Courts Should Consider the Proportionality of Evictions from Public Housing – The Sequel to Pinnock

Hounslow London Borough Council v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby [2011] UKSC 8 (23 February 2011) Summary

In Manchester City Council v Pinnock [2010] UKSC 45 (Pinnock) the UK Supreme Court held that a person at risk of eviction from their home by a local authority should be able to question the proportionality of eviction (although there is no right under domestic law to remain in the property); and an independent tribunal should be able to assess proportionality with reference to article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

The Court in Pinnock considered article 8 rights in relation to a “demoted tenancy”. In the current case, the Court had to consider whether proportionality should be assessed where possession is sought against an introductory tenant or a tenant under the homelessness regime (both of which are more common than demoted tenancies).

The Court held that the article 8 proportionality assessment should (in limited circumstances) be carried out in relation to these tenancies and provided some degree of guidance as to when and how the proportionality assessment should be undertaken by lower courts.

Facts

Ms Powell, Mr Frisby and Mr Hall (the Appellants) were each the subject of an application by their local council for possession of the public housing property he/she lived in.

Legislative regime

The most common form of public housing tenancy in the UK is a secure tenancy. Secure tenants must be given notice setting out why possession is sought and the tenant can’t be evicted unless prescribed grounds are established and, in most cases, the court is satisfied that it is reasonable to make the possession order.

Certain types of tenancies are excluded from the secure tenancy regime: introductory tenancies, homelessness licences and demoted tenancies. These forms of lesser tenancies are the result of a deliberate policy by government to set up a hierarchy of secure and insecure tenancies.

The Appellants

Ms Powell was provided with accommodation by Hounslow London Borough Council (Hounslow) under the homelessness regime. She lived there with her four children and her partner. Ms Powell’s housing benefit was suspended on three occasions causing her to fall behind in rent. On the first and second occasions, she was able to catch up; on the third she was issued with a notice to quit and, although her benefit and rental payments resumed, she remained 11 weeks in arrears. Hounslow then applied for possession, relying on the notice to quit it had issued six months earlier in March 2008.

Mr Hall and Mr Frisby were introductory tenants of Leeds City Council (Leeds) and Birmingham City Council (Birmingham) respectively. Both men had been the subject of a number of noise complaints by neighbours and had previously been served with noise abatement notices. After further noise complaints against each, Leeds and Birmingham commenced possession proceedings.

The relevant county court ordered possession against Ms Powell and Mr Hall. The county court dismissed Mr Frisby’s defence but adjourned making a possession order pending an application for judicial review. The Court of Appeal heard the appeals of Ms Powell, Mr Hall and Mr Frisby together in March 2010. It dismissed each of the appeals and upheld the orders for possession.

The Appellants then appealed to the UK Supreme Court.

Decision

“Home” under article 8 of the Convention

The threshold question is whether the property is a person’s “home” for the purposes of article 8(1) of the Convention, which provides that ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

Article 8(2) of the Convention then requires that any interference with this right by a public authority must be pursuant to one or more of the specified legitimate aims (including the “protection of the rights and freedoms of others”) and that it should be a proportionate means of achieving that aim.

The Court accepted that the Appellants had sufficient and continuing links with their premises to establish that it was their home and that article 8 was therefore engaged. Lord Hope commented that this is only likely to be contested where a person has “only recently moved into accommodation on a temporary or precarious basis” (at [33]).

Proportionality

Essentially, the Court was considering when courts can decline to make a possession order despite domestic law conferring an unqualified right to make such an order. Previously, this could happen only via two narrow “gateways” established in Kay v Lambeth London Borough Council [2006] UKHL 10, which did not include where the interference with the person’s home could be shown to be a disproportionate measure.

This position was broadened by Pinnock, based on the clear line of jurisprudence from the European Court of Human Rights that a person at risk of being evicted from his or her home in response to an application by a local authority, should have the right to question the proportionality of that measure and have it determined by an independent tribunal (Pinnock at [45]).

Form and content of the proportionality review required by article 8

The Court reinforced the position in Pinnock that the court will only have to consider the proportionality of a possession order if:

• an article 8 argument is raised by the tenant; and
• the argument crosses the “high threshold” of it being “seriously arguable” that making the possession order was or would be disproportionate. This question will be determined summarily and, if the court is not satisfied that it is seriously arguable that the facts presented by the tenant could affect the order the court might make, the article 8 argument will be dismissed.

