Human rights – Possession proceedings – Possession orders sought by local authorities against persons occupying premises under introductory tenancy regime and homelessness regime of Housing Act 1996 – Extent to which court required to consider proportionality of possession order – First and second appeals allowed – Third appeal dismissed
These were three conjoined appeals against possession orders made in favour of the respondent local authorities in respect of residential accommodation occupied by the appellants. In the first appeal, the appellant had been granted a licence to occupy pursuant to the local authority’s duties to homeless persons under Part VII of the Housing Act 1996 but possession had been sought on the ground of rent arrears. In the other two appeals, the appellant held a tenancy granted by the relevant local authority under the introductory tenancy regime set out in the 1996 Act; possession was sought on the ground of anti-social behaviour during the probationary period of the tenancy. None of the three appellants enjoyed security of tenure under the relevant statutory provisions nor had they any private law defence to the possession claim. The appellants argued that the possession proceedings breached their rights under Article 8 of the European Convention on Human Rights. Each sought to challenge, on proportionality grounds, the lawfulness of the local authority’s decision to seek possession.
In all three cases, the county court rejected the defence and granted a possession order, which was upheld by the Court of Appeal: see Salford City Council v Mullen [2010] EWCA Civ 336; [2011] 1 All ER 119. On appeal to the Supreme Court, the central issue was the extent to which the county court could or should have considered the proportionality of making the possession orders. By the date of the court’s decision, the first appellant and her family had been rehoused in the same property and the second appellant had been granted a new secure tenancy of his existing accommodation.
Held: The first two appeals were allowed; the third appeal was dismissed.
(1) Where a local authority asked the court to make an order for possession of a person’s home, Article 8 required that the court should have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact: Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 WLR 1441 applied. That proposition applied to all cases where a local authority sought possession of a person’s home within Article 8, including those under the introductory tenancy and homelessness regimes of the 1996 Act. The question was whether the making of an order for the occupier’s eviction was a proportionate means of achieving a legitimate aim.
As a general rule, the court would have to consider whether the making of a possession order was proportionate only if the occupier raised the issue. In the majority of cases where domestic law imposed no requirement of reasonableness and gave an unqualified right to an order for possession, the local authority would not need to plead their precise reasons for seeking possession. If the occupier had raised the proportionality point, the court should consider it summarily and dismiss it if satisfied that it was not seriously arguable in that, even if the facts relied on were made out, the point would not succeed. The threshold for raising an arguable case on proportionality was high and would succeed only in a small number of cases. The court was not equipped to decide how housing should be managed in the interests of the community and, in most cases, it should proceed on the basis that the landlord had sound management reasons for seeking a possession order.
(2) If the threshold were crossed, the question then would be whether the order for possession pursued a legitimate aim within Article 8(2). A possession order would be proportionate if it: (i) served to vindicate the authority’s ownership rights; and (ii) enabled the authority to comply with their public duties regarding the allocation and management of their housing stock. In introductory tenancy and homelessness cases, the relevant facts would ordinarily be encapsulated within the two legitimate aims set out above. The legislature had excluded introductory tenancies and those granted pursuant to the homelessness regime from security of tenure for reasons that were firmly rooted in social policy. It had sought to strike a balance between the rights of the occupier and the property rights and public responsibilities of the public authority.
(3) The homelessness regime under Part VII of the 1996 Act complied with the requirements of Article 8 since it did not prevent the court from refusing to make an order for possession if that would be disproportionate. The statutory regime with regard to introductory tenancies was also compatible with Article 8, notwithstanding that section 127(2) appeared to require the court to make a possession order in every case in which the requirements of section 128 and, by implication, section 129 were met. Those requirements, which included giving notice of the reasons for seeking possession and of the right to a review, were procedural in nature. Section 127(2) could be read, on an application of section 3 of the Human Rights Act 1998, as permitting the court to consider whether that procedure had been lawfully followed having regard to the defendant’s Article 8 rights: Pinnock applied.
(4) Although the issue did not strictly arise in any of the appeals, the court was of the view that where a possession order was made, delivery of possession could not be deferred for more than the maximum period of six weeks permitted by section 89 of the Housing Act 1980 on the ground that a longer period was required for proportionality. Given the strong language of section 89, section 3 of the 1998 Act could not be used to read down its provisions or allow a departure from its strict timetable. That did not necessitate a declaration of incompatibility with Article 8 since no evidence had been put before the court to show that, in practice, the six-week period was insufficient to meet the needs of cases involving exceptional hardship.
(5) In the first two appeals, the possession order would be set aside as serving no useful purpose in the light of the subsequent offer of accommodation by the local authority. In the third appeal, the possession order should stand because the appellant could advance no arguable case that the making of the possession order was disproportionate.
Jan Luba QC and Kevin Gannon (instructed by Scully & Sowerbutts) appeared for the first appellant; Jan Luba QC and Adam Fullwood (instructed by Zermansky & Partners, of Leeds) appeared for the second appellant; Jan Luba QC and Michael Singleton (instructed by Evans Derry Binion, of Birmingham) appeared for the third appellant; Ashley Underwood QC and Kelvin Rutledge (instructed. by the legal departments of Hounslow London Borough Council and Leeds City Council) appeared for the first and second respondents; Andrew Arden QC, Jonathan Manning and Robert Brown (instructed by the legal department of Birmingham City Council) appeared for the third respondents; Daniel Stilitz and Ben Hooper (instructed by the Treasury Solicitor) appeared for the secretary of state for communities and local government, as intervener.
Sally Dobson, barrister
