Leeds City Council v Hall. Birmingham City Council v Frisby.

before

Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Collins

JUDGMENT GIVEN ON

23 February 2011

Heard on 23 and 24 November 2010

Appellant (Powell) Jan Luba QC Kevin Gannon (Instructed by Scully & Sowerbutts Solicitors)	Respondent Ashley Underwood QC Kelvin Rutledge (Instructed by Corporate Services, London Borough of Hounslow
Appellant (Hall) Jan Luba QC Adam Fullwood (Instructed by Zermansky & Partners Solicitors)	Respondent Ashley Underwood QC Kelvin Rutledge (Instructed by Leeds City Council)
Appellant (Frisby) Jan Luba QC Michael Singleton (Instructed by Evans Derry Binnion Solicitors)	Respondent Andrew Arden QC Jonathan Manning Robert Brown (Instructed by Birmingham City Council)
Intervener (Secretary of State for Communities and Local Government) Daniel Stilitz QC Ben Hooper (Instructed by Treasury Solicitor)

LORD HOPE

1. These are three of five conjoined appeals which were heard by the Court of Appeal in Salford City Council v Mullen [2010] EWCA Civ 336, [2010] LGR 559. They are concerned with possession proceedings brought by a local authority in circumstances where the occupier is not a secure tenant under Part IV of the Housing Act 1985. Two of them, Leeds City Council v Hall (“Hall”) and Birmingham City Council v Frisby (“Frisby”), are cases where the claims for possession were made against tenants occupying under introductory tenancies entered into under Chapter 1 of Part V of the Housing Act 1996. In the third, London Borough of Hounslow v Powell (“Powell”), the claim for possession was made against a person who was granted a licence of property under the homelessness regime in Part VII of the 1996 Act. Permission to appeal was given in a fourth case, Salford City Council v Mullen. But the proceedings in that case were stayed to await the outcome of these appeals.

2. Common to all three cases is the claim by each of the appellants that the property which is the subject of the proceedings for possession against them is their “home” for the purposes of article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Their case is that, to avoid a breach of article 8, the interference must be justified under article 8(2) as being “necessary in a democratic society” and that this means that it must be in accordance with the law, it must be for a legitimate aim and it must be proportionate to the aim that the local housing authority is seeking to achieve. They maintain that, as the court did not assess the proportionality of making the orders against them, there was a breach of their article 8 rights.

3. The Court had the opportunity in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 3 WLR 1441 (“Pinnock”) of considering the application of article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). It held that article 8 requires a court which is being asked to make an order for possession under section 143D(2) of the Housing Act 1996 against a person occupying premises under a demoted tenancy as his “home” to have the power to consider whether the order would be necessary in a

democratic society: para 2. Although Mr Arden QC submitted forcefully that it should not apply to introductory tenancies in view of their probationary nature, I would hold that this proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a person’s home for the purposes of article 8. There is a difference of view between the parties, however, as to its consequences, and in particular as to how cases of this kind should be dealt with in practice by the courts and local authorities.

4. The Court recognised that cases of the type that was examined in Pinnock arise relatively rarely and that cases of the kind represented by these appeals, which involve possession orders in different and more common circumstances, were likely to provide a more appropriate vehicle for the giving of general guidance: paras 58-59. It was expected that the lawyers preparing for these appeals would have the opportunity of giving particular attention to the guidance that might usefully be given where possession is sought against introductory tenants and against applicants under the homelessness regime where there is no provision for the kind of procedure envisaged in Chapters 1 and 1A of Part V of the 1996 Act for introductory and demoted tenancies. I wish to pay tribute to counsel on all sides for the way in which they have taken full and careful advantage of that opportunity.

