When eviction breaches human rights
23 February 2011
The Supreme Court has given important guidance as to when eviction from local authority housing amounts to a breach of a tenant’s human rights. It has also confirmed that courts should have the power to consider the proportionality of previously automatic possession orders relating to council properties.
The judgment forms a double act with the recent decision in Manchester City Council (Respondent) v Pinnock (Appellant), a path-breaking ruling in which the Supreme Court held that Article 8 of the European Convention on Human Rights (the right to private and 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 (see Nearly Legal’s excellent discussion of that decision).
The latest ruling relates to two cases which have been heard together. It involves the applicability of article 8 to local authority evictions in two contexts: first, introductory tenancies under the Housing Act 1996, part V and tenancies excluded from security of tenure provisions under the Housing Act 1985, Part IV (rights relating to secure tenants) by para 4 of Sch 1 to that act. For the full background, see the UK Supreme Court Blog’s preview.
As the UK Supreme Court Blog pointed out, the judgment in Pinnock rendered this decision one of clarification. But that clarification is important as the court provided little detail in Pinnock as to how the proportionality exercise would be considered by the lower courts. And, as Nearly Legal pointed out, Pinnock was concerned with a fairly rare “demoted tenancy” held by a small number of people. The types of tenancy in the new decision are much more common.
So, having dealt with the background, what did the court actually decide? The following summary of the decision is based on the court’s press summary (numbers in square brackets relate to paragraphs of the judgment):
The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts.
The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a person’s home under Article 8, the court must be able to consider the proportionality of making the order. 
The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim.
Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock.
The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non-secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. -
On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendant’s Article 8 rights. 
Section 89 of the Housing Act 1980, however, does restrict the court’s discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. 
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