JUDGMENT
Manchester City Council (Respondent) v Pinnock
(Appellant)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Neuberger
Lord Collins
JUDGMENT GIVEN ON
3 November 2010
Heard on 5, 6, 7 and 8 July 2010
Appellant Respondent
Richard Drabble QC Andrew Arden QC
James Stark Jonathan Manning
(Instructed by Platt
Halpern)
(Instructed by Manchester
City Council )
Intervener (Secretary of
State for Communities and
Local Government)
Intervener (Equality and
Human Rights
Commission)
Daniel Stilitz QC Jan Luba QC
Ben Hooper
(Instructed by Treasury
Solicitor)
(Instructed by Equality and
Human Rights
Commission)
LORD NEUBERGER
1. This is the judgment of the Court, to which all members have contributed.
2. The principal questions in this appeal are (a) whether article 8 of the European
Convention on Human Rights (“the Convention”) requires a court, which is being
asked to make an order for possession under section 143D(2) of the Housing Act 1996
(“the 1996 Act”) against a person occupying premises under a demoted tenancy, to
have the power to consider whether the order would be “necessary in a democratic
society” and (b) if so, whether section 143D(2) is compatible with article 8 of the
Convention (“article 8”). In the result, the Court answers both questions in the
affirmative, the first at paras 22-54, the second at paras 65-107 below.
3. The appeal concerns a tenancy granted by a local authority, but observations
relating to local authority landlords in this judgment apply equally to other social
landlords to the extent that they are public authorities under the Human Rights Act
1998 (“HRA”).
4. On the other hand, we should emphasise at the outset that nothing in this
judgment is intended to bear on cases where the person seeking the order for
possession is a private landowner. We briefly explain why at para 50 below.
The background to the appeal: secure and demoted tenancies
5. Most residential occupiers of houses and flats owned by local authorities are
“secure tenants” under Part IV of the Housing Act 1985 (“the 1985 Act”). By virtue
of section 84 of the 1985 Act, a secure tenant cannot be evicted unless the landlord
establishes to the satisfaction of the court (a) that one of the grounds specified in
schedule 2 to the 1985 Act (e g, non-payment of rent or nuisance to neighbours)
exists, and (b), except in some specified categories of case where suitable alternative
accommodation is available, that it is reasonable to make an order for possession
against the tenant.
6. Even where the landlord establishes that these two requirements are satisfied,
the court has a wide discretion under section 85 of the 1985 Act as to what order to
make. It may refuse to make any order, it may adjourn the proceedings, it may make
an outright possession order which takes effect on a specific day, or it may make a
suspended possession order which will not take effect so long as, for instance, the
tenant pays the rent or creates no nuisance.
7. The secure tenancy regime was originally introduced by the Housing Act 1980
(“the 1980 Act”), but its provisions were consolidated in by Part IV of the 1985 Act.
Certain types of tenancy are excluded from this regime, and they are set out in
schedule 1 to the 1985 Act. Subsequently, amendments were made to the regime,
most relevantly for present purposes by the 1996 Act and the Anti-social Behaviour
Act 2003 (“the 2003 Act”).
8. The 2003 Act inserted a new section 82A into the 1985 Act (“section 82A”).
This section gives the court the power to make a “demotion order” in respect of a
secure tenancy. A demotion order results in a tenancy ceasing to be a secure tenancy
and becoming, instead, a “demoted tenancy”. Section 82A(4) states that such an order
may only be made if (a) the tenant (or someone living with him) has engaged, or has
threatened to engage, in (i) “housing-related anti-social conduct” (as defined in section
153A of the 1996 Act) or (ii) conduct which consists of or involves using the
“premises for unlawful purposes” (as explained in section 153B of the 1996 Act), and
(b) “it is reasonable to make the order”. Section 82A makes it clear that the demoted
tenancy is a new tenancy. The terms of the previous tenancy as to rent are carried
across into the new tenancy, but the demotion results in much reduced rights of
security of tenure for the tenant.
9. Somewhat confusingly, the provisions dealing with the operation of the
demoted tenancy regime were inserted as Chapter 1A of Part V of the 1996 Act.
Subsection (1) of section 143B of that Act (“section 143B”) explains that, if a tenancy
is demoted, the demotion will last for a year, unless the landlord brings possession
proceedings within that year. If such proceedings are brought within the year and are
not determined before the year’s end, the demoted tenancy continues until the
proceedings are determined. If such proceedings are brought within the year and an
order for possession is made, the tenancy ends. If no such proceedings are brought, or
they are brought and they fail, then, at the end of the year, the demoted tenancy will
become a secure tenancy.
10. Subsection (1) of section 143D of the 1996 Act (“section 143D”) states that a
landlord can only bring a demoted tenancy to an end by obtaining an order for
possession from the court. Since it is central to the present appeal, section 143D(2)
must be quoted in full:
“The court must make an order for possession unless it thinks that the
procedure under sections 143E and 143F has not been followed.”
11. The effect of section 143E of the 1996 Act (“section 143E”) is that, before
issuing possession proceedings against a demoted tenant, a local authority landlord
must serve a notice (a “Notice”) informing him of (a) the fact that it has decided to
seek possession, (b) the reasons why, (c) the date after which the proceedings will be
issued, (d) the tenant’s right to request a review of the landlord’s decision (a
“Review”), and (e) where to get legal advice. Section 143F of the 1996 Act (“section
143F”) entitles the tenant, within fourteen days of the Notice, to request a Review, in
which case the local authority landlord is obliged to carry out a Review which
complies with regulations made by the Secretary of State under section 143F(3) and
(4), and then to inform the tenant of the outcome. Such regulations have been made in
the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 (SI
2004/1679).
12. Section 143N of the 1996 Act states that the County Court has jurisdiction “to
determine questions arising”, and “to entertain proceedings brought”, under, inter alia,
sections 143B-143F, even if the only relief sought is a declaration.
13. The procedures of the demoted tenancy regime are closely based on those of a
regime first introduced by Chapter 1 of Part V of the 1996 Act. It enabled a local
authority to grant a tenancy under which a new tenant had a one-year probationary
period before becoming a secure tenant. During that first year the tenancy is an
“introductory tenancy”. The procedure governing the landlord’s right to claim
possession during that probationary period is contained in sections 127, 128, and 129
of the 1996 Act, whose provisions are, mutatis mutandis, virtually identical to sections
143D, 143E, and 143F respectively.
The procedural background to the appeal
14. In November 1978 Manchester City Council (“the Council”) granted Cleveland
Pinnock a tenancy of a house at 65 Meldon Road, Longsight (“the property”), where
he has lived ever since with his partner, Christine Walker, and, from time to time, with
all or some of their five children. In March 2005 the Council applied to the
Manchester County Court for an order for possession of the property, or in the
alternative a demotion order in respect of Mr Pinnock’s secure tenancy. Each of these
claims was based on the contention that all of Mr Pinnock’s children and Ms Walker
(but not Mr Pinnock) had been guilty of serious anti-social behaviour, in breach of the
covenants in Mr Pinnock’s tenancy. The proceedings came before Recorder Scott
Donovan, who heard considerable evidence and argument over a total of six days. In
part, the length of the proceedings was due to the Council amending its case in
relation to the relief it was seeking.
15. The Recorder gave a full judgment on 8 June 2007. He concluded that a large
number of serious allegations against Ms Walker and Mr Pinnock’s children were well
founded. He nevertheless decided that it would be “truly draconian” to make an order
for possession, “bearing in mind the length of the tenancy and Mr Pinnock’s blameless
life looked at from his own lack of direct involvement in criminal activity”. However,
he went on to say that “[a]pplying the criteria of ‘reasonableness’, I am satisfied that a
demotion of tenancy order is the most appropriate order and that compliance with the
order is entirely within Mr Pinnock’s and Christine Walker’s own hands.”
16. The demotion order therefore took effect from 8 June 2007. On 6 June 2008,
the day before the order would effectively have lapsed, the Council served a Notice
under section 143E, which indicated that possession would be sought. The Notice had
the effect – pursuant to section 143B – of prolonging the demoted tenancy, and of
initiating the procedure envisaged in sections 143D, 143E and 143F. The Notice
sought to justify the projected possession proceedings on the ground of further alleged
incidents of anti-social behaviour in the vicinity of the property involving two of Mr
Pinnock’s sons. Mr Pinnock exercised his right to seek a Review, which duly took
place before a panel appointed by the Council (“the Panel”). In its decision of 3 July
2008, the Panel effectively upheld the Notice.
17. The Council then issued a claim for possession which came before His Honour
Judge Holman in the Manchester County Court. After a two-day hearing, the Judge
gave a full judgment on 22 December 2008. The upshot of his decision was that he
made an outright order for possession of the property. Mr Pinnock appealed to the
Court of Appeal, who dismissed his appeal: [2009] EWCA Civ 852. Mr Pinnock now
appeals to this Court.
The issues which arise on this appeal
18. That simple description of the present proceedings rather masks the important
and difficult issues to which they give rise. Those issues are apparent from the clear
and careful judgments of Judge Holman, in the County Court, and of Stanley Burnton
LJ (with whom Mummery and Lloyd LJJ agreed) in the Court of Appeal. Mr Pinnock
wished to challenge the factual basis on which the Council had decided to seek
possession and the Panel had decided to uphold the decision. He also contended that
the making of an order for possession would violate his article 8 Convention rights.
19. Judge Holman concluded that his role in this case was, as he put it, at para 60,
“limited to conducting a conventional judicial review” of the Council’s decision to
bring the possession proceedings, and that his remit did not extend to “resolv[ing]
factual disputes”. In particular, he could not entertain any argument based on article 8.
Having accepted that he could review the Council’s decision to bring and maintain the
possession claim on normal judicial review principles, the Judge concluded that the
Council’s decision to prosecute the claim was rational. He accordingly made an
outright order for possession.
20. Stanley Burnton LJ agreed in the result, but, while largely agreeing with Judge
Holman’s analysis, he thought that the County Court’s role was even more limited. He
said this, [2009] EWCA Civ 852, at para 50:
“Section 143D of the 1996 Act restricts the county court to considering
whether the procedure under sections 143E and 143F has been followed.
If the court concludes the procedure has not been followed, it will not
make an order for possession. If it has been followed, it must make the
order. I emphasise the word procedure. The court’s review is limited to
matters of procedure, and the county court cannot review the substance
or rationality of the landlord’s decision, or whether or not it is consistent
with the tenant’s or other occupiers’ Convention rights.”
