PINNOCK, POWELL AND PROPORTIONALITY:
WHAT’S A LANDLORD TO DO NOW?
Peter Marcus, Zenith Chambers
Some legal and practical implications of the rulings in:
Manchester City Council v Pinnock [2010] UKSC 45
and
Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8
Introduction
During the last few months, the UK’s highest court, the Supreme Court, has published judgments in two important
housing-related cases. In both cases, the Law Lords have ruled on much the same issue – whether a tenant can
invoke their human rights to defend – and defeat – “summary possession” action by landlords.
Many, many articles have already been written about this – and yes, this is yet another one! However, my aim here is
to summarise the law, principally for non-lawyer social housing practitioners, and to answer any immediate likely
queries.
I have tried to focus less on the long-term legal implications of these cases – fascinating though lawyers may find
them – and more on the here-and-now practical aspects of what to do about it all on the ground. This involves
summing up two long and learned judgments in very brief terms – apologies to any Law Lords who read this.
As with all aspects of UK law, any ruling from any court is subject to subsequent refinement by cases that follow on.
However, both of these cases were ruled on by more than the usual five judges. In the case of Powell, there were
seven, and there were – very unusually indeed – nine for Pinnock. So these judgments are more than usually immune
from being overturned by the courts, although of course they are susceptible to changes in legislation.
Background – mandatory “summary” possession
The starting point is that, at the moment, there are a number of ways for a public landlord to take possession action
against a tenant without the landlord having to justify its actions in court, or have its possession claim defended on
anything but procedural grounds.
We are not talking here about “normal” possession actions against Secure or Assured tenants via s.8 Housing Act
1988 or s.83 Housing Act 1985. There the court continues to have a discretion not to make a possession order if the
Grounds for Possession cited in the Notice of Seeking Possession are not satisfied, or (even if they are) if the court
thinks it would be unreasonable to do so.
Instead, the kinds of tenancies affected by this legal discussion include:
- Local Authority Demoted tenancies and Introductory Tenancies
- Non-secure tenancies (eg under Homelessness provisions of HA96)
- s.21 Assured Shorthold Tenancies (including RSL Demoted & Starter tenancies)
- Assured Tenancies in relation to mandatory grounds for possession (eg Ground 8)
- any tenancy following expiry of tenant’s Notice to Quit (eg, served by former co-tenant following domestic
violence)
And there are more! In all these situations, legislation tells the courts they have a duty to order mandatory possession;
so long as procedural conditions (notice, warning, review, etc) have been fuflilled, the court MUST grant possession,
and CANNOT therefore:
- list the issue for fully contested trial (with a defence, witness evidence, etc);
- assess the reasonableness or proportionality of the landlord’s possession claim.
What is “Article 8”
Tenants’ lawyers have for many years suggested that mandatory possession – which ignores reasonableness – is an
unlawful interference with the tenant’s rights under Article 8 of the European Convention on Human Rights, which
provides:
Article 8
[THE RIGHT]
1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
[THE QUALIFICATION: PROPORTIONALITY]
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.
The “qualification” to this right means that a public body may lawfully interfere with someone’s Article 8 right (eg, evict
them) if the interference is justified by this section. The European Court of Human Rights in Strasbourg has
1
confirmed that such interference is lawful “if it is proportionate to the legitimate aim pursued”.
However, Strasbourg have more than once concluded that it was unlawful for the UK courts to be completely banned
from being able to consider the proportionality of a decision to evict a tenant in a summary possession case,
2
particularly in relation to the defendant’s personal circumstances.
CASE 1:
Manchester v Pinnock
3
In November 2010, the Supreme Court’s judgment in the case of Manchester City Council v Pinnock finally brought
UK law in line with Strasbourg. In this case a local authority had sought to evict a demoted tenant for the criminal
behaviour of his son.
Although the case involved a local authority, previous case law means that the same principles will apply to RSLs too,
as most of these are now considered to be public bodies.
Exceptionally, nine Law Lords ruled on this case, and equally exceptionally there was just one unified, and highly
readable, final judgment by Lord Neuberger, representing the judgment of the whole court.
