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Pinnock, possession claims and proportionality – where are we now?

On Wednesday 3rd November 2010, the Supreme Court handed down judgment in the case of Manchester City Council v Pinnock [2010] UKSC 45.  This briefing note explores the background to and implications of this long-awaited, landmark decision.

The factual backdrop

Mr Pinnock was a formerly secure, demoted tenant, who appealed against an order made under section 143D of the Housing Act 1996 (‘HA 1996’) requiring him to give the local authority possession of his home. 

Section 143D(2) of HA 1996 provides that, “the court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed”. Under sections 143E and 143F of the HA 1996, the landlord must, before issuing possession proceedings against a demoted tenant, serve a notice informing the tenant of, amongst other things, its decision to seek possession of his or her home and its reasons for doing so.  The landlord must carry out a review of its decision if requested to do so by the tenant.

Mr Pinnock had lived in the property in question for over 30 years.  The court had demoted his secure tenancy as a result of his family’s serious anti-social behaviour.  The day before his tenancy was due to revert to being a secure tenancy the local authority had served him with a notice under section 143E HA 1996.  When the local authority’s decision was upheld on review, it issued a claim for possession of Mr Pinnock’s home. 

The claim succeeded in the County Court.  Mr Pinnock’s appeal to the Court of Appeal then failed, the Court finding that the County Court’s jurisdiction was limited to considering whether the procedure prescribed by sections 143E and F of HA 1996 had been followed.  Mr Pinnock duly petitioned the Supreme Court.


The Issues for the Supreme Court

The central issues before the Supreme Court were whether Article 8 of the European Convention on Human Rights (‘ECHR’) required the court to consider the proportionality of evicting a demoted tenant and, if so, whether the statutory provisions governing demoted tenancies, in this case found in HA 1985 and1996, could be construed to comply with the requirements of Article 8 ECHR.  There were, additionally, two further issues (see ¶ 21):

1. the practical implications of the Court’s conclusions for County Court possession claims; and

2. the impact of the Court’s conclusions on Mr Pinnock’s case.


The Judgment in overview

In a judgment delivered by Lord Neuberger, a 9-Justice Supreme Court unanimously dismissed Mr Pinnock’s appeal, albeit for reasons different from those given by the County Court and the Court of Appeal.

In view of the clear jurisprudence of the European Court of Human Rights, affirmed recently in Kay v United Kingdom (37341/06), the Court departed from previous House of Lords authorities, such as Qazi and Doherty, and decided that a court invited to make an order for possession of a person’s home must be able to assess the proportionality of the order and, in doing so, to resolve any factual disputes between the parties (see ¶ 49 and 74).

While the Court acknowledged that Mr Pinnock’s case involved a relatively uncommon type of claim, ie a claim for possession of property held under a demoted tenancy, it was able to make a number general points about the consequences of its decision (see ¶ 61-64):

1. Article 8 ECHR only applies where a person’s “home” is involved.

2. Generally, the County Court will only need to consider the proportionality of a possession order if the occupier raises the issue.

3. In that case, any Article 8 defence should, initially, be considered summarily.  Only if the point raised by the occupier would affect the order made by the court should the point be entertained further.

4. 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.

5. As a consequence of the Court’s decision, certain statutory and procedural provisions might need to be revisited.

6. 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.

The Court concluded that it was possible to interpret section 143D(2) of HA 1996 in such a way as to allow the court to review the proportionality of a decision to seek possession and, if necessary, to make its own assessment of any disputed facts. In particular, it decided that, by section 7(1) of the Human Rights Act 1998, the County Court has jurisdiction to undertake an Article 8 proportionality review (see ¶ 77-80). Consequently, the demoted tenancy regime was ECHR compatible (see ¶ 104).

In light of the above, the Court considered whether it was proportionate to evict Mr Pinnock.  Given the evidence of anti-social behaviour by Mr Pinnock’s sons, the Court concluded that it was proportionate to do so (see ¶ 127-132).
Commentary

Pinnock has proved a landmark decision, with the Supreme Court departing from a long line of House of Lords authorities concerning the extent of the review undertaken by the court in so-called Gateway B defences to possession claims.