Stanley Burnton LJ nonetheless went on, helpfully, to consider whether he would have
agreed with the Judge’s conclusion that the Council’s decision to maintain a claim for
possession was rational. He concluded that it was; indeed he thought that the Judge
had taken rather a restrictive view of the relevant evidence which the Council could
have taken into account.
21. This appeal gives rise to four main issues, of increasing specificity. The first is
whether the jurisprudence of the European Court of Human Rights (“EurCtHR”)
requires that, before making an order for possession of property which consists of a
person’s home pursuant to a claim made by a local authority (or other public
authority), a domestic court should be able to consider the proportionality of evicting
that person from his home under article 8, and, in the process of doing so, to resolve
any relevant factual disputes between the parties. We deal with that question in paras
22-54 below and answer it in the affirmative. The second issue (paras 55-64 below) is
what this conclusion means in practice in relation to claims for possession, and related
claims, in relation to residential property. The third issue (paras 65-107 below) is
whether the demoted tenancy regime in the 1985, 1996 and 2003 Acts can properly be
interpreted so as to comply with the requirements of article 8, or whether at least some
aspects of that regime are incompatible with the occupiers’ article 8 Convention
rights. The fourth issue (paras 108-132 below), which requires a fuller consideration
of the facts of this case, is how the appeal should be disposed of in the light of the
answers on the first three issues.
First issue: what does the Convention require of the courts?
The nature of the issue
22. So far as relevant, article 8 of the Convention provides:
“1. Everyone has the right to respect for … his home… .
2. 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 in the interests of … the economic
well-being of the country, for the prevention of disorder or crime, …or
for the protection of the rights … of others.”
It is also appropriate to refer to article 6, which, so far as relevant, provides:
“In the determination of his civil rights and obligations … everyone is
entitled to a fair … hearing … by an independent and impartial tribunal
established by law.”
23. The argument on behalf of Mr Pinnock is as follows.
(a) At any rate where the person seeking possession is a “public authority”, a
court invited to make an order for possession of a person’s home must be
satisfied that article 8 is complied with.
(b) Accordingly, in the present proceedings, Judge Holman had to satisfy
himself that the order for possession which he was being invited to make
complied with article 8.
(c) Article 8, when read together with article 6, required the Judge, as the
relevant independent tribunal, to be satisfied that the order for possession (i)
would be “in accordance with the law”, and (ii) would be “necessary in a
democratic society” – i e, that it would be proportionate.
(d) The order for possession was “in accordance with the law” since it was
made pursuant to the provisions relating to demoted tenancies in the 1985 and
1996 Acts, which are in principle unobjectionable under article 8.
(e) However, Mr Pinnock was not given the opportunity to raise with the court
the question whether the order for possession was, in all the circumstances of
this case, proportionate. Therefore article 8 was violated.
(f) Further, in order to determine proportionality, the court should have had
power to resolve for itself any issues of fact between the Council and Mr
Pinnock, and to form its own view of proportionality, rather than adopting the
traditional judicial review approach taken by the Judge.
(g) Either the legislation should be interpreted to have the effect contended for
in points (e) and (f), or this court should make a declaration of incompatibility.
24. The issues identified in the argument for Mr Pinnock are by no means novel. It
is therefore necessary for the Court to look briefly at the decisions of the House of
Lords which deal with them and then, in a little more detail, at the relevant decisions
of the EurCtHR.
The House of Lords Cases
25. In three relatively recent cases the House of Lords held that it was not open to a
residential occupier, against whom possession was being sought by a local authority,
to raise a proportionality argument under article 8. In other words, the House rejected
points (e) and (f) in the outline of the argument for Mr Pinnock in para 23 above.
Point (g) therefore did not arise. For this reason, the Court of Appeal and Judge
Holman were bound to come to the conclusions which we have summarised in paras
19 and 20 above.
26. The three decisions of the House of Lords are Harrow London Borough
Council v Qazi [2003] UKHL 43; [2004] 1 AC 983, Kay v Lambeth London Borough
Council [2006] UKHL 10; [2006] 2 AC 465, and Doherty v Birmingham City Council
[2008] UKHL 57; [2009] 1 AC 367. In each of them the defendants were residential
occupiers of properties owned by a local authority, but, for one reason or another, they
were not secure tenants, and, having had any right to continue to occupy the respective
properties brought to an end in accordance with domestic law, they were trespassers.
So, in accordance with domestic law, the defendants could raise no defence to the
local authority’s claim for possession. In each case, however, the defendants
contended that they should be able to rely on the argument that, even though they
were trespassers with no defence to a claim for possession under domestic law, they
had the right to have the proportionality of the loss of their home taken into account
by virtue of their article 8 Convention rights. No disrespect is intended to the
impressive and careful reasoning in those three decisions when we say that, for
present purposes, it is unnecessary to consider them in any detail.
27. In Harrow v Qazi [2004] 1 AC 983 and in Kay v Lambeth [2006] 2 AC 465,
albeit in each case by a bare majority, the House decided that, “a defence which does
not challenge the law under which the possession order is sought as being
incompatible with article 8 but is based only on the occupier’s personal circumstances
should be struck out”: Kay v Lambeth [2006] 2 AC 465, 516-517, para 110, per Lord
Hope of Craighead, with whom Lord Scott of Foscote, Baroness Hale of Richmond
and Lord Brown of Eaton-under-Heywood agreed. This observation applied to claims
against trespassers, just as much as to claims against current or former tenants or
licensees. At the end of the same paragraph Lord Hope explained that, following
Wandsworth London Borough Council v Winder [1985] AC 461, in principle, it would
be open to a defendant “to challenge the decision of a local authority to recover
possession as an improper exercise of its powers at common law” on the traditional
judicial review ground “that it was a decision that no reasonable person would
consider justifiable”.
28. In Doherty v Birmingham [2009] 1 AC 367 the law as stated in para 110 of Kay
was substantially reaffirmed. On the article 8 point Lord Mance, however, dissented,
at para 132, and Lord Walker of Gestingthorpe displayed less than whole-hearted
enthusiasm, at paras 107-108. The law on the judicial review point was affirmed by
Lord Hope, Lord Walker, and Lord Mance, at paras 56, 123 and 157 respectively.
Nevertheless, in the light of the developments in the Strasbourg jurisprudence which
we describe below, the House developed the law by acknowledging that the traditional
approach to judicial review would have to be expanded, particularly to permit the
court to make its own assessment of the relevant facts: [2009] 1 AC 367, especially at
p 416, para 68, per Lord Scott, and at p 443, para 138, per Lord Mance.
29. In both Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465,
Lord Bingham of Cornhill (dissenting along with Lord Steyn in the former case, and
with Lord Nicholls of Birkenhead and Lord Walker in the latter) accepted that it
should be open, as a matter of principle, to a residential occupier, against whom a
local authority is seeking possession, to raise an article 8 proportionality argument
based on the facts of the particular case. However, in Qazi, [2004] 1 AC 983, at para
25, Lord Bingham said that, if this was right, “the occasions on which a court would
be justified in declining to make a possession order would be very highly
exceptional”. He effectively repeated this view in Kay v Lambeth [2006] 2 AC 465,
491-492, para 29, where he suggested that only in “rare and exceptional cases” would
an article 8 proportionality challenge “not be futile”.
The Strasbourg Jurisprudence
30. Mr Pinnock contends that, exceptionally, it is appropriate for this nine-judge
court to depart from the majority view in these cases because there is now a consistent
series of decisions of the EurCtHR which unambiguously supports the minority view
in the earlier House of Lords decisions, and there is no good reason not to follow that
series of decisions. We must therefore examine them.
31. In Connors v United Kingdom (App no 66746/01), 27 May 2004 (2004) 40
EHRR 189, gypsies had initially been permitted to locate their caravan on a piece of
land owned by a local authority, but their right of occupation was brought to an end
because the local authority considered that they were committing a nuisance. The
local authority then successfully brought summary proceedings for possession, on the
ground that they were trespassers and had no right to remain in occupation of the land.
Before the First Section of the EurCtHR the gypsies successfully contended that the
proceedings violated their rights under article 8.
32. Although the local authority’s decision to evict the gypsies was susceptible to
judicial review, the EurCtHR considered, 40 EHRR 189, para 92, that this procedure
was insufficient to satisfy the requirements of article 8 because “the local authority
was not required to establish any substantive justification for evicting [the gypsies],
and on this point judicial review could not provide any opportunity for an examination
of the facts in dispute between the parties.”
33. In a passage, 40 EHRR 189, paras 81-83, which has often been quoted
verbatim in subsequent decisions, the EurCtHR said:
“81. An interference will be considered ‘necessary in a democratic
society’ for a legitimate aim if it answers a ‘pressing social need’ and, in
particular, if it is proportionate to the legitimate aim pursued. While it is
for the national authorities to make the initial assessment of necessity,
the final evaluation as to whether the reasons cited for the interference
are relevant and sufficient remains subject to review by the Court for
conformity with the requirements of the Convention.
82. In this regard, a margin of appreciation must, inevitably, be left to
the national authorities …. This margin will vary according to the nature
of the Convention right in issue, its importance for the individual and
the nature of the activities restricted, as well as the nature of the aim
pursued by the restrictions …. Where general social and economic policy
considerations have arisen in the context of article 8 itself, the scope of
the margin of appreciation depends on the context of the case, with
particular significance attaching to the extent of the intrusion into the
personal sphere of the applicant.
83. The procedural safeguards available to the individual will be
especially material in determining whether the respondent State has,
when fixing the regulatory framework, remained within its margin of
appreciation. In particular, the Court must examine whether the
decision-making process leading to measures of interference was fair
and such as to afford due respect to the interests safeguarded to the
individual by article 8.”
34. In Blečić v Croatia (App no 59532/00), 29 July 2004 (2004) 41 EHRR 185, the
First Section of the EurCtHR held that there had been no violation of the applicant’s
article 8 rights in circumstances where her protected tenancy of her home had been
terminated by the Croatian court on the ground that she had ceased to occupy it for 10
months during 1991-1992. Her case was that it had been her home since 1953, and
that her absence had been attributable to armed conflict in Dalmatia, but it was held
that it had been her “personal decision … to leave”. The EurCtHR said, at 41 EHRR
185, para 65:
“State intervention in socio-economic matters such as housing is often
necessary in securing social justice and public benefit. In this area, the
margin of appreciation available to the State in implementing social and
economic policies is necessarily a wide one. The domestic authorities’
judgment as to what is necessary to achieve the objectives of those
policies should be respected unless that judgment is manifestly without
reasonable foundation. Although this principle was originally set forth in
the context of complaints under article 1 of Protocol No 1 … the State
enjoys an equally wide margin of appreciation as regards respect for the
home in circumstances such as those prevailing in the present case, in
the context of article 8. Thus, the Court will accept the judgment of the
domestic authorities as to what is necessary in a democratic society
unless that judgment is manifestly without reasonable foundation, that
is, unless the measure employed is manifestly disproportionate to the
legitimate aim pursued.”
