Proportionality and exceptionality: the legacy of Cleveland Pinnock
The Starting Point
Mr Pinnock, a formerly secure, demoted tenant, had petitioned the Court about an order, made under section 143D(2) of the Housing Act 1996 (‘HA 1996’), requiring him to give Manchester City Council possession of his home. He wanted to challenge the facts leading to the local authority’s decision to recover possession of the property and maintained that the possession order violated his rights under Article 8 of the European Convention of Human Rights (ECnHR).
The Court of Appeal had previously ruled that the County Court was bound to make the order, provided it was satisfied the pre-action procedure prescribed by sections 143E-F HA 1996 had been followed. It had no jurisdiction to review the decision to recover possession of the property, whether on conventional judicial review grounds or under Article 8 ECnHR.
Questions for the Supreme Court
The Supreme Court was expected, therefore, to address the compatibility of the demoted tenancy regime with Article 8 ECnHR, as well as the availability of so-called Gateway B defences to possession claims against demoted tenants.
But it was also expected to respond to the European Court of Human Rights’ (‘ECtHR’) observation in Kay v United Kingdom about the “increasing tendency of domestic courts to develop and expand conventional judicial review grounds in the light of Article 8.”
The observation was considered, at the time, to be unduly optimistic, if not misplaced. Despite acknowledging that the review of a public authority’s decision to bring possession proceedings was not confined to traditional Wednesbury grounds and that wider considerations could be taken into account, the majority judgments in previous House of Lords decisions had not recognised proportionality as a ground of review. Even the minority judgments had observed that Article 8 would only assist an occupier in ‘highly exceptional circumstances’, a view subsequently endorsed by the ECtHR. (see Qazi v Harrow, Lambeth v Kay, Leeds v Price, Doherty v Birmingham).
Supreme Court conclusions on proportionality and article 8
In a judgment justifying the ECtHR’s optimism, the Supreme Court departed from previous House of Lords authorities, holding that a court invited by a public authority to make an order for possession of a person’s home must be able to assess the proportionality of an eviction and, in doing so, to resolve any relevant factual disputes between the parties (see paras 49 and 74).
The Supreme Court rejected the proposition that it would only be in ‘very highly exceptional cases’ that it would be appropriate to consider proportionality (para 51). Save in demoted tenancy cases, in which the proposition still holds good (para 107), the question will always be ‘whether the eviction is a proportionate means of achieving a legitimate aim’ (para 52).
The decision will make little difference to cases in which the court is required to consider whether it is reasonable to make a possession order. The Court considered it ‘highly unlikely’ that it would be reasonable to make a possession order if it would be disproportionate to do so under Article 8 (para 56).
However, where domestic law imposes no requirement of reasonableness and gives an unqualified right to possession, the obligation to consider Article 8 proportionality will ‘represent a potential new obstacle’ to the making of a possession order (para 57).
Mr Pinnock’s appeal – concerning a relatively rare type of possession claim – was considered an unsuitable vehicle for judicial guidance about the implications of Article 8 in such cases. The Supreme Court is likely to return to that question in the conjoined appeals in Mullen v Salford City Council (to be heard this month), concerning the less esoteric common law and introductory tenancy.
In the meantime, the Court confined itself to a number of general observations, leaving the ‘wide implications’ of its decision to the ‘good sense and experience’ of County Court judges.
Practical issues arising from Pinnock
Generally, a court will not be required to consider the proportionality of a possession order unless the issue is raised by the occupier. In that case, the court will be expected, initially, to consider the issue summarily. Only if it is satisfied that the issue could affect the court’s order should it be entertained further. In that respect, unencumbered property rights will carry ‘real weight’ on the scales of proportionality. In such cases, there will be a ‘very strong case’ for saying that an eviction is proportionate. Indeed, only ‘in exceptional cases’ will Article 8 justify, in ascending order of effect, postponing the date of possession, suspending enforcement of an order or refusing an order altogether. Such cases are more likely to involve ‘occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty’. In these cases, a public authority might need to explain why it is not securing alternative accommodation for the occupier (paras 54, 61, 62, 64).
In light of the Court’s decision, certain statutory and procedural provisions – notably section 89 of the Housing Act 1980 and parts of CPR 55 – would have to be revisited (para 63).
The compatibility issue
As to ECnHR compatibility, the Court concluded that it was possible to interpret section 143D(2) HA 1996 so as to allow the court to review the proportionality of a decision to seek possession and, if necessary, to assess any disputed facts. In particular, it held that, section 7(1) of the Human Rights Act 1998 gives the County Court jurisdiction to undertake an Article 8 proportionality review. Consequently, the demoted tenancy regime was ECnHR compatible (paras 77-80, 104).
At this point the Court was able to turn to the practical consequences of its conclusions for Mr Pinnock himself. In light of its decisions on the law, the Court considered whether it was proportionate to evict Mr Pinnock. Given the evidence of further anti-social behaviour by Mr Pinnock’s sons, the Court concluded that it was.
In its departure from a long line of House of Lords authorities, Pinnock may credibly be described as a landmark decision; so too in its potential to ‘develop and expand conventional judicial review grounds in light of Article 8’. In so far as it requires an assessment of Article 8 proportionality in all public authority possession claims, however, the decision is arguably less ground breaking. It will make little appreciable difference in so-called discretionary possession claims. It will be considered only exceptionally in possession claims against demoted tenants. And while it offers the possibility of occupiers becoming entrenched trespassers, in cases where a public authority landlord has an otherwise unencumbered right to possession, the Supreme Court has made clear its expectation that these will be truly exceptional cases. Recognising the exceptional case is left, pending a decision in Mullen at least, to County Court judges. For the time being, therefore, public authority landlords will have to hope that judges are given sufficient time in the lists to exercise their ‘good sense and experience’ and to dispose of unexceptional cases summarily. That will leave many hoping for a very prompt decision in Mullen!
Dean Underwood specialises in social housing and public law and regularly appears in possession actions involving public law and human rights defences.
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