the legitimate aim requirement.
5. Only in these cases where there is a seriously arguable defence put forward would it be necessary for a Judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. Otherwise, the order for possession should be granted.
6. In introductory cases, the court found that the relatively low threshold for justifying determination, and the significant statutory procedure of safeguards for the tenant – i.e. the right to notice and a review – were factors which would make it extremely unlikely that the tenant could cross the threshold.
7. The court also found in Part VII homelessness cases that it would be equally unlikely that substantial ground for a proportionality challenge could be shown. It  would be difficult to see what facts the tenant could rely upon to mount a proportionality challenge and in any event there would be a right to review of the suitability of any further accommodation (section 202 1996 Act).
8. The Court found that the time limits to suspend an order for possession in section 89(1) of the HA 1980(6 weeks) was proportionate and compatible with the convention on Human Rights and there was no need to extend this.

Comment

I suspect that although the Supreme Court has provided the guidance above this will not be the end of the number of challenges based on human rights arguments put before the Courts.  From a practical point of view it would be best practice in all cases, regardless of the occupant’s tenure, to ensure that all of the resident’s circumstances are considered and taken into account in deciding whether to start a possession action. It is important that this decision-making process is documented so that an audit trail can be shown should there be a challenge in any proceedings for possession.

In summary of all the recent authorities, we now have the following process:

• Is the property that the tenant is occupying considered to be their home for the purposes of raising Article 8 of the European Convention on Human Rights – in the majority of cases the Supreme Court is of the view that it will be.
• If the tenant raises an argument that the decision to take or proceed with possession proceedings is not proportionate in accordance with Article 8, in the vast majority of cases where the court is considering a summary ground for possession (i.e. demotion, introductory, starter, homelessness occupancy) a possession order should be granted.
• In those rare cases where the tenant is able to show a seriously arguable defence based on evidence, then it would be for the court to adjourn those proceedings and provide directions for a further hearing at which the evidence of both parties can be examined as to whether or not the decision to take and proceed to possession is proportionate. It is important to note that it is for the Defendant to raise this by way of a defence and not for the landlord as Claimant to plead their reasons to justify their action unless there are unusual reasons or circumstances for doing so.
• If a proportionality challenge is to be dealt with by the courts and that threshold is crossed, then the local authority landlord may be able to show, in those summary possession cases, that the legitimate aim in accordance with Article 8 is satisfied on the basis of (1) their ownership rights and (2) performance of their public duties in relation to the allocation and management of their stock. That said, there will still be a need for the court to fully investigate the Defendant’s defence and the facts raised within it, including any personal circumstances particular to the defence and then the local authority’s evidence in relation to these points and any other points raised as to why they satisfy the legitimate aim in bringing and continuing possession proceedings.

Scott Greenwood is a solicitor at Glazer Delmar (www.glazerdelmar.com).