The case then went to the Grand Chamber, which held that, ratione temporis, the court
had had no jurisdiction to hear it. The Grand Chamber said nothing, however, to cast
doubt on what the First Section had said in the passage which we have quoted: [2006]
ECHR 207.
35. In McCann v United Kingdom (App no 19009/04), 13 May 2008 (2008) 47
EHRR 913 the County Court made an order for possession against a man who
occupied his home as a joint tenant with his estranged wife, on the ground that the
tenancy had been determined by a notice to quit which she had served at the request of
the local authority landlord and without reference to her husband. The EurCtHR
(Fourth Section) rejected the contention that the reasoning in Connors v UK 40 EHRR
189, paras 81-83, was “confined only to cases involving the eviction of gypsies or
cases where the applicant sought to challenge the law itself rather than its application
in his particular case”: 47 EHRR 913, para 50. The court continued:
“The loss of one’s home is the most extreme form of interference with
the right for respect for the home. Any person at risk of an interference
of this magnitude should in principle be able to have the proportionality
of the measure determined by an independent tribunal in the light of the
relevant principles under [article 8], notwithstanding that, under
domestic law, his right of occupation has come to an end.”
36. At para 54, the EurCtHR considered and rejected the contention that “the grant
of the right to the occupier to raise an issue under article 8 would have serious
consequences for the functioning of the system or for the domestic law of landlord and
tenant”, citing and confirming the view of Lord Bingham in Kay v Lambeth [2006] 2
AC 465, 491-492, para 29, to the effect that “only in very exceptional cases” could
“an applicant … succeed in raising an arguable case which would require a court to
examine the issue”. The court also said that “in the great majority of cases, an order
for possession could continue to be made in summary proceedings.”
37. In Ćosić v Croatia (App no 28261/06), 15 January 2009 the Croatian state had
obtained an order evicting the applicant from her home, which she had ceased to have
any right to occupy as a matter of domestic law. After quoting and considering
Connors v UK 40 EHRR 189, paras 81-83, the EurCtHR (First Section) pointed out, at
para 21, that the national courts had based their decision “exclusively on the
[domestic] applicable laws” and had “thus confined themselves to finding that
occupation by the appellant was without legal basis [and] made no further analysis as
to the proportionality of the measure to be applied against the applicant”. The court
immediately went on to say that the Convention required that the eviction order was
“proportionate … to the legitimate aim pursued”, and that “no legal provision of
domestic law should be interpreted and applied in a manner incompatible with
Croatia’s obligations under the Convention”.
38. In paras 22 and 23, the EurCtHR concluded that article 8 had been violated
since “the applicant [had not been] afforded [the] possibility” of having “the
proportionality and reasonableness of the measure [viz, an order of court evicting her
from her home] determined by an independent tribunal in the light of the relevant
principles under article 8 …”.
39. In Zehentner v Austria (App no 20082/02), 16 July 2009 the EurCtHR (First
Section) had to consider the effect of article 8 in the context of an order evicting the
applicant from her home following a “judicial sale”, after the making of the Austrian
equivalent of a charging order. The procedural circumstances were rather unusual, but
the court held, at para 54, that “the judicial sale and the applicant’s eviction are to be
seen as a whole.” Importantly, for present purposes, at paras 52-59, the court
reaffirmed the approach in Connors v UK 40 EHRR 189 and McCann v UK 47 EHRR
913. In particular, the court also stated, at para 59, that a person at risk of eviction
from their home should “be able to have the proportionality of the measure
determined by an independent tribunal in the light of the relevant principles under
article 8.”
40. In Paulić v Croatia (App no 3572/06), 22 October 2009 the EurCtHR (First
Section) cited McCann v UK 47 EHRR 913 and reiterated, at para 43, “that any person
at risk of an interference with his right to home should in principle be able to have the
proportionality and reasonableness of the measure determined by an independent
tribunal … notwithstanding that, under domestic law, he or she has no right to occupy
a flat.” The court went on to explain that this right “does not arise automatically”, but
only if the issue is raised with the court by the person concerned.
41. Finally, there is Kay v United Kingdom (App no 37341/06), 21 September 2010
in which the EurCtHR (Fourth Section) gave its judgment after the conclusion of the
oral argument in this case. We then received written submissions on the decision from
the parties. In that case the application was made to the Strasbourg court by the
unsuccessful appellants in Kay v Lambeth [2006] 2 AC 465. They had no security of
tenure in their homes and their defences to claims for possession brought by the local
authority – based on the contention that it was disproportionate to deprive them of
their homes in the light of article 8 – had been struck out. After carefully considering
the various views expressed in the House of Lords in Kay v Lambeth [2006] 2 AC 465
and Doherty v Birmingham [2009] 1 AC 367, and the relevant decisions of the Court
of Appeal, the EurCtHR stated, at paras 65-68, that the principles laid down in
Connors v UK 40 EHRR 189 and McCann v UK 47 EHRR 913 applied.
42. The EurCtHR then stated, at para 73:
“The Court welcomes the increasing tendency of the domestic courts to
develop and expand conventional judicial review grounds in the light of
article 8. A number of their Lordships in Doherty alluded to the
possibility for challenges on conventional judicial review grounds in
cases such as the applicants’ to encompass more than just traditional
Wednesbury grounds (see Lord Hope at para 55; Lord Scott at paras 70
and 84 to 85; and Lord Mance at paras 133 to 135 of the House of Lords
judgment). However, notwithstanding these developments, the Court
considers that at the time that the applicants’ cases were considered by
the domestic courts, there was an important distinction between the
majority and minority approaches in the House of Lords, as
demonstrated by the opinions in Kay itself. In McCann, the Court agreed
with the minority approach [in Kay v Lambeth [2006] 2 AC 465]
although it noted that, in the great majority of cases, an order for
possession could continue to be made in summary proceedings and that
it would be only in very exceptional cases that an applicant would
succeed in raising an arguable case which would require a court to
examine the issue.”
43. Accordingly, in the next paragraph of its judgment, the EurCtHR concluded:
“In conclusion, the Kay applicants’ challenge to the decision to strike
out their article 8 defences failed because it was not possible at that time
to challenge the decision of a local authority to seek a possession order
on the basis of the alleged disproportionality of that decision in light of
personal circumstances. Accordingly, for the reasons given in McCann,
the Court concludes that the decision by the County Court to strike out
the applicant’s article 8 defences meant that the procedural safeguards
required by article 8 for the assessment of the proportionality of the
interference were not observed. As a result, the applicants were
dispossessed of their homes without any possibility to have the
proportionality of the measure determined by an independent tribunal. It
follows that there has been a violation of article 8 of the Convention in
the instant case.”
44. The EurCtHR was therefore saying that, in so far as the law had subsequently
been developed in Doherty v Birmingham [2009] 1 AC 367, this development could
not be relied on by the United Kingdom in Kay v UK (App no 37341/06).
Conclusion on the first issue
45. From these cases, it is clear that the following propositions are now well
established in the jurisprudence of the EurCtHR:
(a) Any person at risk of being dispossessed of his home at the suit of a local
authority should in principle have the right to raise the question of the
proportionality of the measure, and to have it determined by an independent
tribunal in the light of article 8, even if his right of occupation under domestic
law has come to an end: McCann v UK 47 EHRR 913, para 50; Ćosić v Croatia
(App no 28261/06), para 22; Zehentner v Austria (App no 20082/02), para 59;
Paulić v Croatia (App no 3572/06), para 43, and Kay v UK (App no 37341/06),
paras 73-4.
(b) A judicial procedure which is limited to addressing the proportionality of
the measure through the medium of traditional judicial review (i e, one which
does not permit the court to make its own assessment of the facts in an
appropriate case) is inadequate as it is not appropriate for resolving sensitive
factual issues: Connors v UK 40 EHRR 189, para 92; McCann v UK 47 EHRR
913, para 53; Kay v UK (App no 37341/06), paras 72-73.
(c) Where the measure includes proceedings involving more than one stage, it
is the proceedings as a whole which must be considered in order to see if article
8 has been complied with: Zehentner v Austria (App no 20082/02), para 54.
(d) If the court concludes that it would be disproportionate to evict a person
from his home notwithstanding the fact that he has no domestic right to remain
there, it would be unlawful to evict him so long as the conclusion obtains – for
example, for a specified period, or until a specified event occurs, or a particular
condition is satisfied.
Although it cannot be described as a point of principle, it seems that the EurCtHR has
also franked the view that it will only be in exceptional cases that article 8
proportionality would even arguably give a right to continued possession where the
applicant has no right under domestic law to remain: McCann v UK 47 EHRR 913,
para 54; Kay v UK (App no 37341/06), para 73.
46. We have referred in a little detail to the EurCtHR jurisprudence. This is
because it is important for the Court to emphasise what is now the unambiguous and
consistent approach of the EurCtHR, when we have to consider whether it is
appropriate for this Court to depart from the three decisions of the House of Lords.
47. As we have already explained, the House of Lords decisions have to be seen
against the backdrop of the evolving Strasbourg jurisprudence. So, for instance, the
first of the House of Lords decisions, Harrow v Qazi [2004] 1 AC 983, came before
any of the EurCtHR judgments. Kay v Lambeth [2006] 2 AC 465 was decided after
Connors v UK 40 EHRR 189. But, viewed without the benefit of subsequent EurCtHR
jurisprudence, the reasoning in Connors could have been interpreted as applying only
to gypsies. Indeed one point made on the applicant’s behalf was that gypsies
occupying sites owned by local authorities were not given any rights of security of
tenure, unlike occupiers of flats or houses owned by local authorities, who were
secure tenants. Although McCann v UK 47 EHRR 913 had been decided by the time
of Doherty v Birmingham [2009] 1 AC 367, it would have been inappropriate for a
five-judge court, at least in the particular circumstances, to depart substantially from
the decision of the seven-judge court in Kay. Importantly, the judgments in Ćosić v
Croatia (App no 28261/06), Zehentner v Austria (App no 20082/02), Paulić v Croatia
(App no 3572/06) and Kay v UK (App no 37341/06) were all given after the last of the
three House of Lords decisions.