Only after this will the court consider whether making an order evicting the tenant is a proportionate means of achieving a legitimate aim; only then will it be necessary for the judge to consider the tenant’s personal circumstances against the aims of the public authority.

Further, as identified in Pinnock (at [52]), public authorities are presumed to apply for possession for the purpose of achieving the following two aims: (a) vindication the authority’s ownership rights; and (b) compliance with the authority’s public duties in relation to management and allocation of housing stock. Together these constitute a legitimate aim for the purposes of article 8(2) of the Convention. The Court reiterated that the legitimacy of a local authority’s aims will be presumed and the local authority will not be required to explain or justify its reasons for seeking possession above these aims.

The court must then weigh up any factual objections raised by the tenant and the tenant’s personal circumstances against these twin-aims.

Statutory interpretation and article 8 compatibility

An article 8 proportionality review was held to apply to both homelessness licences and introductory tenancies. In the case of introductory tenancies, there is an express legislative requirement that, if certain procedural requirements are satisfied, the court must make a possession order (i.e. the court does not have discretion to refuse to make the order).

In considering this legislative limitation, the Court used the same analysis as Pinnock, which found that there is an inherent requirement of lawfulness in the procedure for seeking a possession order and this inherent requirement includes lawfully following procedure with regard to the tenant’s article 8 rights. Therefore, the lack of judicial discretion conferred by the legislation did not prevent tenants from raising article 8 as a defence or a lower court from addressing the issue of proportionality.

In reaching this position, the Court also referred to:

• section 3(1) of the Human Rights Act 1998, which provides that, so far as possible, legislation must be read and given effect in a way that is compatible with Convention rights; and
• section 7(1)(b) of the Human Rights Act 1998, which provides that a person who claims that a public authority has acted incompatibly with a Convention right (and therefore unlawfully), can rely on a Convention right in legal proceedings if he or she was or would be a victim of the unlawful act.

Outcome of Appeals

In light of the decision in Pinnock, Hounslow offered Ms Powell suitable alternative accommodation (still on a non-secure basis) and Leeds offered Mr Hall a secure tenancy of his current property (acknowledging that there had been no recent reports of noise or nuisance).

The Court held that, if Ms Powell had not been offered a property, there may have been grounds to remit the case to the county court for consideration of article 8 proportionality and stated that, because of her homelessness, it would have been preferable to give her an opportunity for the proportionality of the order to be considered in light of her personal circumstances.  However, the Court held that it was not necessary to reach a view on this point. In contrast, the Court held that Mr Hall had not established that it was seriously arguable that the making of the order was disproportionate and stated that, if not for the offer of housing (which made it useless to maintain the possession order), it would have dismissed the appeal.

The Court allowed the appeals of both Ms Powell and Mr Hall and set the possession orders aside.

Birmingham did not extend a settlement offer to Mr Frisby. The Court held that Mr Frisby had not been given an opportunity to present his arguments on proportionality in the county court, but that there was no reason to think that it was seriously arguable that the making of the possession order was disproportionate. Noting that Mr Frisby had not taken advantage of the opportunities for review available to him, the Court dismissed the appeal.

Relevance to the Victorian Charter

The findings of the UK Supreme Court that courts of first instance can consider human rights based arguments are relevant to current debates about the scope of the Victorian Charter.

We are still awaiting a decision from the Victorian Court of Appeal in the appeal of Director of Housing v Sudi [2010] VCAT 328 (31 March 2010), in which a key issue is whether or not the Victorian Civil and Administrative Tribunal has jurisdiction to determine matters under the Victorian Charter.

On a different note, the settlement offers made by Hounslow and Leeds reiterate that justiciable human rights are an important mechanism for alerting public authorities to the hardships of clients and opening the door for negotiated outcomes that meet the needs of both parties. The UK’s secure versus non-secure tenancy structure has the effect of grouping all new, homeless and challenging public housing tenants together and removing certain procedural safeguards for them. The article 8 protections allowed for arguments to be raised about the circumstances relevant to each individual, which is an important avenue to have when advocating for disadvantaged clients, particularly in circumstances where legal protections have been removed.

The decision is at www.bailii.org/uk/cases/UKSC/2011/8.html.

Lucy Adams is a lawyer with the PILCH Homeless Persons Legal Clinic