Eviction of local authority tenants – a question of proportionality

A recent Supreme Court decision[1] has strengthened the rights of council tenants threatened with eviction, by ruling that the right to family life (Article 8) of the European Convention of Human Rights requires a court, when asked by a local authority to make an order for possession of a person’s home, to assess the proportionality of making such an order.

The facts

The Appellant in this case, Cleveland Pinnock (“CP”), was a tenant who had been living in a property owned by the Respondent local authority, Manchester City Council (“MCC”), for over 30 years with his partner and, from time to time, with some or all of their five children.

Most residential occupiers of local authority properties are “secure tenants”, which means that they cannot be evicted other than pursuant to certain grounds contained within the Housing Act 1985. However, CP was a demoted tenant, which meant that, pursuant to the Anti-Social Behaviour Act 2003, he had had a demotion order made against him, which removed this security of tenure. A demoted tenancy lasts for a year and then reverts back to being a secure tenancy, unless within that year the landlord brings possession proceedings and requests the Court to end the demoted tenancy under the Housing Act 1996.

The demotion order against CP was made because of a number of incidents of serious antisocial behaviour caused by all members of CP’s family at or near the property.

Therefore, a day before the effective lapse of the demoted tenancy, MCC served a notice seeking possession of the property.

The possession notice was upheld and MCC issued a claim for possession in the Manchester County Court, which was granted. CP appealed to the Court of Appeal, who dismissed his appeal, and CP therefore appealed to the Supreme Court.

CP’s main argument was that the possession order violated his right to respect for his home under Article 8 because it was disproportionate. Both the Manchester County Court and the Court of Appeal rejected this argument on the basis that it was not open to them to review MCC’s decision on the ground that it was disproportionate. They held that MCC’s decision to seek possession was rational.

The ruling of the Supreme Court

The Supreme Court disagreed with the previous Court rulings. It held that a Court, which is asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any factual disputes between the parties. The Court noted that the appeal involved a comparatively rare type of possession claim, namely a claim against a demoted tenant. Nevertheless, the Court was able to make certain “general points”[2]:

1. Article 8 only comes into play when a person’s “home” is involved.
2. As a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned.
3. Any article 8 defence should initially be considered summarily.
4. Even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether.
5. The conclusion that the Court must have the ability to consider the article 8 proportionality of making a possession order may require certain statutory and procedural provisions to be revisited.
6. Article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or physical disability.

Given the above, the Court naturally went on to consider whether it was proportionate to evict PC and his family. Unfortunately for PC, there was undisputed evidence of three serious offences committed by his sons in, or in the vicinity of, the property during the year when the demotion order was in force. The Court therefore concluded that the possession order against PC was indeed proportionate and should be upheld. The effect of this decision Whilst this case was a defeat for PC personally, the decision effectively bolsters the rights of council tenants faced with an eviction order, since they will now be able to request a Court to consider the proportionality of their proposed eviction. This is likely to make it more difficult in general terms for councils to evict tenants without good cause. The

Court emphasised that this conclusion relates to possession claims by local authorities only, and is not intended to bear on cases where the person seeking possession is a private landlord. This issue has yet to be decided, but will need to be determined as and when it arises.[3]


Footnotes

[1] Manchester City Council v Pinnock [2010] UKSC 45
[2] Paragraphs [61] – [64] of the Judgment
[3] Paragraph [50] of the Judgment


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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