48. This Court is not bound to follow every decision of the EurCtHR. Not only
would it be impractical to do so: it would sometimes be inappropriate, as it would
destroy the ability of the Court to engage in the constructive dialogue with the
EurCtHR which is of value to the development of Convention law (see e g R v
Horncastle [2009] UKSC 14; [2010] 2 WLR 47). Of course, we should usually follow
a clear and constant line of decisions by the EurCtHR: R (Ullah) v Special Adjudicator
[2004] UKHL 26; [2004] 2 AC 323. But we are not actually bound to do so or (in
theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed
out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA
requires our courts to “take into account” EurCtHR decisions, not necessarily to
follow them. Where, however, there is a clear and constant line of decisions whose
effect is not inconsistent with some fundamental substantive or procedural aspect of
our law, and whose reasoning does not appear to overlook or misunderstand some
argument or point of principle, we consider that it would be wrong for this Court not
to follow that line.
49. In the present case there is no question of the jurisprudence of the EurCtHR
failing to take into account some principle or cutting across our domestic substantive
or procedural law in some fundamental way. That is clear from the minority opinions
in Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, and also
from the fact that our domestic law was already moving in the direction of the
European jurisprudence in Doherty v Birmingham [2009] 1 AC 367. Even before the
decision in Kay v UK (App no 37341/06), we would, in any event, have been of the
opinion that this Court should now accept and apply the minority view of the House of
Lords in those cases. In the light of Kay, that is clearly the right conclusion. Therefore,
if our law is to be compatible with article 8, where a court is asked to make an order
for possession of a person’s home at the suit of a local authority, the court must have
the power to assess the proportionality of making the order, and, in making that
assessment, to resolve any relevant dispute of fact.
50. We emphasise that this conclusion relates to possession proceedings brought by
local authorities. As we pointed out at para 4 above, nothing which we say is intended
to bear on cases where the person seeking the order for possession is a private
landowner. Conflicting views have been expressed both domestically and in
Strasbourg on that situation. In Harrow v Qazi [2004] 1 AC 983 the views of Lord
Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord
Hope, at para 52. In Belchikova v Russia (App no 2408/06, 25 March 2010), the
application was held to be inadmissible, but the EurCtHR (First Section) seems to
have considered that article 8 was relevant, even when the person seeking possession
was a private sector landowner. Presumably, this was on the basis that the court
making the order was itself a public authority. But it is not clear whether the point was
in contention. In the rather older admissibility decision of Di Palma v United Kingdom
(App no 11949/86) (1986) 10 EHRR 149, 155-156, the Commission seems to have
taken a different view, but the point was only very briefly discussed. No doubt, in
such cases article 1 of the First Protocol to the Convention will have a part to play, but
it is preferable for this Court to express no view on the issue until it arises and has to
be determined.
Exceptionality
51. It is necessary to address the proposition that it will only be in “very highly
exceptional cases” that it will be appropriate for the court to consider a proportionality
argument. Such a proposition undoubtedly derives support from the views expressed
by Lord Bingham, and has been referred to with apparent approval by the EurCtHR in
more than one case. Nevertheless, it seems to us to be both unsafe and unhelpful to
invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in
argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord
Walker observed in Doherty v Birmingham [2009] 1 AC 367, para 122, there may be
more cases than the EurCtHR or Lord Bingham supposed where article 8 could
reasonably be invoked by a residential tenant.
52. We would prefer to express the position slightly differently. The question is
always whether the eviction is a proportionate means of achieving a legitimate aim.
Where a person has no right in domestic law to remain in occupation of his home, the
proportionality of making an order for possession at the suit of the local authority will
be supported not merely by the fact that it would serve to vindicate the authority’s
ownership rights. It will also, at least normally, be supported by the fact that it would
enable the authority to comply with its duties in relation to the distribution and
management of its housing stock, including, for example, the fair allocation of its
housing, the redevelopment of the site, the refurbishing of sub-standard
accommodation, the need to move people who are in accommodation that now
exceeds their needs, and the need to move vulnerable people into sheltered or wardenassisted housing. Furthermore, in many cases (such as this appeal) other cogent
reasons, such as the need to remove a source of nuisance to neighbours, may support
the proportionality of dispossessing the occupiers.
53. In this connection, it is right to refer to a point raised by the Secretary of State.
He submitted that a local authority’s aim in wanting possession should be a “given”,
which does not have to be explained or justified in court, so that the court will only be
concerned with the occupiers’ personal circumstances. In our view, there is indeed
force in the point, which finds support in Lord Bingham’s comment in Kay v Lambeth
[2006] 2 AC 465, 491, para 29, that to require the local authority routinely, from the
outset, to plead and prove that the possession order sought is justified would, in the
overwhelming majority of cases, be burdensome and futile. In other words, the fact
that the authority is entitled to possession and should, in the absence of cogent
evidence to the contrary, be assumed to be acting in accordance with its duties, will be
a strong factor in support of the proportionality of making an order for possession.
But, in a particular case, the authority may have what it believes to be particularly
strong or unusual reasons for wanting possession – for example, that the property is
the only occupied part of a site intended for immediate development for community
housing. The authority could rely on that factor, but would have to plead it and adduce
evidence to support it.
54. Unencumbered property rights, even where they are enjoyed by a public body
such as a local authority, are of real weight when it comes to proportionality. So, too,
is the right – indeed the obligation – of a local authority to decide who should occupy
its residential property. As Lord Bingham said in Harrow v Qazi [2004] 1 AC 983,
997, para 25:
“[T]he administration of public housing under various statutory schemes
is entrusted to local housing authorities. It is not for the court to secondguess allocation decisions. The Strasbourg authorities have adopted a
very pragmatic and realistic approach to the issue of justification.”
Therefore, in virtually every case where a residential occupier has no contractual or
statutory protection, and the local authority is entitled to possession as a matter of
domestic law, there will be a very strong case for saying that making an order for
possession would be proportionate. However, in some cases there may be factors
which would tell the other way.
Second issue: the application of this conclusion in general
55. The conclusion that, before making an order for possession, the court must be
able to decide not only that the order would be justified under domestic law, but also
that it would be proportionate under article 8(2) to make the order, presents no
difficulties of principle or practice in relation to secure tenancies. As explained above,
no order for possession can be made against a secure tenant unless, inter alia, it is
reasonable to make the order. Any factor which has to be taken into account, or any
dispute of fact which has to be resolved, for the purpose of assessing proportionality
under article 8(2), would have to be taken into account or resolved for the purpose of
assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that
section, like proportionality under article 8(2), requires the court to consider whether
to order possession at all, and, if so, whether to make an outright order rather than a
suspended order, and, if so, whether to direct that the outright order should not take
effect for a significant time.
56. Moreover, reasonableness involves the trial judge “tak[ing] into account all the
relevant circumstances … in … a broad common-sense way”: Cumming v Danson
[1942] 2 All ER 653, 655, per Lord Greene MR. It therefore seems highly unlikely, as
a practical matter, that it could be reasonable for a court to make an order for
possession in circumstances in which it would be disproportionate to do so under
article 8.
57. The implications of article 8 being potentially in play are much more
significant where a local authority is seeking possession of a person’s home in
circumstances in which domestic law imposes no requirement of reasonableness and
gives an unqualified right to an order for possession. In such a case the court’s
obligation under article 8(2), to consider the proportionality of making the order
sought, does represent a potential new obstacle to the making of an order for
possession. The wide implications of this obligation will have to be worked out. As in
many situations, that is best left to the good sense and experience of judges sitting in
the County Court.
58. The present appeal involves a type of case which arises relatively rarely,
namely a claim for possession against a demoted tenant, and we heard relatively little
in the submissions about other types of case. When it comes to possession
proceedings, a demoted tenant is unusual in two respects: (a) he has already been the
subject of proceedings which have resulted in the loss of statutory protection, and (b)
he will have been given notice of the grounds on which possession is being sought,
and an opportunity to challenge those grounds.
59. The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ
336, which are due to be heard by this Court later this month, involve possession
orders made in different and more common circumstances, namely the introductory
tenancy regime (under Chapter 1 of Part V of the 1996 Act) and the homelessness
regime (under Part VII of the 1996 Act). Those appeals may therefore provide a more
appropriate vehicle for the giving of general guidance. Moreover, in relation to the
homelessness regime, this Court will be able to consider whether any guidance can
usefully be given to local authorities as to what course to take before seeking
possession in cases where there is no provision for the kind of procedure envisaged in
sections 143E and 143F of the 1996 Act. In the light of our decision in the present
appeal the lawyers preparing for those appeals will have the opportunity to give
particular attention to these aspects of the matter.
60. Nevertheless, certain general points can be made, even at this stage.
61. First, it is only where a person’s “home” is under threat that article 8 comes
into play, and there may be cases where it is open to argument whether the premises
involved are the defendant’s home (e g where very short-term accommodation has
been provided). Secondly, as a general rule, article 8 need only be considered by the
court if it is raised in the proceedings by or on behalf of the residential occupier.
Thirdly, if an article 8 point is raised, the court should initially consider it summarily,
and if, as will no doubt often be the case, the court is satisfied that, even if the facts
relied on are made out, the point would not succeed, it should be dismissed. Only if
the court is satisfied that it could affect the order that the court might make should the
point be further entertained.
62. Fourthly, if domestic law justifies an outright order for possession, the effect of
article 8 may, albeit in exceptional cases, justify (in ascending order of effect)
granting an extended period for possession, suspending the order for possession on the
happening of an event, or even refusing an order altogether.
63. Fifthly, the conclusion that the court must have the ability to assess the article 8
proportionality of making a possession order in respect of a person’s home may
require certain statutory and procedural provisions to be revisited. For example,
section 89 of the 1980 Act limits the period for which a possession order can be
postponed to 14 days, or, in cases of “exceptional hardship”, 42 days. And some of the
provisions of CPR 55, which appear to mandate a summary procedure in some types
of possession claim, may present difficulties in relation to cases where article 8 claims
are raised. Again, we say no more on the point, since these aspects were not canvassed
on the present appeal to any significant extent, save in relation to the legislation on
demoted tenancies which we are about to discuss under the third issue.
