Manchester City Council v Pinnock
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Facts
The
Supreme Court Held
Comment
Facts:
P was a demoted tenant of MCC. MCC had obtained a demotion
order in respect of P’s secure tenancy following a number of
serious allegations against his children. MCC had then
claimed possession following further allegations of anti-social
behaviour by the children.
P argued that an order for
possession would violate his rights under the European Convention
on Human Rights, Article 8 (right to respect for the home).
The court of first instance and the Court of Appeal had agreed that
the order should be made and that the court did not need to
consider whether Article 8 had been complied with.
P contended that although previous
case law (including Qazi v Harrow, Kay v Lambeth LBC and Doherty v
Birmingham CC) had held that a residential occupier could not raise
the issue of proportionality in possession proceedings against a
local authority under Article 8, there was a body of European Court
of Human Rights decision precedents that clearly disagreed with
this view.
Held:
The Supreme Court held:-
1. European Court of Human
Rights case law has clearly established that any person at risk of
being dispossessed of his home at a local authority’s suit should
in principle have the right to question the measure's
proportionality under art.8, even if his right of occupation under
domestic law had ended.
The Landlord’s aim in wanting
possession should be a ‘given’ which does not have to be explained
or justified in court, so that the court will only be concerned
with the occupier’s personal circumstances. In the absence of
cogent evidence to the contrary, it should be assumed that the
authority are acting in accordance with their duties, which would
be a strong factor in support of the proportionality of making an
order.
2. In terms of the wider
implications, more general guidance may be more appropriately given
in the appeal of Salford v Mullen, due to be heard by the Supreme
Court in November 2010.
However, certain general points
could be made: -
(1) It is only when someone’s
“home” is at stake that art.8 comes into play.
(2) Generally, art.8 only
needed to be considered when raised by the occupier
(3) When an art.8 point is
raised the court should initially consider it summarily, and if the
court is satisfied that, as will no doubt often be the case, even
if the facts were established it would still be proportionate to
make a possession order, then it should dismiss the art.8
point;
(4) If domestic law justifies
an outright order for possession, art.8 may justify granting an
extended period of possession, suspending possession conditionally,
or even refusing an order altogether;
(5) Some statutory and
procedural provisions may need to be revisited, such as HA 1980,
s.89 or parts of CPR 55, but the instant case was not the
appropriate one to resolve them;
(6) Proportionality is more
likely to be a relevant consideration where there are issues
relating to vulnerability due to mental illness, physical or
learning disabilities, poor health or frailty, and that the local
authority may have to explain why they are not securing alternative
accommodation.
3. As Article 8 requires the
Court to be able to determine proportionality - and any dispute of
facts relevant to it - traditional grounds of judicial review
should be expanded so as to permit it to carry out that exercise
wherever possible.
4. The local authority was not
limited to relying on matters which amounted to breaches of the
tenancy to justify a decision to issue and continue a claim for
possession against a demoted tenant. The Landlord could also raise
events that happened after service of the notice.
5. The Court noted that the appeal concerned a tenancy granted
by a local authority, but that the judgement would apply equally to
other social landlords to the extent that they are public
authorities under the Human Rights Act 1998. On the other hand, it
was emphasised that nothing was intended to bear on possession
proceedings by a private landlord.
6. On the facts of the case,
the court was satisfied that it was proportionate to make the
order, hence the appeal was dismissed.
Comment:
Whilst this case was concerned with section 143D(2) of the
Housing Act 1996, it has much wider implications. It could result
in a new wave of human rights arguments in defence of possession
claims. In fact, we have already seen this happen within days of
the decision.
However, it should not be
overlooked that the Supreme Court did say that the landlord does
not have to explain or justify its aim in wanting possession and
that the court will only be concerned with the occupier’s personal
circumstances. In serious cases it should not alter the end result.
In cases where the court had to decide whether it was reasonable to
order possession then proportionality in the context of the
individual personal circumstances should already have been
considered. It can only be hoped that the lower courts
interpret it properly, otherwise cases could take longer to resolve
& more cases could be appealed.