In Manchester City Council v Pinnock, the Supreme Court held that Mr Pinnock was entitled to raise as a defence, Article 8 of the European Convention of Human Rights (Convention) arguments of proportionality. He was also entitled to have an opportunity of having the proportionality of a decision to take possession proceedings in respect of his demoted tenancy considered by a county court judge. This would include having any relevant issue of fact resolved.
What is a demoted tenancy?
Section 82A of the Housing Act 1985 (which applies to local authorities) and Section 6A of the Housing Act 1988 (which applies to social landlords) gives a court the power to make a Demotion Order in respect of a secured and assured tenancy.
As this case related to a Demotion Order obtained on behalf of a local authority, the Supreme Court judgment focused on Section 82A of the Housing Act 1985. Arguably this decision also applies to Section 6A of the Housing Act 1988.
A Demotion Order results in a tenancy ceasing to be a secure tenancy and becoming instead an assured shorthold tenancy. Section 82A(4) of the Housing Act 1985 states that such an order may only be made if:
- The tenant (or someone living with him) has engaged or has threatened to engage in:
- Housing related antisocial conduct (as defined in Section 153A of the Housing Act 1996(1996 Act)); or
- Conduct which consists of or involves using the "premises for unlawful purposes" as explained in Section 153B of the 1996 Act.
- 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.
By sub section 1 of Section 143D of the 1996 Act (Section 143D) a landlord can only bring a demoted tenancy to an end by obtaining an order for possession from the court. Section 143D provides:
"The court must make an order for possession unless it thinks that the procedure under Sections 143E and 143F has not been followed."
Section 143E requires that before issuing possession proceedings against a demoted tenant, a local authority landlord must serve a notice informing him of:
- the fact that it has decided to seek possession;
- the reasons why;
- the date after which the proceedings will be issued;
- the tenant's rights to request a review of the landlord's decision (a review); and
- where to get legal advice.
Section 143F of the 1996 Act (Section 143F) entitles the tenant to request a review within 14 days of the notice in which case the local authority landlord is obliged to carry out a review. The review has to comply with the regulations made by the Secretary of State under Section 143F (3) and (4) and the landlord must inform the tenant of the outcome.
Section 143N of the 1996 Act (Section 143N) provides that a county court has jurisdiction to determine questions arising and to entertain proceedings brought under Section 143B-143F even if the only relief sought is a declaration.
The facts in Pinnock
Pinnock was granted a tenancy by Manchester County Council (the council) to occupy property in November 1978, which he occupied with his partner and from time to time, some or all of his five children.
In March 2005, the council applied for an order for possession of the property, or in the alternative a demoted tenancy based on the anti-social behaviour of all of his five children and his partner. There followed a six day hearing after which on 8 June 2007 the judge concluded that many of the allegations were well founded. However, the judge felt that making a possession order would be "truly draconian 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". Applying the criteria of 'reasonableness', the judge ordered a demoted tenancy.
The Demotion Order therefore took effect on 8 June 2007. On 6 June 2008, the day before the Demotion Order would effectively lapse, notice was served by the council under section 143E of the 1996 Act, indicating possession would be sought. The notice had the effect pursuant to section 143B of prolonging the demoted tenancy. It was based on the further anti-social behaviour in the vicinity of the property involving two of Mr Pinnock's children. In accordance with section 143F, Mr Pinnock requested a review, which took place before a panel appointed by the council. The panel decided to uphold the notice on 3 July 2008.
The council issued a claim for possession which was heard by His Honour Judge Holman. After a two day hearing, an order for possession was made on 22 December 2008. Mr Pinnock's appeal to the Court of Appeal was dismissed and he subsequently appealed to the Supreme Court.
What the Supreme Court was asked to consider
The Supreme Court was asked two principal questions:
- Whether Article 8 of the European Convention on Human Rights requires a court, which is being asked to make an order for possession under Section 143D(2) of the 1996 Act against a person occupying premises under a demoted tenancy, to consider whether the order would be necessary in a democratic society; and
- If so, whether Section 143D(2) is compatible with Article 8 of the Convention.
The Supreme Court's decision
In deciding that the answer to both questions was yes, the Supreme Court considered a number of issues including:
- Whether the jurisprudence of the European Court of Human Rights requires, in possession proceedings by a local authority or other public body, that a domestic court should consider the proportionality of evicting a person from his home under Article 8 and in doing so to resolve any relevant factual disputes between the parties. After consideration of recent decisions by the House of Lords (as it then was) the Supreme Court decided that the answer was 'yes'.
The Supreme Court therefore held that for English law 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 power to assess the proportionality of making the order and in making that assessment to resolve any relevant dispute of fact.
- Whether the demoted tenancy regime in the Housing Acts comply with the requirements of Article 8.
The Supreme Court concluded that where a county court judge is invited to make a possession order against a demoted tenant pursuant to Section 143D(2), s/he 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 followed that the demoted tenancy regime in the 1996 Act is compatible with Article 8.
In reaching this decision the Supreme Court considered the fact that a demoted tenancy has a two-stage process. The first stage arises if the landlord decides to apply for a Demoted Order which requires the court to decide whether to make such an order. The court must consider the factual basis for making such an order and can only make the order if it is satisfied that:
- the facts which it investigates and determines justify the order under Section 82(A)(4)(a); and
- that it is reasonable to make the order under Section 82(A)(4)(b).
Therefore at stage 1, the Supreme Court held that the Article 8 requirements would be satisfied by the statutory provisions in place.