The issues

5. The Court of Appeal delivered its judgment in Salford City Council v Mullen [2010] EWCA Civ 336 on 30 March 2010. As Waller LJ explained in para 4, the court held that it was bound by what was said in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, para 110, as to the circumstances in which a county court might decline to make a possession order. They were limited to two situations: first, if it was seriously arguable that the law which enables the county court to make the possession order is itself incompatible with article 8 (which the Court of Appeal in Doherty v Birmingham City Council [2006] EWCA Civ 1739, [2007] LGR 165, para 28 called “gateway (a)”); and second, if it was seriously arguable that the decision of the public authority was (regardless of the tenant’s Convention rights) an improper exercise of its powers because it was a decision that no reasonable person would consider justifiable (which the Court of Appeal in Doherty called “gateway (b)”). So, where the local authority had fulfilled the requirements for the recovery of possession contained in the ordinary domestic law, a defence which did not challenge the law under which the order was sought as being incompatible with article 8 but was based on the proposition that the interference with the person’s home was disproportionate should be struck out.
6. Writing extrajudicially, Lord Bingham of Cornhill said of the Strasbourg jurisprudence that its strength lies in its recognition of the paramount importance to some people, however few, in some circumstances, however rare, of their home, even if their right to live in it has under domestic law come to an end: Widening Horizons, The Hamlyn Lectures (2009), p 80. There has never been any dispute about gateway (a). It can be traced back to Kay v Lambeth London Borough Council [2006] 2 AC 465, para 39 where, in head (3)(a) of his summary of the practical position, Lord Bingham described the first of the two grounds on which the court might consider not making a possession order as being that the law which required the court to make the order despite the occupier’s personal circumstances was Convention-incompatible. But gateway (b), albeit widened to some degree by what was said in Doherty v Birmingham City Council [2008] UKHL 57, [2009] AC 367, para 55, has always been controversial. The central issue which divided the parties in Pinnock was whether the proposition which was encapsulated in it should still be applied in the light of subsequent decisions of the European Court of Human Rights in McCann v United Kingdom (2008) 47 EHRR 913, Ćosić v Croatia (Application No 28261/06) (unreported) given 15 January 2009, Zehentner v Austria (Application No 20082/02) (unreported) given 16 July 2009 and Paulić v Croatia (Application No 3572/06) (unreported) given 22 October 2009.

7. This Court held that those cases, together with Kay v United Kingdom (Application No 37341/06) given 21 September 2010, The Times 18 October 2010, provided a clear and constant line of jurisprudence to the effect that any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to question the proportionality of the measure and to have it determined by an independent tribunal in the light of article 8: para

45. The decision in Doherty v Birmingham City Council had shown that our domestic law was already moving in that direction, and the time had come to accept and apply the jurisprudence of the European court. So, where a court is asked to make an order for possession of someone’s home by 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: para 49.

8. It is against the background of that decision that the issues that arise in the present appeals must be considered. They can be summarised briefly at this stage as follows. (1) What is the form and content of the proportionality review that article 8 requires? (2) What procedural protections are implicit in article 8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced? (3) Can the court defer the delivery of possession for a period in excess of the maximum permitted by section 89 of the Housing Act 1980 if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility? (4) Can section 127(2) of the 1996 Act be read compatibly with the introductory tenant’s article 8

Convention right so as to allow him to defend a claim for possession on the grounds recognised in Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right? These issues are dealt with in paras 33-

64. The correct disposal of each appeal will also have to be considered, having regard to the facts of each case. This is dealt with in paras 65-70.

The statutory background

9. As was explained in paras 5-7 of Pinnock, most residential occupiers of houses and flats owned by local authorities are “secure tenants” under Part IV of the Housing Act 1985. In those cases the tenant must be given a notice setting out the reasons why possession is sought, the tenant cannot be evicted unless the landlord establishes that one of the grounds for possession listed in Schedule 2 to the 1985 Act applies and, except in some specified categories of case where suitable alternative accommodation is available, the court is satisfied that it is reasonable to make the order. But certain types of tenancy are excluded from this regime. They are listed in Schedule 1 to the 1985 Act. They include two types of tenancy that were included in that Schedule by amendment: introductory tenancies referred to in paragraph 1A, added by paragraph 5 of Schedule 14 to the 1996 Act; and demoted tenancies referred to in paragraph 1B, added by paragraph 2(4) of Schedule 1 to the Anti-social Behaviour Act 2003. In addition, paragraph 4 of Schedule 1 to the 1985 Act (as substituted by paragraph 3 of Schedule 17 to the 1996 Act) provides that a tenancy granted in pursuance of any function under Part VII of the 1996 Act, which deals with homelessness, is not a secure tenancy unless the local housing authority concerned has notified the tenant that the tenancy is to be regarded as a secure tenancy.

