A 'supreme' decision for landlords? The Supreme Court rules on demoted tenancies

Article

24 November, 2010

On 3 November 2010 the Supreme Court gave its judgment on the case of Manchester City Council v Pinnock [2010] UKSC 45. The decision has been eagerly awaited by housing practitioners hoping for authoritative guidance to be provided on the issue of human rights considerations in possession proceedings.

The matter has already been subject to judicial scrutiny in the County Court and the Court of Appeal ([2009] EWCA Civ 852). As the most senior court in England and Wales has now provided its view on the case, social landlords are advised to be aware of the judgment and the potential effect it will have on them.

The Facts

The tenant (P) was granted a tenancy of a property in Manchester by the Council (M) in 1978. P resided there with his partner and, from time to time, with some or all of their five children. In 2005, M sought an order for possession of the property, with a demotion order in the alternative. The claim was based upon allegations that P's partner and his children had been guilty of serious instances of antisocial behaviour, which breached the terms of the tenancy agreement. When the case was heard initially by the County Court, a demotion order was granted by the Judge.

Just before the demotion order expired, M served the relevant notice upon P that possession of the property would be sought. The notice stated that the decision to commence possession proceedings was due to further alleged incidents of antisocial behaviour in the vicinity of the property which concerned two of P's sons. P took up his right to seek a review of this decision and in July 2008 the review panel upheld the notice.

A claim for possession was then started and an order for outright possession of the property was made in December 2008. P appealed to the Court of Appeal, who dismissed his appeal. P then made a further appeal to the Supreme Court.

P argued that the making of the possession order violated his rights under article 8 of the European Convention on Human Rights (that everyone has the right to respect for their home and that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society). P also wished to challenge the factual basis upon which M had decided to seek possession and the review panel upheld the decision.

The Supreme Court's Decision

In a single judgment, the Supreme Court rejected P's appeal but for different reasons than those given in the County Court and the Court of Appeal.

The Supreme Court identified four main issues that needed to be addressed:

  1. whether the jurisprudence of the European Court of Human Rights required that before a possession order is made, a domestic court should be able to consider the proportionality of evicting that person from their home under article 8 and to resolve any relevant factual disputes between the parties;
  2. if the first issue is answered in the affirmative, what it would mean in relation to claims for possession;
  3. whether the demoted tenancy regime can be interpreted as being compatible with the requirements under article 8; and
  4. what the answers to issues 1-3 meant to P's appeal.

Each of these issues was considered in turn.

In relation to the first, the Court noted the development of the law in this area by both domestic and European courts. The European jurisprudence had already established that any person at risk of being evicted from their property should, in principle, have the right to question the proportionality of that decision. The Court also said that it appeared that the European Court had franked the view that only in 'exceptional circumstances' would an argument in relation to article 8 proportionality would provide a right to continued possession of the property. Although the Supreme Court noted that it was not required to follow every judgment of the European Court of Human Rights, where there was a clear and constant line of decisions which was not inconsistent with a fundamental aspect of UK law, it would be wrong for the Court not to follow that line.

In light of this, the Court departed from the previous position on UK law and held that a court which is asked by a local authority to make an order for possession of a property must have the power to assess the proportionality of making that order and, in making that assessment, to resolve any relevant dispute of fact.

It is important to note that the Court emphasised that this conclusion only related to possession claims made by local authorities and was not intended to bear on cases concerning private landlords: the Court said noted this issue would have to be determined if it arises in the future.

On the second point, although the Court noted that P's appeal was concerned with a relatively rare form of possession claim (namely against a demoted tenant), it was still able to make a number of general statements on the effect of the first issue upon possession claims in general: The Court said:

  • it was only when a person's home was under threat that article 8 would become a live issue;
  • as a general rule, article 8 should only be considered by the court if it is raised in the proceedings by the occupier of the property;
  • if an article 8 point was indeed raised, the court initially consider it summarily and if it is satisfied that the point would not be successful, it should be dismissed;
  • if domestic law justified an outright order for possession being granted, the effect of article 8 may, in exceptional circumstances, justify granting an extended period of possession, suspending the order or refusing an order altogether;
  • the conclusion that a court must have the ability to assess article 8 proportionality may mean that some statutes and other procedural provisions need to be revisited; and
  • proportionality is more likely to be a relevant issue in cases involving occupants who are vulnerable due to mental illness, a physical or learning disability or due to poor health.

Turning to the third point, the Court considered the applicability of its previous conclusions to demoted tenancies. The Court said that the first stage at which a court would be involved (where the court had to consider making a demotion order), the article 8 requirements were already satisfied. In relation to the second stage at which a court would be engaged (whether a possession order should be made in relation to the demoted property), it was held that it was possible to interpret the relevant legislation in a manner in which it would allow a court to review the proportionality of a landlord's decision to seek possession and, if necessary, to make its own evaluation of any facts that were in dispute between the parties. Therefore, this meant that the demoted tenancy scheme was compatible with the European Convention on Human Rights.

After assessing the other points, the Court moved onto the final issue: whether it was proportionate to evict P and his family from the property. The Court noted that the provisions of P's tenancy agreement contained terms that neither P nor anyone residing with him in the property would cause a nuisance, annoyance or disturbance to any other person or would harass any other person. The Court then considered the allegations in the case, which included three offences committed by P's sons in or in the vicinity of the property whilst the demotion order was in force. In the circumstances, the Court considered that it was proportionate for the possession order to have been made.

What the ruling means in practice

All occupiers of properties owned or managed by a local authority will now be able to challenge both the proportionality of the eviction and the factual basis upon which the decision to evict was made. The Supreme Court has tried to set the bar at a high level for making such a challenge. Firstly, the defendant occupier must show that it is disproportionate to evict, even on their own version of events and secondly, the Supreme Court indicated that the mere existence of an automatic right to possession would normally be enough to show that the measure is proportionate. Whether and to what extent this view is echoed by County Court judges remains to be seen.

Summary

The decision of the Supreme Court in Pinnock will hopefully provide greater clarity to the area of residential possession proceedings in the future. Social landlords will have to ensure that they have adhered to all of the relevant legislation and procedures and may also wish to be aware that article 8 defences and proportionality may still be issues raised.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220022 or email Stuart Penswick.

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