64. Sixthly, the suggestions put forward on behalf of the Equality and Human
Rights Commission, that proportionality is more likely to be a relevant issue “in
respect of occupants who are vulnerable as a result of mental illness, physical or
learning disability, poor health or frailty”, and that “the issue may also require the
local authority to explain why they are not securing alternative accommodation in
such cases” seem to us well made.
Third issue: the application of this conclusion to demoted tenancies
Introductory
65. As explained above, where an order for possession is made against a demoted
tenant, such as Mr Pinnock, the court is involved at two different stages. The first
stage, which arises if the landlord decides to apply for a demotion order, requires the
court to decide whether to make such an order. The second stage, which arises if the
landlord decides to make an application for an order for possession while the
demotion order applies, requires the court to decide whether to make an order for
possession. Each stage involves a significant and direct assault on the tenant’s right to
occupy his home, and therefore engages article 8.
66. So far as the first stage is concerned, before making a demotion order, the court
must consider for itself the factual basis for making such an order. Moreover, the court
can only make such an order once it is satisfied (a) that the facts which it investigates
and determines justify the order under section 82A(4)(a), and (b) that it is reasonable
to make the order under section 82A(4)(b). I therefore find it impossible to conceive
of circumstances where the requirements of article 8 would not be satisfied by the
plain words of the relevant statutory provisions.
67. Greater problems arise, however, when one turns to the second stage where, as
in this case, the court is asked to make an order for possession against a demoted
tenant.
The proper interpretation of section 143D(2) of the 1996 Act
68. The first argument raised against the conclusion that the County Court judge
who is asked to make an order for possession under section 143D(2) can carry out his
own article 8 assessment of the proportionality of making such an order arises from
the wording of the sub-section. We have quoted it at para 10 above. The provision
requires the court to make an order for possession, “unless it thinks that the procedure
under sections 143E and 143F has not been followed.” If one construes that section in
accordance with the traditional approach to interpretation, it is hard to see how the
court could have the power either to investigate for itself the facts relied on to justify
the decision to seek possession, or to refuse to make an order for possession if it
considered that it would be disproportionate to do so.
69. Therefore there is obvious force in the point that, in the absence of any article 8
Convention right, section 143D(2) would limit the court to satisfying itself that the
procedural requirements of sections 143E and 143F had been complied with. Stanley
Burnton LJ took that view in the Court of Appeal. At any rate, absent the HRA, the
purpose of section 143D appears to be to deprive the courts of almost any ability to
stand in the way of a landlord who had decided to seek possession against a demoted
tenant.
70. However, as the Convention requires the court to have the power to consider
the proportionality under article 8 of making a possession order at the instance of a
local authority in respect of a person’s home, the effect of section 3(1) of the HRA is
that section 143D(2) should be read as not excluding that power, if at all possible.
Accordingly, it is necessary to examine the issue rather more critically.
71. Clearly, the local authority, when deciding to bring possession proceedings
against a demoted tenant under section 143E, and any Panel reviewing that decision
under section 143F have a duty in domestic law to act rationally and to investigate the
relevant facts fairly, as well as a duty under article 8 to consider proportionality,
which includes investigating the relevant facts.
72. Rightly, in our view, it is common ground that a court has jurisdiction, under
normal judicial review principles, to satisfy itself that the local authority and Panel
have indeed acted reasonably and have investigated the relevant facts fairly, when
deciding to bring possession proceedings. From this it must follow that any decision
by the local authority to continue possession proceedings is similarly susceptible to
judicial review. At the same time, it is right to emphasise that it would almost always
require a marked change of circumstances following a Panel’s decision to approve the
proceedings, before an attempt could properly be made to judicially review the
continuance of proceedings which were initially justified.
73. In our judgment, once it is accepted that it is open to a demoted tenant to seek
judicial review of a landlord’s decision to bring and continue possession proceedings,
then it inevitably follows that, as a generality, it is open to a tenant to challenge that
decision on the ground that it would be disproportionate and therefore contrary to
article 8. Further, as we saw at paras 31 to 43 above, the EurCtHR jurisprudence
requires the court considering such a challenge to have the power to make its own
assessment of any relevant facts which are in dispute. We have already pointed out, at
para 28 above, that Lord Scott and Lord Mance, in particular, reached this conclusion
in Doherty v Birmingham [2009] 1 AC 367, paras, 68 and 138. The EurCtHR
acknowledged this development in Kay v UK (App no 37341/06), para 73. In these
circumstances we are satisfied that, wherever possible, the traditional review powers
of the court should be expanded so as to permit it to carry out that exercise.
74. In summary. Where it is required in order to give effect to an occupier’s article
8 Convention rights, the court’s powers of review can, in an appropriate case, extend
to reconsidering for itself the facts found by a local authority, or indeed to considering
facts which have arisen since the issue of proceedings, by hearing evidence and
forming its own view.
75. Much the more difficult question, however, is whether it is possible to read and
give effect to section 143D(2) in a way that would permit the County Court judge to
carry out this exercise. As we have pointed out at para 69 above, the purpose of the
subsection appears to be to ensure that the court makes an order for possession in all
cases except where it thinks that the procedure under sections 143E and 143F has not
been followed. In other words, the purpose is to ensure that the court does nothing
more than check whether the procedure has been followed. It could therefore be
argued that holding that the court could assess the proportionality of the local
authority’s decision to bring and to continue the possession proceedings would go
against the whole import of the section and would amount to amending rather than
interpreting it.
76. We have come to the conclusion that we should reject that argument.
77. In our view, if the procedure laid down in section 143E or 143F has not been
lawfully complied with, either because the express requirements of that section have
not been observed or because the rules of natural justice have been infringed, the
tenant should be able to raise that as a defence to a possession claim under section
143D(2). After all, the tenant’s argument in such circumstances would be within the
scope of the ambit of section 143D(2), namely that “the procedure under sections
143E and 143F has not been [lawfully] followed”, since lawfulness must be an
inherent requirement of the procedure. It must equally be open to the court to consider
whether the procedure has been lawfully followed, having regard to the defendant’s
article 8 Convention rights and section 6 of the HRA.
78. This approach is borne out by section 7(1) of the HRA which, so far as
relevant, provides:
“A person who claims that a public authority has acted (or proposes to
act) in a way which is made unlawful by section 6(1) may—
…
(b) rely on the Convention right or rights concerned in any legal
proceedings….”
By virtue of this provision, an occupier who is the defendant in possession
proceedings in the County Court and who claims that it would be incompatible with
his article 8 Convention rights for him to be put out of his home must be able to rely
on those rights in defending those proceedings. This approach fits with the
observation of the EurCtHR in Paulić v Croatia (App no 3572/06), para 43, that the
court need consider proportionality only if it is raised by the person whose article 8
rights are said to be infringed.
79. We therefore consider that section 143D(2) should be read as allowing the
court to exercise the powers which are necessary to consider and, where appropriate,
to give effect to, any article 8 defence which the defendant raises in the possession
proceedings.
80. This approach to the interpretation of section 143D(2) also goes a long way
towards disposing of Mr Arden’s argument that, even if article 8 required this kind of
review, the County Court does not have jurisdiction to carry it out. So, he suggested,
the issue would have to be referred to the High Court, where it would presumably be
assigned to the Administrative Court. In effect, section 7(1)(b) confers the necessary
jurisdiction on County Court judges when it is necessary for them to deal with a
defence which relies on an alleged breach of the defendant’s article 8 Convention
rights.
81. The same conclusion can be justified on the rather wider basis that, where a
tenant contends that the decision of a local authority landlord to issue, or indeed to
continue, possession proceedings can in some way be impugned, the tenant should be
entitled to raise that contention in the possession proceedings themselves, even if they
are in the County Court. This seems to us to follow from the decision of the House of
Lords in Wandsworth v Winder [1985] AC 461, as cited and approved in the present
context in Kay v Lambeth [2006] 2 AC 465, para 110, and again in Doherty v
Birmingham [2009] 1 AC 367, paras 56, 123 and 157 (see para 28 above). This
approach also derives strong support from the observations of Lord Bingham in Kay v
Lambeth [2006] 2 AC 465, para 30.
82. This second reason involves disapproving part of the reasoning of the Court of
Appeal in Manchester City Council v Cochrane [1999] 1 WLR 809, by which,
understandably, the Court of Appeal in this case appears to have regarded itself as
bound. In Manchester City the Court of Appeal held that an introductory tenant could
not raise a defence to a claim for possession when that defence was based on the
contentions that (a) there had been no breaches of the tenancy agreement (the
substantive ground relied on by the Council for bringing the instant proceedings), (b)
the relevant Regulations had not been complied with, and (c) there had been a failure
to comply with the rules of natural justice in the conduct of the review by the Panel.
83. As a result of our conclusion on the first issue on this appeal, article 8 would
require the court to be able to consider the facts, as well as proportionality, for itself.
However, even in the absence of article 8, a court would have had power to consider
whether a reasonable local authority and panel could have reached the conclusion that
such breaches existed. Similarly, a court would have had power to consider whether
the relevant Regulations had been followed, and whether the rules of natural justice
had been followed. The question is whether that court could be the court hearing the
possession claim, given that it is (virtually always) the County Court.
84. In Manchester City [1999] 1 WLR 809, three reasons were given for
concluding that the defences sought to be raised could not be pursued in the County
Court. The first was that section 127(2) of the 1996 Act, which is in similar terms to
section 143D(2), required the court to make an order for possession: [1999] 1 WLR
809, 818G-820B. That is, in substance, the view which we have rejected in paras 76-
79 above.
85. The second reason for the Court of Appeal’s conclusion in Manchester City
was based on the contrast between section 127(2) and section 204 of the 1996 Act, in
Part VII of the 1996 Act which is concerned with homelessness: [1999] 1 WLR 809,
820B-C, 821H-822A.
86. However, like Lord Fraser of Tullybelton in Wandsworth v Winder [1985] AC
461, 510A-B, we would adopt the principle stated by Viscount Simonds in Pyx
Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260, 286,
that a citizen’s “recourse to Her Majesty’s courts for the determination of his rights is
not to be excluded except by clear words.”
87. The third reason for the Court of Appeal’s decision in Manchester City is
discussed at [1999] 1 WLR 809, 820C-821E, and relies on the presumption that
possession claims against demoted tenants could be procedurally derailed if tenants
could raise public law points in the course of the possession proceedings. We do not
consider that this presumption is correct. Indeed, the ability of a tenant to delay
possession proceedings by raising a public law point would be greater if such points
had to be taken in separate proceedings in the High Court.