Although a much longer article is needed to do true justice to this ruling, in a nutshell it says that:
- some previous House of Lords and other UK judgments are now overruled so as to bring UK law in line with
Strasbourg jurisdiction;
- from now on, even without a “reasonableness” requirement for possession, the court will now have the power
to assess the proportionality of making a possession order and in some cases must do so;
- to be able to do this, the same court will be able to hear a tenant’s defence based on proportionality
arguments. (Previously it would have been necessary to adjourn the possession hearing and start a separate
judicial review in the High Court.)
The Exceptionality of “Disproportionality”
Lord Neuberger stressed that this new possibility of defending a summary possession claim on grounds of lack of
proportionality (an “Article 8 defence”) will be exercised only in highly exceptional circumstances. “In virtually every
case” he ruled, “there will be a very strong case for saying that making an order for possession would be
1
Kay v UK, [2010] ECtHR 1322, 21SEP10 [65]
Kay v UK, [2010] ECtHR 1322, 21SEP10 [74]
3
Manchester City Council v Pinnock [2010] UKSC 45 (03NOV10)
2
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proportionate”. He was happy to leave this discretion to rule out an Article 8 defence “to the good sense and
experience of judges sitting in the County Court” rather than to any higher court.
Summarising the law post-Pinnock with regards to seeking possession of Demoted, Starter, Introductory or
other non-secure or non-assured tenancies:
- Proportionality can only come into play where a person’s home is under threat and where the challenger is the
residential occupier.
- The county court now has jurisdiction to allow an Article 8 defence where it stands a prospect of success, and
is “seriously arguable”
- In other words, a defendant in a summary possession claim has the right to challenge possession on grounds
that the landlord’s action is disproportionate, and can do so (if allowed) by way of a defence to the landlord’s
claim.
- If the issue is raised by the tenant as a possible defence, county court judges must use their discretion to
decide whether a public law defence on Article 8 is “seriously arguable” and stands a prospect of success.
- The court should initially consider this summarily (ie straight away). If hopeless, the possibility of such a
defence should be disallowed, or any defence presented should be dismissed.
- Only after such consideration should a defence be allowed to be filed by the tenant.
- Any such defence filed should be scrutinised by the landlord for a “seriously arguable” point. If none exists, the
landlord can apply to court to have the defence struck out and/or summary judgment entered for the claimant on
the basis that the tenant has no real prospect of successfully defending the case.
- Proportionality is more likely to be a relevant issue in relation to vulnerability, including mental illness.
And throughout, judges should be reminded that Pinnock holds that such a defence is only going to be allowed, let
alone work, in exceptional circumstances. Nothing in any case leading up to or including Pinnock has ever supported
the principle that the merest mention of a public law defence will suffice to halt proceedings until a defence is entered.
CASE 2:
4
Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [“Powell/Hall”] ,
This further judgment was published in late February. It was heard by a 7-judge Supreme Court which had the power
to overrule most previous judgments, but had to abide by Pinnock.
It effectively confirms the law in Pinnock, and extends it to Introductory Tenancies (Hall; Frisby – noise nuisance) and
those housed through a local authority’s homelessness duties (Powell – rent arrears). By extension, the principles
can be used for most non-secure tenancies, although subsequent case law will probably clarify this further.
In short (and the judgment is relatively long), the case confirms Pinnock, in directing that a court should consider
proportionality ONLY IF it has been raised by the occupier and has crossed the “high threshold” of being seriously
5
arguable.
In the highly exceptional cases that qualify, the court then has to ask “is making a possession order a proportionate
means of achieving a legitimate aim”
Lord Hope, in the principal judgment, rules that: “a [public landlord] does not have to plead the precise reasons why it
seeks possession in the particular case, but if an Article 8 defence is raised, it may wish to plead a more precise case
6
in reply.”
4
5
6
Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8
Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8 [33]
Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8 [34]
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On the legal presumption that the landlord’s aim for seeking possession is virtually always legitimate, what constitutes
proportionality will therefore generally rely on the tenant’s personal circumstances, and any factual objections the
tenant has to the process leading up to the possession action.