While the case concerned a relatively uncommon type of possession claim, it is certain that the impact of Pinnock will be felt well beyond the bounds of the demoted tenancy regime, not just by defining the extent of the review undertaken in Gateway B defences to other mandatory possession claims, but by aiding the development the grounds for judicial review in domestic public law.

Dean Underwood comments:

“In the recent case of Kay v United Kingdom (37341/06) Times October 18 2010, the European Court of Human Rights welcomed what it perceived to be the “increasing tendency of domestic courts to develop and expand conventional judicial review grounds in the light of Article 8 [ECHR].”  The Court’s comment raised no small number of lawyerly eyebrows, as there was little in domestic jurisprudence to warrant the Court’s confidence.  In Pinnock, however, the Supreme Court departed from previous House of Lords authorities, such as Qazi and Doherty, holding for the first time that domestic courts must be able to consider the Article 8 proportionality of a possession order sought by public authority landlords.  The decision will be seen by many as a significant step in the development of common law judicial review and as justification for the confidence expressed by the European Court.”

And what of the decision’s practical consequences?  While a number of issues remain unresolved and await consideration by the Supreme Court in cases such as Mullen v Salford City Council, a number of observations may safely be made.

1. Following Pinnock, the shorthand definition of Gateway B defences as “judicial review plus” appears particularly apt, as they may now include not only traditional judicial review grounds but an Article 8 attack on the proportionality of a possession order. 

2. With the above in mind, there is unlikely to be any let-up in the number of Gateway B defences to possession claims brought by local authorities and registered providers.  Indeed, following Pinnock it is likely that the number of such defences will increase. 

3. However, as a general rule, landlords will not be required to plead their possession claims any differently.  Unless and until a Gateway B defence is raised by the occupier, there will be an assumption that the possession action is proportionate and not Wednesbury unreasonable.

4. Further, the courts will still be expected to consider the proposed defence summarily, at least initially.  Only if it is satisfied that the defence could affect the order made by the court should the court entertain the defence further.

5. Further still, while the Supreme Court rejected previous decisions that Gateway A and B defences would be sustainable only in exceptional circumstances, it indicated nevertheless (at ¶ 52) that, where an occupier has no right in domestic law to remain in occupation of his home, a number of factors will support the conclusion that a possession order would be proportionate, not least the fact that an order would vindicate the landlord’s ownership rights and enable the landlord to comply with its duties in relation to the distribution and management of its housing stock.

6. And the Court endorsed the submissions of the Equality and Human Rights Commission, that proportionality, “… is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”. (See ¶ 64)

7. However, while the above observations might suggest that a successful Gateway B defence will be the exception to the rule and that many will be disposed of quickly, perhaps the most worrying practical consequence of Pinnock for landlords is that an Article 8 proportionality assessment must now enable the court to decide facts in dispute.  In such cases, the summary procedure advocated by the Supreme Court is unlikely to be appropriate and (as in so-called Sheffield v Hopkins proceedings) what is intended to be a swift process may well become protracted and costly.  This might, therefore, cause landlords to try alternative procedures, such as applying to strike out a Gateway B defence or seeking determination of a preliminary issue, in order to avoid a costly trial.  However, the proverb ‘short cuts make for long journeys’ is apposite here: these procedures often do not result in any swifter or less expensive determination of the claim, especially where facts are in dispute.  It remains to be seen, therefore, how the County Courts will deal with the summary process advocated by the Supreme Court and any alternatives adopted by landlords.

8. If evicting the tenant is found to be disproportionate, possession will, as before, be refused or delayed. Rather than break down the analysis and examination of the landlord’s decisions into distinct stages, the Court preferred that there be a review of the whole process at the time raised.

9. And finally, some statutory and regulatory provisions – for example section 89 of the Housing Act 1980 and Part 65 of the Civil Procedure Rules – will need to be “revisited” to give County Courts the necessary procedures and powers to give effect to the Court’s judgment. 

Conclusion

The Court has indicated in Pinnock that more general guidance about so-called Gateway B defences may be forthcoming later this month and thereafter, in cases yet to be decided, such as Mullen.  For the time being, Lord Neuberger expressed his faith in the ability of County Court circuit judges, recorders, district and deputy district judges and in court systems to deal with the issues to which Pinnock gives rise:

“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.”  (¶ 57)

Only time will tell whether this faith is justified, but experience to date has suggested that, at best, it is very much a curate’s egg.