10. The legislature has excluded these types of tenancy from the statutory scheme which applies to secure tenancies for very good reasons, which are firmly rooted in social policy. In seeking democratic solutions to the problems inherent in the allocation of social housing, Parliament has sought to strike a balance between the rights of the occupier and the property rights and public responsibilities of the public authority. The regimes that apply to introductory tenancies and demoted tenancies have been designed to address the problem of irresponsible or disruptive tenants whose presence in social housing schemes can render life for their neighbours in their own homes intolerable. The homelessness regime provides the local housing authority with the flexibility in the management of its housing stock that it needs if it is to respond quickly and responsibly to the demands that this pressing social problem gives rise to. Measures which would have the effect of widening the protections given to the occupiers by the statutes must be carefully tested against Parliament’s choice as to who should, and should not, have security of tenure and when it should be given to them, if at all. Social housing law draws a clear distinction between cases where security of tenure has been given, and those where it has not. There are clear policy reasons why Parliament has denied

security to certain classes of occupier. It is with this in mind that the homelessness and introductory tenancy regimes must now be described in more detail.

1. homelessness

11. The duties of local authorities in relation to homeless persons are set out in Part VII of the 1996 Act. Ms Powell was provided with accommodation under section 193(2). That section applies where the local housing authority is satisfied that an applicant is homeless, eligible for assistance and has a priority need, and is not satisfied that he became homeless intentionally. In these circumstances section 193(2) imposes a duty on the local housing authority to secure that accommodation is available for occupation by the applicant. The duty ceases in various circumstances, such as if the applicant became homeless intentionally from the accommodation that was made available for his occupation or otherwise voluntarily ceases to occupy that accommodation as his only or principal home.

12. Where the local housing authority decides that its duty under section 193(2) has ceased, the applicant has the right to request that it reviews its decision: section 202(1)(b). If the applicant is dissatisfied with the decision on review he may appeal to the county court on any point of law arising from the decision on review or, as the case may be, the original decision: section 204(1). Where an applicant has been found to be homeless and eligible for assistance but the local housing authority is also satisfied that he became homeless intentionally and has a priority need, it is under a duty to secure that accommodation is available for his occupation for such period as it considers will give him a reasonable opportunity of securing accommodation for his occupation: section 190(2).

13. As already noted, tenancies granted under Part VII of the 1996 Act are not secure tenancies unless the local housing authority has notified the tenant that the tenancy is to be regarded as a secure tenancy. So the local authority is not required under domestic law to establish any particular ground for the termination of the tenancy when seeking possession from a tenant on whom it has served a notice to quit who has not been so notified. The only procedural protections are to be found in the requirement under sections 3 and 5 of the Protection from Eviction Act 1977 that an order of the court must be obtained in order to recover possession and the requirement to give notice to quit in the form stipulated by that Act.

14. Section 89 of the Housing Act 1980 provides that, when the court makes an order for the possession of any land (except in the circumstances set out in section 89(2)), the giving up of possession may not be postponed for more than 14 days or, in cases of exceptional hardship, to a date no later than six weeks after the making of the order.
15. introductory tenancies

15. Mr Hall and Mr Frisby were tenants under introductory tenancies when the possession orders were sought against them. The regime under which they were granted these tenancies is set out in Chapter 1 of Part V of the 1996 Act. It was created in response to concerns among social landlords about anti-social behaviour among their tenants. In April 1995 a consultation paper was issued in which views were sought on what were then described as probationary tenancies. The idea was that, as a probationary tenancy would be converted automatically into a secure tenancy only if it was completed satisfactorily, a clear signal would be given to new tenants that anti-social behaviour was unacceptable and would result in the loss of their home: para 3.2. The White Paper Our Future Homes: Opportunity, Choice, Responsibility (Cm 2901, June 1995) identified the government’s aims as being to encourage responsible social tenants and to protect the quality of life for the majority by supporting effective action against the minority of anti-social tenants. Social landlords were to be given the means to act rapidly to remove tenants in the worst cases, as a measure of last resort.

