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Human Rights Act defences


By Gary Webber and Daniel Dovar
Co-authors of Residential Possession Proceedings

This article contains a detailed look at defences raised to claims for possession on the basis of the Human Rights Act. The contents are:
  • Introduction.
  • Article 8 of the Convention
  • What changed as a result of Pinnock?
  • To which land owners do the principles apply?
  • Proportionality and the facts
  • Proportionality and reasonableness
  • Where under the domestic law the land owner has an absolute right to possession - other factors the landlord may wish to rely upon.
  • Personal circumstances.
  • When is proportionality most likely to be relevant?
  • In which situations is Pinnock most likely to have an impact? (Demoted, introductory, homelessness, starter tenancies, Ground 8, where one joint tenant serves a notice to quit)
  • Trespassers
  • At what point in the proceedings should the court consider proportionality? Summary dismissal of the defence.
  • What should a court do it if it not proportionate to evict?
  • Status after refusal to order possession.
  • Summary
Revised September 2012.

Introduction

Manchester City Council v Pinnock
[2010] UKSC 45

In this case the Supreme Court (consisting of nine judges) unanimously held that where a defendant raises a human rights defence to a claim for possession brought by a public body the question for the judge to determine "is always whether the eviction is a proportionate means of achieving a legitimate aim" (Lord Neuberger at para 52).

In coming to this decision the Supreme Court overturned earlier decisions of the House of Lords and instead followed the jurisprudence of the European Court of Human Rights ("ECtHR"). The judgment of the court was given by Lord Neuberger. All quotations are from that judgment.

This article also refers to the Supreme Court decision in London Borough of Hounslow v Powell [2011] UKSC 8 where Pinnock was confirmed in relation to homelessness cases and those dealing with introductory tenancies.


Article 8

Firstly, a quick reminder of the relevant parts of Article 8 of the European Convention of Human Rights:
    "1. Everyone has the right to respect for … his home… .

    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 … the economic well-being of the country, for the prevention of disorder or crime, …or for the protection of the rights … of others."
The ECtHR has interpreted Art 8 as requiring the court considering the claim to determine whether or not the eviction is proportionate:
    "Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end…" (para 45)
As noted in the case at paragraph 61: "it is only where a person's 'home' is under threat that article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant's home (e g where very short-term accommodation has been provided)."

What changed as a result of Pinnock?

Until this decision, the House of Lords had said that the domestic courts should only determine that a defendant had an Art 8 defence if he or she could get through one of two "gateways" set out by Lord Hope in Kay v Lambeth [2006] 2 AC 465 at para 110. It was gateway (b) that was most pertinent:
    "(b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided ... that the point is seriously arguable .."
Those gateways, and the reliance on principles of judicial review, embodied in that statement are now gone. Instead, in all public sector cases (see below) the court must, when faced with an article 8 defence, consider whether or not it is proportionate to make the order for possession:
    "A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues." (para 45(b)).
In earlier cases there was debate about whether or not article 8 and proportionality should be considered in all cases or only in highly exceptional cases (para 51). In Pinnock Lord Neuberger made it clear that the principle applies to all cases. Para 52
    "The question is always whether the eviction is a proportionate means of achieving a legitimate aim."

To which land owners do the principles apply? - Private sector?

Pinnock was about a local authority seeking possession of premises that were subject to a demoted tenancy. It is clear that the decision therefore applies to local authorities.

The observations in the "judgment apply equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1988". The leading decision on whether or not a social landlord is a public authority for these purposes is London & Quadrant Housing Trust v Weaver, where it was held that one must look at the actual act being carried out and decide whether or not it was a public act.

However, Pinnock does not apply to the private sector. Lord Neuberger made this clear where he said that "nothing in this judgment is intended to bear on cases where the person seeking the order for possession is a private landowner". However, it is possible that in some future case the courts may come to a different conclusion (see paras 4 and 50). The point was just not considered in this case.