Again confirming Pinnock, Lord Hope says that only if a defence is advanced that is seriously arguable should the
case must be adjourned for further consideration, and he re-emphasises that “the judge should summarily dismiss any
attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for
advancing this.”
Conclusion
These two powerful new judgments should make public landlords more secure in opposing challenges to
summary possession on the basis of a tenant’s personal circumstances, particularly if the landlord is
confident that they have:
- followed their own (lawful) policies and procedures;
- allowed the tenant sufficient opportunity to make representations on their own behalf throughout the
process (eg in interview, at the review, via legal or other representative);
- kept full records of how they made the decisions leading to taking possession action.
ANALYSIS: SO WHAT SHOULD LANDLORDS NOW DO?
A reasonable public landlord might well react to the last few years of litigation on ITs, Starters, Demoted tenancies
and the like by giving up on the lot of them and just relying on strict enforcement of regular Secure or full Assured
tenancies.
Although understandable, this might be an overreaction. True, many social landlords do feel that demoted tenancies
are a waste of time and have stopped using them. However, Introductory and Starter tenancies are still very common,
and many housing officers say that most possession claims for these tenancies succeed without a hitch, so long as
the landlord can show that they have fairly followed all procedures.
The Supreme Court is clear that any extra work (keeping records, justifying proportionality, etc) resulting from the
requirements of complying with the European Convention on Human Rights should not be so onerous as to impede a
landlord’s right to possession.
On the other hand, sloppy practices and hasty, unrecorded decisions will now actively (and justifiably) invite
challenges that a landlord should justify its actions in seeking summary possession.
What not to say:
In the light of Pinnock, it will be harder than ever for landlords to rely on general slogans or unspecified condemnation
in witness statements and elsewhere (particularly with vulnerable perpetrators) such as:
- “we never move perpetrators”
- “three strikes and you’re out”
- “there was never any point considering mediation with that kind of person”
- “there was no point interviewing the Defendants – they were clearly guilty”
- “we want to send out a message that tenants can’t get away with this sort of behaviour”
- “we are simply fed up with this constant bad behaviour”
The court will be more intolerant of blanket statements and lack of attention to the detail of an individual case in favour
of making a general point.
Proportionality is more likely to be found by :
- “we have tried every other means we can think of to…”
- “every other agency agrees with us that this measure is the only one left to us/likely to work”
- “the tenant’s behaviour is now seriously affecting the lives and health of others”
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Although the Supreme Court emphasises that landlords are not under an obligation in their Particulars of Claim to
offer more details than are generally necessary, it will not hurt to do so if it shows that the landlord has taken the
defendant’s personal circumstances into account in deciding to issue, and continue with, the possession claim.
It is more important than ever for landlords to keep clear records and paper trails of:
- complaints to you by others, and your responses
- internal and external meetings
- interviews with the defendant
- warning letters
- correspondence with relevant agencies, particularly housing benefit
- records of the effects of any complained-of behaviour on victims (sleep, health, distress, etc)
It is more important than ever for landlords to have (and to exhibit!) up-to-date ASB, Rent Collection and
Possession policy and procedure, and
- have read it
- have updated it
- have followed it
Adopt “Proportionality” throughout the possession process
It can only be helpful for later if, covering all stages of a summary possession process – from the Policy, through the
letters and notices, to your particulars of claim, to any review hearing – you have a “statement” or “certificate” of
proportionality. Such a document would help those making the decision at various stages to assess whether the
decision they are making to progress possession proceedings is a proportionate way of achieving a legitimate goal.
For example, in a rent possession hearing, considerations of proportionality may be prompted by queries throughout
such as:
Prior to seeking possession:
-
have we done as much as we can to help the defendant contact relevant agencies, including housing
benefits?
-
have we provided any extra help to the tenant (advice about budgeting?; debt advice services? help with other
benefits? advice on insulation and fuel? etc)
-
have we agreed and/or set the tenant any reasonable conditions which they have not adhered to?
-
have we followed the Pre-Action Protocol?
It can do no harm to summarise such measures in initial pleadings.