16. Section 124 of the 1996 Act provides that a local housing authority or a housing action trust may elect to operate an introductory tenancy regime. Section 124(2), prior to its amendment by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010 (SI 2010/866), provided :

“(2) When such an election is in force, every periodic tenancy of a dwelling-house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant or, in the case of joint tenants, one or more of them was –

1. a secure tenant of the same or another dwelling-house, or

2. an assured tenant of a registered social landlord (otherwise than under an assured shorthold tenancy) in respect of the same or another dwelling-house.”

The duration of an introductory tenancy is defined by section 125. The tenancy remains as an introductory tenancy until the end of the trial period which, unless shortened because the tenant was formerly a tenant under another introductory tenancy, lasts for the period of one year: section 125(2). It does not become a secure tenancy until the end of the trial period: Housing Act 1985, Schedule 1,

paragraph 1A. The conversion then takes place automatically unless the introductory tenancy has been terminated.

17. Section 127 deals with proceedings for possession of a property which is subject to an introductory tenancy. It provided (prior to its amendment by the Housing and Regeneration Act 2008):

“(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling- house.

2. The court shall make such an order unless the provisions of section 128 apply.

3. Where the court makes such an order, the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order.”

18. Section 128(1) provides that the court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with that section. The notice must state that the court will be asked to make an order for possession, set out the reasons for the landlord’s decision to apply for such an order, specify a date after which proceedings may be begun, inform the tenant of his right to request a review of the landlord’s decision to seek a possession order and inform him that he can receive help or advice about the notice from a Citizens’ Advice Bureau, a housing aid centre or a solicitor: subsections (2)-(7). Section 129 provides that a request for a review of the landlord’s decision to seek an order for possession of the dwelling-house must be made within no more than 14 days of service of the notice of proceedings under section 128.

19. The procedures of the demoted tenancy regime, which is the regime with which the Court was concerned in Pinnock, are closely based on the regime for introductory tenancies. The procedure governing the landlord’s right to recover possession during the probationary period is set out in sections 143D, 143E and 143F which, as was noted in Pinnock, para 13, are virtually identical to sections 127, 128 and 129 of the 1996 Act. But there is one important difference. A tenant under a demoted tenancy was previously a tenant under a secure tenancy, that tenancy having been brought to an end by a demotion order under section 82A of the Housing Act 1985 (as inserted by section 14 of the Anti-social Behaviour Act 2003). The social purpose of the introductory tenancy regime is to allow local authorities to grant tenancies to new tenants without conferring security of tenure

upon them until they have demonstrated that they are responsible tenants during the introductory period. This is a factor which will always be highly relevant in any assessment of the proportionality of the landlord’s claim for possession, as the effect of denying the claim will be that an introductory tenant who may not deserve a secure tenancy will automatically obtain one.

The facts

1. Ms Powell

20. As already noted, the local housing authority was satisfied that Ms Powell was homeless, eligible for assistance and had a priority need, and was not satisfied that she had become homeless intentionally. She was given a licence by the London Borough of Hounslow (“Hounslow”) to occupy a two bedroom ground floor flat at 15 Pine Trees Close, Cranford from 2 April 2007. She and her two sons Zaid, born on 3 April 2005, and Nour, born on 14 April 2006, were noted on the agreement as the occupiers. A claim for housing benefit was received by Hounslow on 4 April 2007 in which Ms Powell indicated that she had a partner named Mr Ahmad Sami who normally resided with her. By letter dated 11 May 2007 Hounslow wrote to Ms Powell stating that there were arrears of rent and warning her that this could lead to termination of her licence to occupy the property. But on 14 May a credit of housing benefit was received which reduced the arrears to zero. There was a further period when the payments fell into arrears, but they were fully cleared by a payment of housing benefit on 3 December 2007.