The second stage is where the landlord makes an application for possession while the Demotion Order applies, requiring the court to decide whether to make an order for possession.
The Supreme Court considered that section 143(D)(2) would limit a court to satisfying itself that the procedural requirements of Sections 143(E) and 143(F) had been complied with.
However, the Supreme Court also decided that a local authority, when deciding to bring possession proceedings against a demoted tenant under Sectionn143(E), and any panel reviewing that decision under Section 143(F), has a duty in domestic law to act rationally and to investigate the relevant facts fairly. It also has a duty under Article 8 to consider proportionality.
It followed that if the procedure laid down in Section 143(E) or 143(F) had 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 143(D)(2). It also followed that it must be open to a county court to consider whether the procedure has been lawfully followed having regard to a defendant's Article 8 Convention rights and Section 6 of the Human Rights Act 1998.
The Supreme Court therefore held that Section 143(D)(2) should be read as allowing a court to exercise the powers which are necessary to consider and, where appropriate, give effect to any Article 8 defence which a defendant raises in the possession proceedings.
After reaching this conclusion the Supreme Court made the following points:
- It is only in "highly exceptional" circumstances that Article 8 would assist an occupier. The Supreme Court took into account the fact the a court will have already decided that it was reasonable and therefore proportionate under Article 8 to have made the Demoted Order by actually removing the tenant's security of tenure. The court will have done this less than two years or even less than one year before it is being asked to make the order for possession. Therefore, while Article 8 is still engaged at the second stage of the possession order, it would be difficult for a tenant to successfully invoke it, given that its requirements have been satisfied at the first Demotion Order stage.
- A tenant will have been given the local authority's reasons for deciding to seek possession. So, s/he will have had the opportunity to challenge the decision and to have that challenge considered by the panel.
The Supreme Court then decided how the appeal should be disposed of in light of its reasoning above. Having concluded that the county court had jurisdiction to deal with both the proportionality of the decision to evict Mr Pinnock and also to resolve disputes of fact between the parties in relation to that issue, this left the Supreme Court with two choices. This was to either remit it back to the county court or deal with the proportionality issue itself. The Supreme Court, having decided to proceed with the proportionality issue itself, dismissed the appeal and upheld the order for possession against Mr Pinnock.
The Supreme Court is due to hear conjoined appeals in Salford City Council v Mullen (2010) later this month. Those cases relate to possession proceedings in different (not demoted tenancy) and more common circumstances of an introductory tenancy regime and homeless regime. It is hoped more guidance on the general implications of the decision in Pinnock will be known after the decisions in those cases. Nevertheless, the Supreme Court did make the following additional points:
- It is only where a persons home is under threat that Article 8 comes into play (arguably, this may not apply to very short term accommodation provided);
- An Article 8 defence has to be raised in the proceedings for or on behalf of the residential occupier;
- If raised, Article 8 should be considered summarily and dismissed if appropriate;
- In very exceptional cases, the effect of Article 8 may mean extending the period of possession or even refusing an order altogether;
- Requiring a court to assess proportionality, could mean changes to statutory and procedural provisions; and
- The Equality and Human Rights Commission's views that proportionality is more likely to be relevant in respect of occupants who are vulnerable as result of mental illness, physical or learning disabilities, poor health, frailty may also apply.
What a court should be asked to consider in defences relating to proportionality
When raised as a defence, the question a court has to consider is whether the eviction is a proportionate means of achieving a legitimate aim. The proportionality of a decision for an order for possession will be supported by the need to vindicate the local authority's ownership rights. It will also be supported further to enable the authority to comply with its duties in relation to distribution and management of housing stock. This includes, for example, the fair allocation of 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 warden-assisted housing. Furthermore other cogent reasons, such as the need to remove a source of nuisance to neighbours, may also support the proportionality of a decision for a possession order.
Additional observations by the Supreme Court
The Supreme Court made a number of additional and helpful observations that are worth noting, including:
- There is nothing in the statutory provision 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, save for considerations of rationality in domestic law and proportionality in the light of the Convention. The Supreme Court was 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 demoted tenants
- A panel in carrying out a review should be able to take into account all available information when it assesses the justification for and proportionality of the local authority's decision to issue possession proceedings against a demoted tenant. The Supreme Court therefore held that it is open to a panel and to the court hearing the possession claim to take into account grounds which are not contained in the notice where an Article 8 Convention rights defence to the possession proceedings is raised in the county court
- There should be no reason why the fact that a notice contains a bad reason should destroy a landlord's right to seek possession unless, for example, the bad reason somehow infects the good faith of the landlord
The decision in Pinnock applies to local authorities and to other social landlords to the extent they are public authorities under the Human Rights Act 1998. Following the decision in Weaver v London & Quadrant Housing and therefore arguably for now, it includes all registered providers of social housing. The decision does not extend to possession orders if the landowner is a private landowner.
In possession proceedings of a demoted tenancy, the tenant/defendant is entitled to have the proportionality and issues of factual dispute considered by a county court judge. The tenant/defendant must specifically raise the Article 8 right of proportionality in the defence to the possession proceedings. A county court judge should initially consider an Article 8 point raised in a defence summarily. If, as will 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 a court is satisfied that it could affect the order that it might make should the Article 8 point of proportionality be further entertained by the court.
The practical reality is that because a demoted tenancy is a two-stage process (as described above) there will be very few cases where an Article 8 defence will succeed.