In Mailk v Fassenfelt [2013] EWCA Civ 798 the Court of Appeal held that a possession order against squatters was not disproportionate. One of the three appellate judges suggested (obiter, along with the Judge at first instance) that even in cases between a private landowner and a trespasser, where the trespasser can establish that they have a "sufficient and continuous link with a specific place" so as to fall within Article 8 of the Convention the court, as a public authority, is obliged by section 6 of the Human Rights Act 1998 to act in a way which is compatible with that Convention right. This is not authority for this proposition, and is at best persuasive.

In McDonald v McDonald [2014] EWCA Civ 1049 the Court of Appeal held that the principles did not apply to steps taken by an LPA receiver of a private buy-to-let landlord who was seeking to recover possession. The case is currently under appeal to the Supreme Court.


Proportionality and the facts

In determining whether or not it is proportionate to make an order for possession it will be necessary to look at the facts of the case. As stated above, the court is not confined to principles of judicial review. If appropriate the court hearing the possession claim must hear evidence and make necessary findings:
    "if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person's home at the suit of a local authority, 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."
Where there is more than one stage to the process it is the proceedings as a whole that need to be considered to see if Article 8 has been complied with (para 45(c)) This would clearly apply to a demoted tenancy but no doubt applies to all cases, in the sense that there is a process which invariably consists of (i) a decision to evict, (ii) the service of a notice, (iii) the taking of proceedings, (iv) the continuation of the proceedings and (v) the eviction itself.

Proportionality and reasonableness

Where the tenancy is a secure tenancy, there is no difficulty. The court invariably has to consider whether or not it is reasonable to make the order for possession. In doing so it is also effectively considering the question of proportionality. Paras 55 and 56:
    "The conclusion that, before making an order for possession, the court must be able to decide not only that the order would be justified under domestic law, but also that it would be proportionate under article 8(2) to make the order, presents no difficulties of principle or practice in relation to secure tenancies. … no order for possession can be made against a secure tenant unless, inter alia, it is reasonable to make the order. Any factor which has to be taken into account, or any dispute of fact which has to be resolved, for the purpose of assessing proportionality under article 8(2), would have to be taken into account or resolved for the purpose of assessing reasonableness under section 84 of the 1985 Act. Reasonableness under that section, like proportionality under article 8(2), requires the court to consider whether to order possession at all, and, if so, whether to make an outright order rather than a suspended order, and, if so, whether to direct that the outright order should not take effect for a significant time.

    Moreover, reasonableness involves the trial judge "tak[ing] into account all the relevant circumstances … in … a broad common-sense way" … It therefore seems highly unlikely, as a practical matter, that it could be reasonable for a court to make an order for possession in circumstances in which it would be disproportionate to do so under article 8."
The same reasoning would clearly apply to an assured tenancy granted by a registered provided of social housing, where the ground for possession is a discretionary ground such as Ground 10 or 11 (rent) or Ground 14 (nuisance etc.).

Where under the domestic law the land owner has an absolute right to possession - other factors landlord may wish to rely on

Although the order for possession must always be proportionate, the fact that a local authority has an absolute right to possession as a matter of domestic law will be highly relevant. Paragraph 52:
    "Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights."
There may also be other factors that will be relevant in the local authority's favour. Lord Neuberger continued at para 52:
    "It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers."
And at para 54:
    "Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow v Qazi para 25:

      "[T]he administration of public housing under various statutory schemes is entrusted to local housing authorities. It is not for the court to second-guess allocation decisions. The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification."

    Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way."

Personal circumstances

It is the personal circumstances of the defendant that are most likely to be relevant when determining whether or not it is proportionate to make the order for possession. Thus, the local authority is not obliged in any particular case to plead and put forward facts about itself that would support the argument that it is proportionate to make the order but it may do so if it wishes. Para 53:
    "the Secretary of State .. submitted that a local authority'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 occupiers' personal circumstances. In our view, there is indeed force in the point… that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession – for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it."

When is proportionality most likely to be relevant?

The domestic decisions in which Art 8 has so far had most relevance (albeit applying the principles earlier set out by the HL in Kay) have usually concerned vulnerable persons. It is also in these situations where the arguments on proportionality are most likely to have some effect:
    ".. the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue 'in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty', and that 'the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases' seem to us well made."

In which situations is Pinnock most likely to have an impact?

It is really in cases where as a matter of domestic law there is no defence to the claim that Pinnock is relevant. Para 57:
    "The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person's home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court's obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court."
The highlighted sentence is important. There are a number of circumstances in which this decision might be relevant:
  • Demoted tenancy cases

  • Introductory tenancies (under Chapter 1 of Part V of the 1996 Act)

  • Tenancies granted on a temporary basis to the homeless (under Part VII of the 1996 Act)

  • Other non-secure tenancies (HA 1985, Sched 1)

  • "Starter tenancies", ie assured shorthold tenancies granted by registered providers of social housing.

  • Assured tenancies granted by registered providers of social housing where the landlord is relying upon a mandatory ground, typically Ground 8 (mandatory ground for possession where there is at least 8 weeks etc. arrears of rent).

  • Where one of two joint tenants has served a notice to quit (now resolved - see below)

  • Occupiers who were once licencees who have had their licences determined.

  • Even perhaps some trespassers (perhaps in gypsy cases) but very rarely - see further below.
There may be others.

Demoted tenancies

Pinnock was about a demoted tenancy. The Supreme Court came to the conclusion that the demoted tenancy regime was Human Rights Act compliant because it was possible to read into it the ability of the county court judge hearing the possession claim to determine proportionality and any relevant issues of fact relevant to that issue. See in particular para 104:
    "We are, accordingly, of the view that a County Court judge who is invited to make an order for possession against a demoted tenant pursuant to section 143D(2) can consider whether it is proportionate to make the order sought, and can investigate and determine any issues of fact relevant for the purpose of that exercise. It follows that the demoted tenancy regime in the 1996 Act is compatible with article 8."
However, the fact that the secure tenancy had been demoted made it easier to come to the conclusion that the decision to evict was proportionate (see in particular para 58).

Introductory tenancies and temporary housing for the homeless

Since Pinnock the Supreme Court has confirmed that the principles set out in Pinnock (which related to demoted tenancies) apply equally to homelessness cases and introductory tenancies. (London Borough of Hounslow v Powell [2011] UKSC 8 - see in particular paragraphs 34 and 92).

Ground 8 cases

Where the tenancy is assured and there are at least 8 weeks / two months etc. rent in arrears the court must order possession if the landlord relies upon Ground 8 of Schedule to the Housing Act 1988. Sometimes those arrears accrue as a result of problems with housing benefit delays that are not the fault of the tenant. In those circumstances, the tenant may wish to have an adjournment to sort out the problems. However, in North British Housing Association Ltd v Matthews [2004] EWCA Civ 1736 the CA held that the power to adjourn the hearing date for the purpose of enabling the tenant to reduce the arrears to below the Ground 8 threshold may only be exercised in exceptional circumstances; and the fact that the arrears are attributable to maladministration on the part of the housing benefit authority is not an exceptional circumstance. It happens a lot! This decision may require reconsideration in the light of Pinnock. It is not difficult to envisage cases where it will not be proportionate to order possession where the arrears are the result of circumstances outside the immediate control of the tenant.

"Starter tenancies"

Starter tenancies are in fact assured shorthold tenancies granted by registered providers of social housing for a limited period, usually a year, to give the tenant the opportunity of showing that he or she will be a "good" tenant. They are the housing association equivalent to introductory tenancies. On the face of the legislation a landlord in respect of a starter tenancy can simply serve a s21 notice and then seek possession at the end of the fixed term. However, Pinnock is bound to lead to defence claims that the decision to serve the notice and pursue the possession claim is not proportionate, perhaps where there were only minor infringements of the starter tenancy. This was already occurring under the "gateway (b)" regime set out in Kay. For example, see West Kent Housing Association v Scott [2012] EWCA Civ 276, in particular at paragraphs 32 and 33 and Riverside Group v Thomas [2012] EWHC 169 (QB)).

Joint tenants - notice to quit by one of them

At common law, unless the tenancy provides otherwise a "notice to quit" (an odd name in this context) served by one of two joint tenants in respect of a periodic tenancy brings the tenancy to an end, even if given without the agreement of the other (Hammersmith and Fulham LBC v Monk [1992] 1 AC 478). The landlord is then entitled to possession. In Sims v Dacorum Borough Council it was held that this rule is is not incompatible with the other joint tenant's rights under Art.8 and Protocol 1 Art.1 of the ECHR. The case concerned a husband and wife whose relationship had ended. The husband and wife were joint tenants of a property rented from the local authority. The wife had served a notice to quit on the local authority to end their tenancy. The Court of Appeal gave short shrift to the husband's arguments that this breached his human rights. Mummery LJ gave the following reasons for coming to this conclusion:
    (1) It was not the object of the appeal to secure respect for the home lived in by the husband as a joint tenant or even to protect from interference or deprivation the property and contract rights that the husband had acquired (with his wife) from the Council as joint tenants. The sole aim was to enhance property rights conferred by contract by securing for him a sole tenancy of the Council's property without the concurrence of the Council as owner of the property. That was more a case of interference with the Council's enjoyment of its possessions than of an interference by the Council with the possessions of the husband.

    (2) In any event Article 8 was not engaged. Monk laid down a substantive rule of property and contract law under which one joint tenant has the right to serve notice unilaterally terminating a periodic joint tenancy. The wife had that right, as did the husband: its defeasibility by an act of one of them was inherent in the legal nature of the joint tenancy granted to them by the Council. There was nothing in the legal rule per se or in its exercise by the wife in this case that was an interference by her or by the Council with respect for the home of the husband.

    (3) Further Article 1 of the First Protocol was not engaged. As (a) the rule in Monk is a proprietary and contractual legal right inherent in the joint tenancy of the property granted by the Council to the tenants and (b) the notice given by the wife to the Council was in exercise of her rights as a joint tenant, there was no “interference” by her or by the Council with the enjoyment of the possessions of the husband. His relevant possession was an interest in a joint tenancy that was, in its very nature, terminable unilaterally by the wife or by him. The Council itself did nothing in relation to the termination of the joint tenancy that could possibly be described as an interference by it with the peaceable enjoyment by the husband of the property.

    (4) Finally, the proposed appeal to the Supreme Court was unarguable. There is no incompatibility between the rules of English property and contract law relating to the termination of a joint tenancy by one joint tenant and the ECHR.

Trespassers

A person who has no right to remain in a property under domestic law can only invoke Article 8 in highly exceptional circumstances: Birmingham City Council v Lloyd [2012] EWCA Civ 969. In that case the brother of a deceased secure tenant moved in after the death of the tenant. The brother had no possible legal right to enter into or remain in possession. However, based on the brother's personal circumstances, which included a history of depression, the judge considered it disproportionate to make an order for possession. The CA allowed the landlord's appeal.

Lord Neuberger at paragraphs 12 and 13:
    “It is now clear that a person who has no right under domestic law to remain in his home can in principle invoke Article 8 so as to defeat a claim for possession. However, as was said by Lord Phillips in paragraph 92 of Powell, this court in Pinnock stated that it is only "in very highly exceptional circumstances that it would be appropriate for the court to consider a proportionality argument". Lord Phillips added 'I believe that this proposition is an accurate statement of fact in relation to introductory tenant'. If that is right, then it must be at least as true, indeed in my view even more true, in the case of someone who entered the property as a trespasser and has remained a trespasser.

    What is striking about this case, unlike in the cases which I have mentioned, and indeed in the earlier House of Lords cases of Harrow London Borough Council v Qazi [2003] UKHL 43 and Kay v Lambeth London Borough Council [2006] UKHL 10, is that the defendant in this case was not merely a trespasser in the property concerned at the time the possession order was sought but he never has had any right to occupy the premises, whether under contract or statute. He entered the property as a trespasser and a trespasser he has remained.”
And at paragraph 18:
    “It would, I accept, be wrong to say that it could never be right for the court to permit a person, who had never been more than a trespasser, to invoke Article 8 as a defence against an order for possession. But such a person seeking to raise an Article 8 argument would face a very uphill task indeed, and, while exceptionality is rarely a helpful test, it seems to me that it would be require the most extraordinarily exceptional circumstances.”
The brother was very short of being able to cross the high threshold required (see paras 19 and 20).


When should the court consider proportionality?

Summary disposal of the defence

Generally speaking proportionately need only be considered when the defendant raises it. Para 61:
    ".. as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier."
Further, it may be dealt with on a summary basis in the first instance.
    "… if an article 8 point is raised, the court should initially consider it summarily, and if, 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, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained."
And see London Borough of Hounslow v Powell [2011] UKSC 8 at para 35:
    "35. Mr Luba QC accepted that the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. I think that he was right to do so … Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlord’s public responsibilities.

    If the threshold is crossed, the next question is what legitimate aims within the scope of article 8(2) may the claimant authority rely on for the purposes of the determination of proportionality and what types of factual issues will be relevant to its determination. The aims were identified in Pinnock, para 52. The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing.”
In Holmes v Westminster City Council [2011] EWHC 2857 it was held that a first instance judge was entitled to make an order for possession on a summary basis pursuant to CPR 55, even though there was a dispute of fact as to an alleged assault.

And in West Kent Housing Association v Scott [2012] EWCA Civ 276 the Master of the Rolls, Lord Neuberger, very much encouraged the early and summary disposal of cases (at paras 36 and 39):
    “... we were told that there was no consistency of approach in different County Courts as to how to proceed when a tenant raises an Article 8 proportionality point in possession proceedings. In some courts, the case is automatically listed for a hearing on the merits of the point; in other courts, the case remains in the usual housing possession list, and is then (depending on the court) (i) adjourned for fuller consideration, (ii) automatically re-listed for a hearing, or (iii) briefly considered and then either rejected or adjourned as under (i) or re-listed as under (ii)....

    The only specific point I would make is to emphasise the desirability of a judge considering at an early stage (normally on the basis of the tenant's pleaded case on the issue) whether the tenant has an arguable case on Article 8 proportionality, before the issue is ordered to be heard. If it is a case which cannot succeed, then it should not be allowed to take up further court time and expense to the parties, and should not be allowed to delay the landlord's right to possession. I accept, however, that it may well be that even that cannot be an absolute rule. Apart from that, questions of procedure in this area should perhaps be considered by the CPR Committee, and, meanwhile, Designated Civil Judges may think it worth considering such procedures in the courts for which they have responsibility.”
And in Birmingham City Council v Lloyd [2012] EWCA Civ 969 - the trespasser case referred to above - Lord Neuberger said this at paragraphs 26 and 27:
    "In Pinnock, the Supreme Court explained that, when an Article 8 defence is raised in a case coming before the District Judge in the possession list, the District Judge should identify the grounds on which the Article 8 right is said to be based, so that it can be assessed whether there is a real prospect of the Article 8 defence succeeding. This involves taking the facts on which the Article 8 argument is based as being correct and deciding whether, if faced with those facts, a judge could reasonably decide that an Article 8 defence would justify refusing a possession order.

    In these proceedings, the District Judge appears to have listed the Council's claim for a one-day hearing without seeing Mr Lloyd's defence. Had he not taken that course, it seems to me that a District Judge considering Mr Lloyd's case on its face, and taking all the facts Mr Lloyd relied on as correct, should peremptorily have decided that the Article 8 argument was not maintainable and should not have let it go to trial. If that had happened in this case, a one-day hearing would have been avoided."
.
What should a court do if it is not proportionate to evict?

