Courts Should Consider the Reasonableness and Proportionality of Evictions from Public Housing

Manchester City Council v Pinnock [2010] UKSC 45 (3 November 2010)

In this decision the UK Supreme Court was required to decide whether art 8 of the European Convention on Human Rights requires a court to consider the reasonableness and proportionality of applications for possession of premises under the Housing Act 1996.

Facts

In November 1978 Mr Pinnock was provided with premises by the Manchester City Council (the Council).  The tenant resided in the premises with his partner and during this period the couple were joined from time to time by their five children.

Pinnock was a secure tenant until an application was made in March 2005 for (1) possession of premises or alternatively, (2) a ‘demotion order.’  The application was based on claims that the tenant’s partner and all of his children had been guilty of serious anti-social behaviour which breached covenants in the tenancy agreement.  It was not alleged that the tenant had been involved in any anti-social behaviour.

After a 6 day hearing, judgment was given on 8 June 2007 and the court issued a ‘demotion order.’  The effect of a demotion order is to streamline any subsequent application for eviction and possession.  The Recorder felt that eviction would not be reasonable in light of the length of the tenancy and the fact that Pinnock had not been involved in committing any of the anti-social behaviour.

On 6 June 2008, the day before the ‘demotion order’ lapsed, the Council served a notice under s 143E which indicated possession of the premises would be sought.  Pinnock sought a review of the decision to seek possession and a review panel upheld the decision.  In December 2008 the County Court upheld the possession application and the Court of Appeal subsequently dismissed Pinnock’s appeal.

Pinnock’s appeal to the Supreme Court contended the making of a possession order would violate his rights under art 8 of the European Convention of Human Rights.  Article 8 of the Convention states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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 Supreme Court held that three main issues arose on appeal:

1. Whether the jurisprudence of the European Court of Human Rights required a domestic court to consider the facts relevant to the proportionality of eviction proceedings under art 8 of the Convention.
2. If the first issue were answered in the affirmative, what were the practical implications for claims for possession?
3. In light of issues 1 and 2, how should this matter be dealt with on the facts?

First issue: what does the Convention require of the courts?

The Supreme Court contrasted recent decisions of the House of Lords (see, eg, Doherty v Birmingham City Council) and the European Court (see, eg, Kay v United Kingdom).  Essentially, the UK courts have held that there are only limited circumstances in which an occupier may raise an art 8 proportionality argument against a local authority.  Notwithstanding the general inability to raise proportionality arguments, the Supreme Court noted that UK courts had acknowledged the need to expand the traditional approach to judicial review so as to permit the court to make its own assessment of the facts.

Of the European Court decisions, the Supreme Court noted certain principles including:

• a person at risk of eviction from home by a local authority should be able to question the proportionality of the eviction (even though there is no right under domestic law to remain);
• judicial review mechanisms to assess proportionality are inadequate to resolve factual issues; and
• where proceedings involve more than one stage, the proceedings as a whole must be considered to ensure art 8 has been complied with.

As to the interplay between decisions of the UK courts and the European Court, the Supreme Court noted that although it is not bound to follow all decisions of the European Court:

Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.

In deciding the first issue, the Supreme Court overturned the historical refusal of UK courts to consider art 8 proportionality arguments, stating ‘the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.’

The Supreme Court also referred to way in which European Court proportionality cases tend to limit the application of art 8 to ‘exceptional cases.’  Although the Supreme Court dismissed this requirement, it made comments which pose significant obstacles for any occupier hoping to succeed with an art 8 proportionality argument.  The court stated that the ‘proportionality’ of making a possession order in favour of a local authority would be supported by the following factors which include the authority’s ownership rights, the authority’s responsibility to distribute and manage housing stock (including fair allocation, redevelopment, refurbishment, moving people with housing excess to their needs) and the need to remove a source of nuisance.

Second issue: the application of this conclusion

The Supreme Court noted that where an application for possession is made against a ‘demoted tenant’ that (a) he or she has already been the subject of proceedings which removed security of tenure and (b) he or she will have been given notice of the grounds on which possession is sought.  In addition to these comments, the court noted that art 8:

• Only applies to premises that are a defendant’s ‘home’.
• Need only be considered by a court where it is raised in proceedings by the occupier.
• Will generally be dealt with summarily by courts where ‘as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed.’
• Where established, may in exceptional circumstances require (in ascending order) the granting of an extended period for possession, suspension of a possession order or even refusing an order.  It is worth noting the inclusion of an ‘exceptional circumstances’ criterion after this requirement was excluded by the court in discussion of issue one.
• May require certain statutory and procedural provisions to be revisited.
• Will be particularly significant where the facts include issues of mental illness, physical or learning disability, poor health or frailty.