88. For these reasons we are satisfied that we should apply the approach of the
House of Lords in Wandsworth v Winder [1985] AC 461. This permits us to confirm
our earlier conclusion that section 143D(2) should be read as allowing the County
Court to exercise the powers which are necessary to consider and, where appropriate,
to give effect to, any article 8 defence which the defendant raises in possession
proceedings brought in that court.
Section 17(1)(a) of the Crime and Disorder Act 1998
89. A further difficulty which is said to stand in the way of the conclusion that the
County Court judge can carry out a proportionality exercise is based on section
17(1)(a) of the Crime and Disorder Act 1998 (“section 17”), which provides
“Without prejudice to any other obligation imposed on it, it shall be the
duty of each authority to which this section applies to exercise its
various functions with due regard to the likely effect of the exercise of
those functions on, and the need to do all that it reasonably can to
prevent (a) crime and disorder in its area…”
90. This section, Mr Arden rightly submitted on behalf of the Council, applied
when, inter alia, a local authority was exercising its function as the landlord of its
housing stock. He then went on to submit that the Council’s duty under section 17
could conflict with its duty, by virtue of the occupier’s article 8 Convention rights, to
consider whether it would be proportionate to bring or continue possession
proceedings against him. For instance, bringing such proceedings might be a
reasonable way of preventing crime and disorder in the authority’s area, even though
bringing those proceedings would be disproportionate when viewed in the particular
context of the individual concerned.
91. In our view, this argument is devoid of substance. In the first place, section 17
begins with the qualifying words “Without prejudice to any other obligation imposed
on it…”. Therefore, if the effect of the HRA is to impose an obligation on a local
authority landlord to consider proportionality under article 8 before embarking on
possession proceedings against a demoted tenant, section 17 is not inconsistent with,
and does not undermine, that obligation. As far as the County Court is concerned,
insofar as it is to be treated as reviewing the local authority’s decision to bring
proceedings, the same point applies, and, insofar as it is to be treated as carrying out
its own assessment, nothing in section 17 impinges on it.
92. Secondly, section 17 requires a local authority to exercise its functions, paying
“due regard” to the need to prevent crime and disorder. The section imposes no
absolute obligation on an authority to do everything to reduce crime and disorder,
irrespective of other persons’ rights or of its own other duties – and it would be very
surprising if it did. Accordingly, the furthest this point goes is to suggest that a local
authority, when deciding to bring possession proceedings against a demoted tenant,
should take into account its duty under section 17, as well as the article 8 Convention
rights of the tenant and any other Convention rights that may be in play. That would
also be a factor to be taken into account by the Panel when reviewing the local
authority’s decision. Similarly, it would be a factor for the County Court judge to take
into account when considering whether the local authority had acted proportionately.
Section 6(2) of the Human Rights Act
93. We have concluded that section 143D(2) of the 1996 Act can be read and given
effect compatibly with the article 8 Convention rights of any occupiers of local
authority housing. So no question of the application of section 6(2) of the HRA arises
in that respect.
94. Nor, indeed, did Mr Arden argue that section 6(2) would make it lawful for the
local authority to disregard the occupier’s article 8 Convention rights when deciding
whether to bring possession proceedings against him. On the contrary, it was, rightly,
common ground that a local authority must take into account a demoted tenant’s
article 8 rights when taking possession proceedings under the 1996 Act. The same
applied to a Panel reviewing that decision.
95. But, as is plain from the speeches of Lord Walker and Lord Mance in Doherty
v Birmingham City Council [2009] 1 AC 367, at paras 110-113 and 141-153,
respectively, two passages at paras 86 and 114 in the speech of Lord Hope in Kay v
Lambeth [2006] 2 AC 465, could be interpreted as indicating that section 6(2) did
apply to the local authority’s decision as to whether to bring possession proceedings in
the circumstances of those cases so as to make it lawful for the authority to disregard
the occupiers’ article 8 Convention rights.
96. The absence of any real debate on the point makes the present case an
unsuitable vehicle for any wide-ranging discussion of section 6(2). Nevertheless, we
think it right to confirm that, in our view, the subsection has no application to the
decision of a local authority as to whether to bring or continue possession proceedings
against demoted tenants.
97. Section 6 of the HRA provides:
“(1) It is unlawful for a public authority to act in a way which is
incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary
legislation, the authority could not have acted differently;
or
(b) in the case of one or more provisions of, or made
under, primary legislation which cannot be read or given
effect in a way which is compatible with the Convention
rights, the authority was acting so as to give effect to or
enforce those provisions.”
98. Plainly, subsection (2)(a) applies only where legislation imposes a duty to act.
That provision is not relevant for present purposes since the local authority is under no
statutory duty which would compel it to take possession proceedings against a
demoted tenant.
99. The statutory provision which relates to the bringing of possession proceedings
against demoted tenants is section 143D(1) of the 1996 Act. It provides:
“(1) The landlord may only bring a demoted tenancy to an end by
obtaining—
(a) an order of the court for the possession of the dwellinghouse, and
(b) the execution of the order.”
In addition, as already explained, section 143E provides for the local authority to give
notice of its decision to apply for an order for possession of the tenant’s house.
Section 143F provides for the Panel to review that decision at the request of the
tenant.
100. It does not particularly matter on which of these provisions we choose to
concentrate. But it can be assumed, for the purposes of the argument, that, when a
local authority landlord decides to bring possession proceedings against a demoted
tenant, the authority is “acting so as to give effect to” section 143D(1) within the
meaning of section 6(2) of the HRA.
101. Then the only question is whether section 143D(1) can be given effect in a way
that is compatible with the demoted tenant’s article 8 Convention rights. If so, section
6(2) does not apply. For the reasons which we have already set out in detail, the
answer is that section 143D(1) can unquestionably be given effect in a way that is
compatible with the demoted tenant’s article 8 Convention rights. Most obviously, the
local authority will give effect to section 143D(1) in a way that is compatible with
those rights when it brings proceedings that are proportionate because the demoted
tenant has, for instance, continued to act in a manner that causes a nuisance to his
neighbours. That being so, section 6(2) of the HRA has no application to the decision
of a local authority to bring or continue possession proceedings against a demoted
tenant.
102. In these circumstances, mutatis mutandis, the conclusion of Lord Mance in
Doherty v Birmingham City Council [2009] 1 AC 367, 447, para 153, applies in the
present situation:
“Accordingly, a local authority which fails to take into account
Convention values when deciding whether or not to give any and if so
what length of notice to quit cannot, in my opinion, be said to be ‘acting
so as to give effect to or enforce’ statutory provisions which are
incompatible with the Convention rights.”
103. As the Council accept, the result therefore is that section 6(2) does not make it
lawful for a local authority to fail to consider whether it would be proportionate to
bring or continue such proceedings. The same must apply to a local authority’s
decision to take possession proceedings against other occupiers who are not secure
tenants.
Conclusion on the third issue
104. We are, accordingly, of the view that a County Court judge who is invited to
make an order for possession against a demoted tenant pursuant to section 143D(2)
can consider whether it is proportionate to make the order sought, and can investigate
and determine any issues of fact relevant for the purpose of that exercise. It follows
that the demoted tenancy regime in the 1996 Act is compatible with article 8.
105. Having said that, there are two further points we should make.
106. First, as already observed, there appears to be no express fetter on the nature of
the grounds which a local authority can invoke for seeking possession against a
demoted tenant. It would seem that, as in this case, local authorities seeking
possession against demoted tenants in practice normally rely on repetitions of the type
of incidents which gave rise to the demotion order. It may well be that the nature of
the grounds upon which possession can be sought against demoted tenants is limited
in that way, as a matter of law. However, that would involve implying some sort of
limitation into the statute, as there is no express provision which would prevent a local
authority relying on, say, the fact that it has a more deserving potential occupier of the
premises in question. We say no more on the matter since the point does not arise in
this appeal, and it was not the subject of any argument.
107. Secondly, we have expressed reservations about the view that, in relation to
possession claims generally, article 8 will assist an occupier only in “highly
exceptional” circumstances. However, there are two features of possession claims
under section 143D which enable us to express such a view in relation to these claims.
First, the court will already have decided that it was reasonable (and therefore
proportionate under article 8) to have made the demotion order, largely removing the
tenant’s security of tenure. The court will have done this less than two years (and, no
doubt, in some cases less than one year) before it is being asked to make an order for
possession. The two sets of proceedings must be viewed as a whole for the purposes
of article 8: Zehentner v Austria (App no 20082/02), para 54 (quoted at para 39
above). This highlights the fact that, while article 8 is still engaged at the second,
possession order, stage, it would be difficult for the tenant successfully to invoke it,
given that its requirements had been satisfied at the first, demotion order, stage.
Secondly, as with introductory tenancies, the tenant will have been given the local
authority’s reasons for deciding to seek possession. So he will have had the
opportunity to challenge the decision and to have that challenge considered by the
Panel.
Fourth issue: application of these conclusions to the facts of this case
108. For the reasons already explained, neither Judge Holman nor the Court of
Appeal thought that they had jurisdiction either to consider whether the making of an
order for possession in this case was “necessary in a democratic society” under article
8 (i e, whether it was proportionate to evict Mr Pinnock and Ms Walker from the
property), or to resolve any disputes of fact between the parties in relation to that
issue. As we have concluded that the Judge had jurisdiction to deal with both matters,
there are two alternative courses that we could now take: we could address the
proportionality issue ourselves, or we could remit the issue to the Manchester County
Court.
109. If we can take the former course, we should do so: it is more than three years
since the demotion order was made in respect of Mr Pinnock’s tenancy, and more than
two years since these possession proceedings were started against him. Before they
reached this court, they had already taken up three days of court time (plus the six
hearing days before the Recorder who made the demotion order). However, we can
only determine the issue of article 8 proportionality if we can do so without needing to
hear further evidence.
110. In order to consider which course to take, we must set out the relevant
circumstances in a little more detail.
111. After stating that, as the tenant, he was “responsible for the behaviour of every
person (including children) living in or visiting [his] home”, Mr Pinnock’s tenancy
agreement contained covenants to the effect that neither he nor anyone residing with
him would “cause a nuisance, annoyance or disturbance to any other person” or would
“harass any other person”. Examples were given in the agreement of possible breaches
of these covenants. They included “offensive drunkenness” and “doing anything that
interferes with the peace, comfort or convenience of others.”
