It is now two years since the Supreme Court in Manchester City Council v Pinnock confirmed the court’s power to assess the proportionality of possession orders under Article 8 ECHR, leaving the wider implications to the ‘good sense and experience’ of county court judges.
Unsurprisingly, the appeal courts have been busy, two recent cases of note being Southend-on-Sea BC v Armour and Thurrock BC v West
Mr Armour (Mr A) was the introductory tenant of Southend. During the first three monthsof the tenancy he was verbally abusive to neighbours and staff and had switched on electricity while contractors were working resulting in one suffering a shock. Southend decided to evict, a decision upheld on review.
Between issue of the claim and trial, eleven months elapsed during which there were no further incidents.
Recorder Davies found that Southend had been justified in bringing the claim and at that time it would have been lawful and proportionate. However, Mr A’s subsequent good behaviour was a relevant factor in assessing proportionality at the date of trial and he refused to order possession.
Southend appealed, arguing the judge should have approached her decision on the same basis as it would have been considered at the initial hearing, as Mr A should not gain an advantage from the delay.
The appeal was dismissed. Each case must be considered on its own facts and subsequent behaviour was a relevant consideration. Proportionality was to be considered at the final hearing.
Unsurprisingly, this decision has been criticised. The whole point of the introductory tenancy regime was to empower landlords to act swiftly and effectively against tenants who acted anti-socially during their probation and deny them long term security. Southend had acted entirely without fault and yet Mr A was awarded a secure tenancy by the court.
Shortly afterwards the Court of Appeal gave judgement in Thurrock Borough Council v West, spelling out, in detail, the clear principles to be applied in the county court when dealing with Article 8 defences.
In 1967 W’s grandparents became tenants of T. In 2007 W moved in with his son and his partner. The grandfather died and the tenancy vested solely in the grandmother. She died in 2010. W sought to succeed to the tenancy. As a second succession was precluded under Housing Act 1985, T served a notice to quit and issued possession proceedings. W defended relying on Article 8. Applying Pinnock, DJ Hodges stated :
'19. …exercising the test for proportionality, it seems to me that to evict this small family and this young child from this property to re-house them in another property which is one bedroom smaller, against all the background of the connection would be disproportionate.’
Thurrock’s appeal was successful, the Court of Appeal setting out a series of clear principles to be applied to Article 8 defences, including;
- the threshold is a high one and the circumstances must be exceptional;
- local authorities not the courts are best placed to make management decisions to administer their stock;
- a legal right to possession, aside from Article 8, is a strong factor in support of proportionality, without the need for explanation or justification;
- the court must consider any Article 8 defence on a summary basis at the earliest opportunity. If it does not meet the high threshold it must be dismissed;
- even where an Article 8 defence has been established it will rarely be sufficient to allow someone who has no legal right to remain in a property apart from Article 8 to do so without limitation or condition.
It appears this case will come to characterise the operation of Article 8 defences from now on with the result that they will reduce drastically and/or fall at the first hurdle.