Third issue: application of these conclusions to the facts

In considering the third issue, the Supreme Court made a more detailed examination of the facts.  Reference was made to numerous Anti-Social Behaviour Injunctions and breaches involving members of Pinnock’s family.  It was noted that between 1992 and 2006, each of the five children had appeared before criminal courts a total of 32 crimes for serious nuisances including convictions for a variety of offences including a racial Public Order Act offence, driving while disqualified and blackmail.  Of all these alleged acts of anti-social behaviour, the following specific incidents supported the local authority’s application for possession:

• On 22 September 2007, Clive Pinnock resisted arrest at the property and ran off.  Although Clive was subsequently convicted of resisting or obstructing police, there was no evidence he caused nuisance or annoyance to neighbours.
• On 18 January 2008, Devon Pinnock pleaded guilty to causing death by dangerous driving while disqualified and uninsured.  This incident occurred 1.55 miles from the property.
• In February 2008, Orreon Pinnock was convicted of burglary and assault.  This incident occurred in the vicinity of the rented premises.

In this case the Supreme Court held it was unnecessary for the question of proportionality to be considered notwithstanding that the alleged anti-social behaviour (1) did not occur at the premises, (2) did not involve complaints from neighbouring tenants, and (3) did not involve the tenant, Pinnock.  In response to arguments by Pinnock based on the incidents, the court noted: ‘The fact that some (or even all) of the grounds justifying the rationality and proportionality of the Council’s decision to seek possession may not have involved any breach of the tenancy agreement does not give rise to a problem... The fact there may be other remedies to deal with the children is also of little force: rather than seeking ASBOs or ASBIs to keep them out of the vicinity, it is scarcely irrational or disproportionate to decide to remove their parents, whom they undoubtedly visit, even if (which is an unresolved issue) they do not live with them.’

The Supreme Court therefore granted the possession order.

Relevance to the Victorian Charter

On 18 November 2010 the Victorian Court of Appeal heard argument in the matter of Director of Housing v Sudi [2010] VCAT 328.  In many ways, the Sudi decision reflects the debate in Pinnock as to the ability to raise human rights issues before ‘first instance’ decision makers.  In this Victorian case a major issue was the jurisdiction of the Victorian Civil and Administrative Tribunal to hear matters under the Charter of Human Rights and Responsibilities Act 2006.

During argument in Sudi, there was extensive reference to the Pinnock decision.  The Director of Housing (the applicant) argued this case could be distinguished on the basis of limitations in the Charter when compared with of s 7(1)(b) of the UK Human Rights Act 1998 which suggests that ‘unlawfulness’ by a public authority can be relied on in ‘any legal proceedings.’  On the other hand, the respondent indicated that the Supreme Court had independently found that art 8 proportionality arguments could be considered by courts and that s 7(1)(b) was only referred to on an ancillary basis.

When Sudi was decided in the first instance, Bell J noted that if VCAT did not have jurisdiction to consider Charter issues, the tenant would need to proceed to the Supreme Court by way of judicial review.  It is hard not to agree that ‘[f]rom the point of view of ensuring equal access to justice, which is an important value and purpose of the Charter, this would be a bad outcome.’  These sentiments are reflected in decisions such as Connors v UK and Kay v UK where the European Court has clearly held that traditional judicial review is not appropriate for a proportionality assessment involving factual issues.  So too in Pinnock where the Supreme Court referred to the issue of delay in litigating human rights issues and to ‘the presumption that possession claims against demoted tenants could be procedurally derailed if tenants could raise public law points in the course of the possession proceedings.’  The court was unequivocal in its response to these concerns, stating: ‘We do not consider that this presumption is correct.  Indeed, the ability of a tenant to delay possession proceedings by raising a public law point would be greater if such points had to be taken in separate proceedings in the High Court.’

The contextual parliamentary materials surrounding the Charter are largely silent on the issue of whether the drafters intended that human rights issues could be raised by individuals at VCAT.  The decisions of Pinnock and the European Court clearly favour the ability to litigate human rights issues in the first instance and such an approach provides major benefits for access to justice by disadvantaged and vulnerable tenants.

Chris Povey is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic