The following is based on the Supreme Court press summary. Our full case comment is to follow.
The Supreme Court has ruled that Article 8 of the European Convention on Human Rights (the right to family life) requires that a court, when asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order.
The 9-strong court departed from a series of House of Lords (its predecessor’s) decisions in order to follow a strong line of European Court of Human Rights authority (summarised at para 45 of the decision). The judgment was unanimous, and follows the important recent decision of the European court in Kay and Others v United Kingdom (see our post), as well as that in Connors v UK and others. The decision represents a welcome clarification of the rights of council tenants facing eviction, following a long and tortuous line of conflicting decisions from both the UK and European courts.
The court made clear that, in any event, even before the decision in Kay v UK, the justices would have been of the opinion that the Supreme Court should move in the direction of the European Court, as supported by the minority opinion in a number of recent House of Lords cases, as well as the Court of Appeal in Doherty v Birmingham  1 AC 367 .
It emphasised that whilst it was only obligated to “take into account” decisions of the European court, where there is a clear and constant line of decisions ”whose reasoning does not appear to overlook or misunderstand some argument or point of principle” it would be “wrong” for the court not to follow that line .
The Appellant, Cleveland Pinnock, has lived in a property owned by the Respondent local authority, Manchester City Council, for over 30 years with his partner, Ms Walker, and, from time to time, with all or some of their five children. A demotion order was made against him under the provisions of the Anti-Social Behaviour Act 2003, on the basis of a number of incidents of serious anti-social behaviour caused by all members of Mr Pinnock’s family (other than Mr Pinnock himself) at or near the property. A day before the effective lapse of the demoted tenancy, the Council served a notice under section 143E seeking possession of the
Mr Pinnock’s main contention is that the possession order violates his right to respect for his home under Article 8 as it is disproportionate. In view of the previous line of the House of Lords authorities, both the Manchester County Court and the Court of Appeal rejected Mr Pinnock’s article 8 arguments on the basis that it was not open to them to review the Council’s decision on the ground that it was disproportionate.
The Supreme Court disagreed with the courts below, and used the opportunity to significantly bolster the power of council tenants to challenge eviction orders. It stressed, however, that the decision only relates to possession claims by local authorities and not by private landlords. The latter issue will have to be determined when it arises .
Whilst it noted that the appeal involved a comparatively rare type of possession claim, a claim against a demoted tenant, the court was able to make certain general points:
- Article 8 only comes into play where a person’s “home” is involved;
- as a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned;
- any article 8 defence should initially be considered summarily;
- even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether;
- the conclusion that the court must have the ability to consider the article 8 proportionality of making a possession order may require certain statutory and procedural provisions to be revisited; and
- article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or a physical disability.
Unfortunately for Mr Pinnock, the court went on to rule that it was proportionate to evict him and his family from their home, in light of the three serious offences committed by his sons. But whilst this was a defeat for Mr Pinnock, the decision represents a victory for tenants threatened with eviction, who will now be able to request a court to consider the proportionality of their proposed eviction. This will put greater pressure on councils to ensure that their decisions will bear court scrutiny and will probably make it more difficult in general to evict tenants without good cause.
Update, 4 November 2010 - Nearly Legal, a blog written by housing law specialists, has posted a excellent (and very full) analysis of the decision, entitled Brave New World or Same Old Story. The post is written as a conversation between regular Nearly Legal writers, and their conclusions differ slightly. The writer known as ‘Chief’ concludes that whilst this decision is in itself quite limited (‘demoted’ tenancies are relatively rare), the Supreme Court has on its agenda a case which will have a much wider application:
I may be accused of hyperbole in my introduction to this decision. After all, there really aren’t that many demoted tenancies in operation, as the Supreme Court noted at . But the Supreme Court is soon going to be faced with the appeals from Salford v Mullen (our note, with a far better executed Mornington Crescent theme). Although the Supreme Court won’t actually be hearing the appeal in Salford v Mullen in November, it will be hearing the appeals in the cases of Hounslow v Powell, Leeds v Hall and Birmingham v Frisby. The first of those relates to a homelessness non-secure tenancy, while the latter two concern ITs. We all know that there are plenty of people occupying accommodation in those two categories. Given the SC’s decision it can be said that that proportionality is going to have to be imported into those types of cases unless the property in question is not the occupier’s home. This is an argument that LAs may be able to make some headway with in relation to some occupiers, but I suspect not very many.
The discussion on this conclusion between the different writers is worth reading in full, and I do not intend to summarise it here. Their views do not seem to vary too widely though, and agree that this “new broom” approach from the Supreme Court will have wider implications than simply those subject to demoted tenancies, and could ultimately affect private landlords too.
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- Eviction of council tenants was breach of human rights (Kay v UK)
- The Nearly Legal Blog’s analysis of Kay v UK
- Baroness Hale predicts the courts may rule in favour of a human right to a home soon