PINNOCK AND BEYOND
Manchester City Council v Pinnock and Beyond
On 23 February 2011, the Supreme Court gave judgment in the linked cases of London Borough of Hounslow v Powell, Leeds City Council v Hall and Birmingham City Council v Frisby. The judgments in these cases have been eagerly awaited by housing practitioners in the hope that they would clarify the position of the County Court when dealing with summary possession claims following the high profile decision of the Supreme Court in the Manchester City Council v Pinnock late last year.
In Pinnock, the Supreme Court decided that where a court was asked by a local authority or registered provider of social housing to make an order for possession, in order to be compatible with Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the court must be able to assess the proportionality of making the order. Courts already consider proportionality when dealing with secure tenancies and assured tenancies where possession is nearly always sought on discretionary grounds, as no possession will be made unless the court considers it reasonable to make the order. Pinnock extended proportionality to cases where domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession (for example the termination of a demoted, introductory or starter tenancy).
In Pinnock, the Supreme Court not altogether helpfully noted that the obligation to consider the proportionality of making a possession order “does represent a potential new obstacle to the making of an order for possession”. Rather than providing any specific guidance, the Supreme Court stated that “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”.
The linked case of Powell, Hall and Frisby provided the Supreme Court with an opportunity to clarify some aspects of Pinnock and provide guidance as to what matters might raise issues of proportionality. Although the Court did not go as far as setting out detailed guidance, it did confirm the following:
- Where domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession, the court must still consider the issue of proportionality. Pinnock dealt with a demoted tenancy. Mr Hall and Mr Frisby had introductory tenancies. Ms Powell was granted a licence of property under the homelessness regime in Part VII of the Housing Act 1996.
- The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier.
- If the issue of proportionality is raised, the court should initially consider it summarily and if it 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 any issue of proportionality is “seriously arguable” and could affect the order that the court might make should the point be considered further. The threshold for raising an arguable case is a high one, which would succeed in only a small proportion of cases.
- There will be no need, in the overwhelming majority of cases, for the local authority or social landlord to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The local authority or social landlord need not plead the precise reasons why it seeks possession in the particular case. If an Article 8 defence is raised and entertained by the court, it may wish to plead a more precise case in reply.
Despite the guidance provided by the Supreme Court, it does remain to be seen how district judges handle defences of this type and whether they will be used as a delaying tactic by those acting for tenants.
Section 89(1) Housing Act 1980
The Supreme Court was also asked to consider whether the time limits on the stay of an order for possession imposed by section 89(1) of the Housing Act 1980 were incompatible with the concept of proportionality. Section 89(1) provides that were a possession order is made in respect of a non secure tenant, the court may only postpone the order for 14 days or if there appears to be exceptional hardship, for a period of up to six weeks. The court has no power to postpone the possession order for more than six weeks.
The question of whether the Court could allow a longer period, on the grounds of proportionality, was left open in Pinnock. In Powell, Hall and Frisby, the Supreme Court concluded that the long-stop period of six weeks could not be extended, and that this was not incompatible with Article 8. The Court noted in particular that there was no evidence before it to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship.