Issuing proceedings:
Enclose with the particulars of claim:
-
a pro-forma or properly pleaded document showing how the action is proportionate;
-
by eliminating all options other than possession on the basis of the above measures already taken
-
and by showing the various pressures on the organisation’s housing stock, the need to get rent in, etc.
-
and enclose a copy of the organisation’s relevant policy and procedures;
In court:
Officers and/or lawyers must go to court prepared to answer questions about proportionality. If confident about their
case, a landlord’s officer must be ready and able to justify its actions and to challenge robustly any hint of a tenant
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seeking to file an Article 8 defence.
Even with a 10-minute hearing and an overloaded district judge, any housing officer should attend with a working
knowledge (and preferably a few spare copies) of the Pinnock and Powell/Hall judgments. They should be able to
argue strongly that the onus is very much on the defendant to show that theirs is one of the highly exceptional cases
to be allowed an Article 8 defence.
Ideally the court officer or lawyer should know the file well enough to be able to point to anything raised by the
defendant as something that the landlord has already taken account of.
Keep a careful note of everything said and done at the hearing. If the judge does allow a defence, but has not kept to
the guidance in Pinnock or Powell/Hall, get legal advice on whether an appeal is worthwhile.
How would a landlord best challenge such a defence?
If the judge does allow a defence to be filed by the defendant, the landlord should be ready to challenge it if it lacks
any sign of exceptional “disproportionality”.
Defences which show no reasonable prospect of defending a claim should be struck out, and a landlord ought also to
know whether a case is suitable for a summary judgment application.
Landlords should always file a Reply to a Defence, as this is a (further) chance to plead clear reasons for taking the
decision to claim possession, and will be a chance to answer any claims made in the Defence not already covered by
evidence presented in advance by the landlord in the claim.
Key things to show proof of are:
- the landlord’s procedure
- any lack of specificity in the defence
- relevant references to Pinnock and Powell/Hall, including bringing copies of the cases to court
What if it’s not going your way?
Of course, if the landlord has doubts about the process, and thinks the tenant may have a point, don’t flog a dead
horse. If you know your procedures could have been better, and could do without exposure at a contested trial,
withdraw early before legal costs mount.
On the other hand, if you feel confident in the case, your officer has given the judge all relevant facts, documents and
legal arguments and the judge still rules against you, do not feel afraid to ask for permission to appeal their decision.
This is still relatively new law, and many judges will not yet be entirely familiar with it. Appealing a decision is a way of
clarifying the law, and will help courts understand better the powers and duties that these significant rulings have
given their judges.
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GLOSSARY
HA88
Housing Act 1988
Regulates assured tenancies (almost all housing association tenancies) and
(and assured shorthold – almost all private sector tenancies)
HA85
Housing Act 1985
Regulates secure tenancies (almost all local authority tenancies)
HA96
Housing Act 1996
Contains provisions (which, amongst others,) regulate Demotion, Introductory
Tenancies and various anti-social behaviour tools including ASB Injunctions.
Supreme Court The highest appeal court in the UK. Cases are ruled on usually by five of the
12 law lords. Exceptional cases may be ruled on by seven, or very
exceptionally indeed, by nine law lords.
ECHR
The European Convention on Human Rights
An international treaty dating from 1950, signed up to by the UK as part of its
membership of the Council of Europe (not to be confused with the EU, which
is a wholly different organisation). An individual claiming that a public body
has unlawfully interfered with their human right(s), the person may bring their
claim against their national government before the European Court of Human
Rights in Strasbourg, whose rulings are not binding on national governments,
but by which national governments nonetheless tend to abide.
HRA98
The Human Rights Act 1998
This Act made the European Charter on Human Rights a part of UK law
(rather than just a treaty), and gave public bodies (including UK courts) a duty
to take the Charter into consideration in all their actions.
RSL
Registered Social Landlord – now more accurately called “Registered
Provider of Social Housing”. Used in this article to refer chiefly to housing
associations.
EHRC
Equality and Human Rights Commission (the amalgamation of what used to
be the Equality Commission and the Disability Rights Commission)
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