If the court considers that it is not proportionate to make the order for possession then the usual position will no doubt simply be that no order should be made, at least at that time. Para 45(d):
    "If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied."
However, at para 62 Lord Neuberger indicated that there might be other sorts of order in other cases:
    ".. if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether."
Perhaps use of the phrase "exceptional cases" in relation to "refusing an order altogether" may be a slip because it would seem to be inconsistent with what Lord Neuberger said in paragraphs 51 and 52 of his judgment (see above).

Lord Neuberger recognised that the court's conclusion is inconsistent with s89 of the Housing Act 1980 and some other court rules. Para 63:
    "… the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person's home may require certain statutory and procedural provisions to be revisited. For example, section 89 of the 1980 Act limits the period for which a possession order can be postponed to 14 days, or, in cases of "exceptional hardship", 42 days. And some of the provisions of CPR 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies which we are about to discuss under the third issue."
In London Borough of Hounslow v Powell [2011] UKSC 8 the Supreme Court gave further consideration to s89. It was held that whilst the wording of the statute was so clear that it could not be interpreted more liberally to allow for greater periods, it was possible to utilise case management powers to delay the date for possession. However, this was limited to cases involving an appeal or where further information was needed. Lord Hope went on to state clearly at para 63:
    "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" (para 63).
See also Lord Phillips at para 103:
    "In any situation where the judge dealing with an application for a possession order has power to refuse to make the order on the ground that it would infringe article 8, no question of incompatibility can arise in relation to section 89. That section merely increases the options open to the judge. He can (i) make an immediate order for possession; (ii) make an order the operation of which is postponed up to the limit permitted by section 89; (iii) refuse to make the order on the ground that it would infringe article 8. The clear limit on the judge's discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged."
Thus, the court may refuse possession altogether if it comes to the conclusion that to make the order would be disproportionate. Further, if the court is of the view that proportionality requires a greater period than 6 weeks is needed before possession is to be given up, because s89 will not permit such an order, the court may in rare cases find itself making no order for possession at all.


Status after refusal to order possession

What will be the status of the occupier if, in a case where the landlord has an absolute right to possession as a matter of domestic law, the court refuses to order possession because it is not proportionate? This it seems will depend upon the previous status of the tenant. For example, if the tenant had a "Starter tenancy" ie. an Assured Shorthold Tenancy the refusal to order possession will mean that he or she simply remains as an assured shorthold tenant. This is because the tenancy will not come to an end until executed (Knowsley v White [2008] UKHL 70; Schedule 11 of the Housing and Regeneration Act 2008). The same would be true, eg, in any Ground 8 case where the court considers that it it not proportionate to order possession.

But what about a licensee whose licence has been brought to an end? What is that person's status? Is any licence fee payable? Are there any other obligations? Perhaps we have the making of a new breed of "tolerated trespasser", tolerated by the court if not the landlord!


Summary
  • Where a public body brings a possession claim and the defendant challenges the claim on the basis of article 8 of the European Convention of Human Rights the question is always whether or not the eviction is a proportionate means of achieving a legitimate aim.

  • This decision applies to local authorities, and to registered providers of social housing which are considered to be public bodies. It does not apply to private land owners, who were not considered in the case.

  • Where it is necessary to establish that it is reasonable to make an order for possession, eg. in the case of a secure tenancy, a finding that the order is reasonable will inevitably mean that the order is proportionate.

  • It will usually be personal factors relating to the tenant, rather than specific factors relating to the landlord, which will be relevant in determining proportionality.

  • Proportionality is most likely to be relevant where the tenant is a vulnerable person in some way.

  • The court need normally only consider proportionality if it is raised by the defendant. If the defendant does so the court should do so at an early stage and may initially consider the matter on a summary basis.

  • It is the court hearing the claim for possession which determines proportionality and any facts that are relevant to that issue.

  • If it is not proportionate at the time of the hearing to make the order for possession no order will be made. In some exceptional cases postponed or suspended possession orders might be appropriate.

Conclusion

For practical purposes, perhaps the most important section in the whole judgment is at para 54 where Lord Neuberger states:
    "... in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way."

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