On 23 February 2011, the Supreme Court handed down judgment in the 3-hander case of Hounslow LBC v Powell, and others  UKSC 8 and looked at the Article 8 defence availability in cases of introductory tenancies and non-secure tenancies following the important decision of Manchester City Council v Pinnock  UKSC 45; (2010) 3 WLR 1441. To say it was eagerly awaited would be overstating it, not least because Pinnock had to a great degree settled a lot of the arguments as to the proper approach to Article 8 in possession claims. The notion that Pinnock was restricted to the demoted tenancy regime considered in that case was always going to be a rather fanciful argument and Lord Hope dismissed the notion as early as paragraph 3 of his leading judgment.
So local housing authorities and most registered providers dealing with any introductory tenancy, demoted tenancy, notice to quit or section 21 starter tenancy possession cases may face Article 8 proportionality challenges, though bear in mind what Lord Hope said at paragraph 33 of his judgment:
33…The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim.
What was more interesting perhaps is the Supreme Court's approach to section 89 of the Housing Act 1980 which, in many of the mandatory possession claims where an Article 8 defence is raised, restricts the date of possession to 14 days or, in exceptional circumstances, up to 6 weeks unless the claim is otherwise dismissed. The argument that this was not compatible with Article 8 or could be interpreted so as to give effect to the Convention in such a way as to allow a longer period was roundly rejected by the Supreme Court (see paragraphs 57 to 64 of Lord Hope's judgment). Lord Hope did however remark:
63. Section 89 of the 1980 Act does not, of course, take away from the court its ordinary powers of case management. It would be perfectly proper for it, for example, to defer making the order for possession pending an appeal or to enable proceedings to be brought in the administrative court which might result in a finding that it was not lawful for a possession order to be made, as was contemplated by the judge in the case of Mr Frisby but is now no longer necessary. An adjournment would also be a permissible exercise of the court’s discretion if more information was needed to enable it to decide what order it should make. But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum.
So what does all this mean for Local Housing Authorities/Registered Providers? To some extent not much has changed, though the section 89 route (i.e. if it were being argued not that the possession claim should be dismissed but that more time was needed and should be given) has been "shut off", which may encourage a greater use of adjournment requests and opposition to the claim itself.
The issue still to be grappled with – perhaps unsurprisingly – is how the county courts are going to deal with this in practice and in particular how they are going to deal with disputes as to fact. Hardwicke were involved in an appeal last Friday where it was argued that the deputy district judge who made a possession order in a starter tenancy section 21 possession claim had not considered proportionality (to be fair the hearing was a couple of weeks before Pinnock). Aside from an argument that the issue had not been raised (and thus need not be considered) the primary submission put forward by Andy Lane from Hardwicke's Social Housing Team was that the "Pinnock 2" approach should be adopted. In other words, the Circuit Judge could consider the case afresh and rather than remit the matter should at most set aside the order and impose a new one. This the Judge agreed to do, further agreeing with the landlord's submissions that he need not determine the questions of fact (i.e. allegations of ASB) as these had been argued before an internal appeal panel, to which no subsequent objection had been raised. Today, Morayo Fagborun Bennett is dealing with an appeal concerning an introductory tenancy case in which the Deputy District Judge refused to adjourn the case to allow a judicial review application to the made. She will argue that the appeal courts should follow paragraph 109 of Pinnock 1 and Pinnock 2 and decide the issue of proportionality rather than remitting the matter back to the first instance judge.
Andy Lane was instructed by Batchelors Solicitors.
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