112. The events which led the Recorder to conclude that a demotion order was
justified were many and serious. In very summary terms, Anti-Social Behaviour
Injunctions (under section 152 of the 1996 Act) had been granted against Ms Walker
and one of Mr Pinnock’s sons, Clive, in 2003. Ms Walker had gone on to breach the
injunction. Anti-Social Behaviour Orders had been granted against another son,
Devon, in 2002, and against his twin sons, Orreon and Orraine, in 2004. Each of them
had been breached. Further, each of the five children had appeared before the criminal
courts where they had been convicted of a variety of offences, including a racial
Public Order Act offence, driving while disqualified and blackmail. The last of these
involved the obtaining of some £1,000 by repeated, almost daily, threats of violence
against a 16-year-old youth. In a schedule to his judgment, the Recorder listed no
fewer than 32 crimes or serious nuisances which were committed by Ms Walker and
Mr Pinnock’s five children between 1992 and 2006.
113. There are some differences among the allegations relied on by the Council in
its Notice served on 6 June 2008 under section 143E, the allegations relied on by the
Panel which carried out the review pursuant to section 143F, the allegations relied on
by Judge Holman, and the allegations relied on by the Court of Appeal. In our view,
however, the Court of Appeal’s analysis of the relevant allegations was clearly
correct.
114. We would make three comments in relation to that analysis.
115. First, there is nothing in the statutory provisions relating to the demoted
tenancy regime which limits the particular grounds on which a local authority can rely
when deciding to issue possession proceedings against a demoted tenant. Subject to
the possible type of limitation discussed in para 106 above, we see no reason to
restrict those grounds in a particular case, save by reference to rationality in domestic
law and proportionality in the light of the Convention. This view is not based only on
a reluctance to imply words or conditions into statutory provisions. It is also based on
the point that, by demoting a tenancy, a court has decided that the tenant has forfeited
any statutory protection for at least a year, and it seems wrong to imply a degree of
protection back into the statute, unless it is necessary to do so – e g, because the
Convention requires it. We are therefore satisfied that a local authority is not limited
to relying on matters which amount to breaches of the tenancy in question in order to
justify a decision to issue and continue a claim for possession against a demoted
tenant.
116. Secondly, the Panel should be able to take into account all the available
information when it assesses the justification for, and proportionality of, the local
authority issuing a claim for possession against a demoted tenant. It seems obvious
that before the Panel the tenant could raise events that happened after the Notice, and
it is hard to see why the same should not apply to the landlord. In any event, if the
tenant raises his article 8 Convention rights as a defence to possession proceedings,
the court must consider all relevant issues. These must include a matter that arose after
the date of the Notice. We are therefore satisfied that it is open to the Panel and to the
court hearing the possession claim to take into account grounds which are not
contained in the Notice.
117. Thirdly, we can see no reason why the fact that a Notice contains a bad reason
should destroy the landlord’s right to seek possession, unless, for instance, the bad
reason somehow infects the good faith of the landlord.
118. On that basis, the following matters are relied on as supporting the Council’s
decision to bring and maintain the possession proceedings against Mr Pinnock.
119. First, on 22 September 2007, Clive Pinnock resisted arrest at the property and
ran off. In due course he was convicted of resisting or obstructing a constable in the
execution of his duty. Although this conduct was obviously an annoyance for the
police officers involved, there was no evidence that it caused nuisance or annoyance
to neighbours. Therefore it may not have constituted a breach of the tenancy
agreement. Nevertheless, it was plainly relevant to the housing management functions
of the Council. Further, as Stanley Burnton LJ pointed out, this behaviour was
capable of causing nuisance or annoyance to any person.
120. Secondly, Devon Pinnock pleaded guilty to causing death by dangerous
driving, and driving a vehicle while disqualified and uninsured on 18 January 2008. A
young woman died and two others were seriously injured in the incident which
occurred 1.55 miles from the property.
121. It is relevant to mention that Ms Walker blamed the police for the incident and
did not accept that Devon was in any way responsible. As Stanley Burnton LJ said,
this “bore on whether she and Mr Pinnock were able and willing to exercise parental
control over their children who lived at, or visited, the property so as to bring their
anti-social behaviour to an end”.
122. Thirdly, in February 2008, Orreon Pinnock committed a burglary of premises a
few minutes’ walk from the property – an offence which also involved an assault on a
woman. He was convicted of this offence after the service of the Notice, but the Judge
and the Court of Appeal rightly held that this was a relevant factor when deciding
whether to issue and prosecute possession proceedings against Mr Pinnock.
123. Judge Holman thought that the second incident (but only in so far as it involved
Ms Walker blaming the police and excusing Devon) and the third incident could be
relied on by the Council as a ground for justifying its claim for possession against Mr
Pinnock. He therefore concluded, at para 70, that “there was material before the
review panel … entitling it to uphold the decision to terminate”. To much the same
effect, Stanley Burnton LJ said he could “not see any basis for a finding that the
review panel’s decision was one that no reasonable person could consider appropriate,
and if the judge had had jurisdiction to review that decision I would have upheld his
decision to uphold it”: [2009] EWCA Civ 852, para 67.
124. Mr Pinnock’s case is that it would be disproportionate to evict him (now a
pensioner) and Ms Walker (still in employment) from their home of over 30 years,
given that none of their five children lives with them, and that there have been no
further incidents since February 2008. In this connection Mr Drabble QC made a
number of points which he said that the Panel, Judge Holman and the Court of Appeal
had failed to take into account. None of the matters relied on, he said, constituted a
breach of the tenancy agreement. Ms Walker had committed no nuisance, offence or
harassment since 2003, and there was no suggestion that she or Mr Pinnock is likely to
commit any nuisance or crime in the future. As for the children save for Orreon, they
did not reside in the property at the date of the offences relied on. Further, any crime
or nuisance which they might commit in the area in the future could not be attributable
to the tenancy continuing, as they do not live in the property. For the same reason, Mr
Pinnock could not be treated as responsible for their behaviour. Moreover, there was
no evidence that the children were, or would be, particularly drawn to the area by their
parents’ living at the property. In any event, other remedies such as Anti-Social
Behaviour Orders and Injunctions, and orders excluding the children from the area
under section 153C of the 1996 Act, would be more effective deterrents.
125. We see the force of these points. But, unless there is some dispute of fact which
needs to be resolved, we are not persuaded that this is a case where the occupiers of
the property have any real prospect of successfully relying on article 8 proportionality,
or indeed on the contention that the decision of the Council to issue and maintain
possession proceedings against them was unreasonable.
126. The history of crime, nuisance and harassment on the part of those living at the
property in the period leading up to the demotion order made in June 2007 was
extraordinary in its extent and persistence. Were it not for Mr Pinnock being innocent
of any such conduct on his own account, we doubt whether the Recorder would have
thought it right to refuse the Council’s original claim for possession. As it was, he
made it clear that the demotion order represented what was very much a last chance
for Mr Pinnock (and for Ms Walker).
127. Despite this being their last chance, as we have explained, there were incidents
at or near the property. Clive resisted arrest at the property and ran away from the
police (of which he was convicted). Devon caused death by dangerous driving in the
vicinity of the property and then ran away (of which he was convicted). Ms Walker
refused to accept that Devon was in any way responsible for this and, instead, blamed
the police. Orreon committed a burglary near the property (and was later imprisoned).
In short, there were three serious incidents in a year, one in the property, two in its
immediate vicinity. Mr Pinnock’s children were responsible for all of them. Moreover,
there is every sign that Ms Walker, at least, has learnt nothing. All this happened
under the shadow of a demotion order.
128. The argument that none of the children lives in the property any longer is of
scant assistance to Mr Pinnock since his case is that none of them has lived there since
the demotion order was made. Even if that is true, it is clear that the children visit the
property, and, unfortunately, when they do, they appear to commit crimes and make a
nuisance of themselves in the vicinity. Furthermore, there is no guarantee that at least
some of the children will not stay at the property on a temporary, intermittent or
permanent basis. For the Council to evict Mr Pinnock on such grounds may well seem
to him harsh. However, in the light of the history, the demotion order, the interests of
their neighbours, and the Council’s right and duty to manage and allocate its housing
stock, the decision cannot be characterised as unreasonable or disproportionate.
129. If some of the children did in fact live in the property, then Mr Pinnock has
been dishonest, and the Council’s case is even stronger. In this connection it should be
said that there is good reason to think that Devon did live in the property. Mr
Pinnock’s evidence to the Panel was that Devon had moved out about five years
earlier, but that evidence had been given to, and rejected by, the Recorder – not least
because Devon had given the property as his address to the criminal courts in July
2005, June 2006, and March 2007. When he appeared in court on the charge of
causing death by dangerous driving in January 2008, he again gave his address as the
property. The only new evidence before the Panel disputing his residence at the
property was a statement by the mother of his girlfriend. But she, too, said that he had
ceased to live at the property four or five years previously. It is thus hard to see how
any tribunal could conclude that he did not reside there, but, as the Judge said, the
Panel ducked the issue of residence in their written decision.
130. The fact that some (or even all) of the grounds justifying the rationality and
proportionality of the Council’s decision to seek possession may not have involved
any breach of the tenancy agreement does not give rise to a problem. There is no
requirement in the 1996 Act that they should, and, as already mentioned, there is no
warrant for implying any such requirement into the statute. The fact that Mr Pinnock
may not be responsible for the incidents is not of great significance: the order for
possession was not sought or made to punish him. The fact that there may be other
remedies to deal with the children is also of little force: rather than seeking ASBOs or
ASBIs to keep them out of the vicinity, it is scarcely irrational or disproportionate to
decide to remove their parents, whom they undoubtedly visit, even if (which is an
unresolved issue) they do not live with them.
Conclusion
131. In these circumstances, it is unnecessary to remit this case for the question of
proportionality to be determined. The only issues of fact which are in dispute are
whether Devon lived at the property at the time he caused death by dangerous driving
and whether Clive’s resisting his arrest actually caused any nuisance locally. For the
reasons just given in para 128 above, it is unnecessary to decide whether Devon was
living at the property at the relevant time. Equally, it is unnecessary to establish
whether Clive’s action actually resulted in a nuisance: as Stanley Burnton LJ said, it is
sufficient that he resisted arrest and that this could have caused a nuisance.
132. We shall accordingly dismiss the appeal and uphold the order for possession
made against Mr Pinnock, – albeit for reasons that are rather different from those of
Judge Holman and the Court of Appeal. Mr Pinnock is, and was, entitled to an
opportunity of having the proportionality of the measure determined by a court, and, if
necessary for that purpose, of having any relevant issue of fact resolved. That right
was not acknowledged by the courts below (for wholly understandable reasons). We
have, however, afforded him the opportunity to have the proportionality of the
possession order considered. Having considered the issue, we are satisfied that it was
proportionate to make the order, irrespective of the truth relating to the two possible
issues of fact between Mr Pinnock and the Council.
Hilary Term
[2011] UKSC 6
On appeal from: [2009] EWCA Civ 852
JUDGMENT
Manchester City Council (Respondent) v Pinnock
(Appellant) (No. 2)
before
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Mance
Lord Neuberger
Lord Collins
JUDGMENT GIVEN ON
9 February 2011
Heard on 5, 6, 7 and 8 July 2010
Appellant Respondent
Richard Drabble QC Andrew Arden QC
James Stark Jonathan Manning
(Instructed by Platt
Halpern)
(Instructed by Manchester
City Council )
Intervener (Secretary of
State for Communities and
Local Government)
Intervener (Equality and
Human Rights
Commission)
Daniel Stilitz QC Jan Luba QC
Ben Hooper
(Instructed by Treasury
Solicitor)
(Instructed by Equality
and Human Rights
Commission)
Page 2
LORD NEUBERGER
1. Following the handing down of our judgment on 3 November 2010, the
parties have made written submissions on two issues, namely the terms of the
consequential order which the court should make, and the allocation of costs. The
issue relating to the terms of the order gives rise to a point of a little difficulty and
potentially more general application. It therefore seems right to set out our
conclusions and reasons on the two issues in this short further judgment.
Introductory
2. In summary terms, the facts giving rise to the appeal were as follows. Mr
Pinnock was a demoted tenant of residential premises (and therefore had limited
statutory protection), and his landlord, Manchester City Council, applied to the
Manchester County Court for an order for possession against him. In a judgment
given on 22 December 2008, His Honour Judge Holman rejected Mr Pinnock’s
contention that the court had to be satisfied that article 8 of the Convention was
satisfied before making an order for possession, and therefore he did not consider
whether it was proportionate to make an order for possession against Mr Pinnock.
The Judge accordingly made an order requiring Mr Pinnock to deliver up
possession of the premises on 12 January 2009. He also gave Mr Pinnock
permission to appeal, and stayed enforcement of the possession order provided that
the notice of appeal was served by 26 January 2009.
3. Mr Pinnock served a notice of appeal by that date, arguing that the Judge
should have taken into account article 8, and therefore should have considered
whether it was proportionate to order Mr Pinnock to deliver up possession of the
premises. The Court of Appeal rejected his appeal, [2009] EWCA Civ 852; [2010]
1 WLR 713, and Mr Pinnock appealed to the Supreme Court. The Court of Appeal
did not continue the stay imposed by the Judge, but the parties agreed that the
possession order would not be enforced pending the outcome of the appeal to this
court.
4. In our decision, [2010] UKSC 45; [2010] 3 WLR 1441, we held that the
Judge and the Court of Appeal were wrong in taking the view that article 8 could
not be raised by Mr Pinnock, and that, in those circumstances, there were “two
alternative courses that we could … take: we could address the proportionality
issue ourselves, or we could remit the issue to the Manchester County Court” –
[2010] 3 WLR 1441, para 108. We then went on to decide that we would take the
former course, because, for the reasons set out at [2010] 3 WLR 1441, paras 119-
Page 3
124 and 127-130, we were “not persuaded that this is a case where the occupiers of
the property have any real prospect of successfully relying on article 8
proportionality, or indeed on the contention that the decision of the Council to
issue and maintain possession proceedings against them was unreasonable” –
[2010] 3 WLR 1441, para 125.
The form of order
5. At any rate at first sight, the terms of the order we should make seem to
present no problem: the Judge made an order for possession, which the Court of
Appeal upheld, which it can be said we have upheld, albeit for different reasons,
and accordingly we should simply dismiss the appeal. However, the Council
argues that this apparently simple course would produce an unjust result, which
arises form the transitional provisions of the Housing and Regeneration Act 2008.
6. In this case, the order for possession made by Judge Holman took effect on
12 January 2009; under section 143D(3) of the Housing Act 1996 this meant that
Mr Pinnock’s demoted tenancy came to an end on that date. His status thereafter
was that of a tolerated trespasser, as discussed in Austin v Southwark London
Borough Council [2010] UKSC 28, [2010] 3 WLR 144.
7. Section 299 of, and schedule 11 to, the 2008 Act abolished the concept of
tolerated trespass in relation to various types of tenancy, including demoted
tenancies, by providing that, where an order for possession is made, the tenancy
comes to an end on the date that the order is executed rather than (as was
previously the position) the date on which the tenant is to give up possession
pursuant to the order. In the case of demoted tenancies this was achieved by the
insertion of a new subsection (1A) into section 143D of the 1996 Act– see para 13
of schedule 11 to the 2008 Act.
8. These provisions of the 2008 Act, which were prospective in their effect,
came into force on 20 May 2009 (pursuant to article 2 of the Housing and
Regeneration Act 2008 (Commencement No.5) Order 2009 SI 2009/1261), some
eighteen weeks after Judge Holman’s order for possession took effect. If that order
is confirmed, the effect will be, by virtue of paras 16, 19 and 26 of Schedule 11 to
the 2008 Act, that on 20 May 2009, a new demoted tenancy will have been created
in favour of the former tenant and tolerated trespasser. On the basis that that might
indeed prove to be the position, the Council served a notice of proceedings under
section 143E of the 1996 Act, in respect of which Mr Pinnock requested a review
under section 143F (as explained at [2010] 3 WLR 1441, para 11). Further
proceedings on that notice have been adjourned.
Page 4
9. The Council contends that, although it has protected its position if we
simply dismiss Mr Pinnock’s appeal and effectively affirm the orders of the Judge
and the Court of Appeal, it would be “contrary to any rational legal principle” to
require the Council to incur the expense, effort and delay, as well as any possible
uncertainty of outcome, of further possession proceedings against Mr Pinnock
based on his new demoted tenancy, given the procedure that has already been
undertaken, as described in [2010] 3 WLR 1441, paras 14-17.
10. Accordingly, the Council argues that we should vary Judge Holman’s order
to adjust the date on which he is to deliver up possession from 12 January 2009 to
21 May 2009.
11. Mr Pinnock does not challenge this proposal on its merits, but contends
that, for two reasons, we have no jurisdiction to make the variation sought by the
Council. The first reason is said to be that we cannot in 2011 retrospectively
amend Judge Holman’s order, made in December 2008, in order to deprive Mr
Pinnock of a tenancy which statute gave to him on 20 May 2009; the second
reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman
was precluded from making an order for possession which took effect more than
six weeks after 22 December 2008, when he made the order for possession, and we
cannot amend Judge Holman’s order in a way which would mean that, albeit
retrospectively, it would conflict with that provision.
12. Mr Pinnock is right not to challenge the good sense of the Council’s
argument. There may be force in the two technical points that he takes, particularly
the second, but there is no need for us to consider these. The wide terms of Rule
29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of
giving effect to the Council’s justified concerns which is not open to such
objections.
13. We propose to set aside the order for possession made by Judge Holman,
and substitute a fresh order for possession to take effect on 10 March 2011. The
effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which
started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which
has continued pending the resolution of these proceedings. It will come to an end
when possession is obtained against him pursuant to our order for possession.
14. This course is consistent with the reasoning in our judgment. We decided
that the Judge and the Court of Appeal had reached their conclusions on an
erroneous basis, and accordingly we had to make our own assessment as to
whether an order for possession should be made. Thus, we were effectively
overruling the order for possession made and affirmed below, and were concluding
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that we should make our own order for possession. That is well demonstrated by
the passage quoted from [2010] 3 WLR 1441, paras 108 and 125 quoted in para 4
above. If we had taken the course of remitting the case to the County Court, we
would have set aside the original order for possession, and the County Court would
in due course have made a fresh order for possession (for the reasons we gave at
[2010] 3 WLR 1441, paras 119-130): it would be anomalous if a different result
obtained because we decided that we could make the order for possession
ourselves without remitting it.
15. In those circumstances, to set aside the orders below and make our own
order for possession more accurately reflects our reasoning than simply dismissing
Mr Pinnock’s appeal.
16. Quite apart from this, it would seem rather curious if we could not make an
order which achieves the outcome for which the Council contends. If the Judge
had dismissed the claim for possession, and had been upheld in the Court of
Appeal, our decision that an order for possession should be made would have led
to no difficulties for the Council. It would seem a bit odd if the position of the
Council were to be prejudiced by the fact that it in fact succeeded in both of the
courts below.
The costs
17. As to the issue of costs, the dispute, in summary terms, is as follows. The
Council seeks an order for costs against Mr Pinnock, on the ground that, as
between the parties, the ultimate issue was whether the Council was entitled to
claim possession of the premises, and its claim succeeded at every stage, most
importantly in this court. On the other hand, Mr Pinnock argues for an issue-based
approach, contending that the real issue between the parties, which resulted in
most of the costs and justified the case coming to the Supreme Court, was whether
he could rely on article 8, and, as he won on that point, the correct order is that the
Council pays 50% of his costs, at least in the Supreme Court.
18. In our view, there should be no order for costs in the Supreme Court or in
the Court of Appeal, and the order for costs made in favour of the Council in the
County Court should stand. As to the order in the County Court, the Council
claimed possession while Mr Pinnock resisted the claim, and the effect of our
decision is that the claim succeeds, so an order for costs in favour of the Council
should follow, absent a good reason to the contrary, and no such reason appears to
exist. The decision to make no order for costs in the Court of Appeal and in this
court is arrived at on a somewhat rough and ready basis, but it appears to us to
reflect the relative degree of success enjoyed by each party on appeal, and
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therefore the overall justice of the position. The effect of the appeal process is that
the Council has succeeded against Mr Pinnock on the ultimate issue between the
parties, namely whether it is entitled to maintain its right to possession, whereas
Mr Pinnock has succeeded against the Council in establishing a fundamental
general principle, namely that article 8 can be relied on by someone whose home is
the subject of a possession claim.
Conclusion
19. In these circumstances, we set aside the order for possession made by Judge
Holman, we make an order for possession to take effect on 10 March 2011, we
make no order for costs in this court or the Court of Appeal, and the order for costs
made by Judge Holman stands. No doubt the parties can agree any other terms of
the order which are outstanding.