21. On 5 February 2008 Hounslow’s housing benefit section wrote to Ms Powell asking her to provide it with information in connection with her claim. On 7 March 2008 it wrote to her stating that the information which it had asked for had not been provided. As a result the housing benefit claim was terminated from 23 December 2007. On 10 March 2008 Hounslow’s income recovery officer wrote to Ms Powell informing her that there were arrears of licence payments and asking her to attend for an interview on 17 March 2008. Ms Powell did not attend as she had an interview at about the same time and on the same day with the Department of Work and Pensions. On 17 March 2008 Hounslow sent a letter to Ms Powell with a notice to quit. On 20 March 2008 she attended its offices and discussed the arrears with one of its officers. On the same day a letter was sent to her setting out the possible effect on Hounslow’s homelessness duty towards her were she to be evicted due to rent arrears.

22. On 28 April 2008 Hounslow’s housing benefit section sent Ms Powell a housing benefit form. It was received on 12 May 2008 and payment of housing benefit was resumed on 26 May 2008. But there were substantial arrears of rent,

represented by some 11 weeks’ rent, which were not covered by the initial credit of housing benefit and which remained unpaid. On or about 19 September 2008 Hounslow issued a claim for possession of the premises, relying on the notice to quit dated 17 March 2008. It was explained that there were arrears as at 30 June 2008 of £3,536.39. The matter came before Deputy District Judge Shelton on 14 May 2009, who heard evidence from witnesses, including Ms Powell. He found that the measures that had been taken by Hounslow were reasonable and proportionate (in the Doherty sense), and granted possession of the premises to Hounslow. Having heard submissions as to her personal circumstances, he required Ms Powell to give possession of the property on or before a date 14 days after the date when the order was made.

23. Ms Powell was granted permission to appeal against the judge’s order by Mummery LJ on 2 July 2009, with a stay of execution on condition that Ms Powell paid off the arrears at £5 per week. Her appeal was heard as one of five appeals by the Court of Appeal in March 2010. It held that the decision in Ms Powell’s case was lawful, as the circumstances were not highly exceptional in the context of the homelessness legislation: [2010] EWCA Civ 336, para 76. Her appeal was dismissed and the judge’s order was stayed pending the filing of a notice of appeal to this Court.

24. Ms Powell’s current position is that she is 23 years old and that her household consists of herself, her partner Mr Ahmad Sami and their four children, Zaid who is now 5, Nour who is now 4, Taysier who was born on 13 July 2007 and is now 3, and Laila who was born in July 2009 and is now 1. The family is in receipt of various benefits including housing benefit which covers all of the rental liability. In December 2009 the family was moved from 15 Pine Tree Close so that disrepair within the premises could be dealt with. Work was completed in April 2010, and the family returned to the premises and has remained in occupation ever since.

2. Hall

25. Mr Hall became an introductory tenant of property at 147 Leeds and Bradford Road, Bramley, Leeds of which he was granted a sole tenancy by Leeds City Council (“Leeds”) on 21 April 2008 and where he lives alone. Allegations were made of noise nuisance and anti-social behaviour by Mr Hall and by visitors to the property. The behaviour which was complained of was mainly of noise nuisance from loud music and television and the banging and slamming of doors. Mention was also made of shouting, screaming and arguing, banging on the communal door and ringing a neighbour’s doorbell at night and in the early hours of the morning. It was also said that Mr Hall had engaged in threatening and intimidating behaviour and had been verbally abusive towards his neighbours. On

1 July 2008 a noise abatement notice was served on him. He did not appeal against this notice, and he appears to have disregarded it as complaints continued to be received.

26. On 28 November 2008 Leeds served a notice of proceedings for possession on him under section 128 of the 1996 Act. A review was sought, and the notice was withdrawn following the review. Leeds continued nevertheless to receive allegations of noise nuisance and anti-social behaviour, so on 6 March 2009 it served a further notice of proceedings for possession on Mr Hall. He again requested a review, but this time the review hearing upheld the service of the notice.

27. When the claim for possession came before His Honour Judge Spencer QC in the county court on 6 August 2009 the appropriateness of the notice was not challenged, nor was its validity. Mr Hall accepted in a statement that was produced for the trial that there may have been occasions when he had played loud music and that, when his now ex-girlfriend visited him and they drank alcohol together, they would sometimes argue. He claimed that he had been drinking excessively because he had been suffering from depression and said that he had been receiving support from an organisation which supports vulnerable people who were having difficulty in maintaining their tenancies. He asked the court to consider whether matters occurring after the review could provide a basis for challenging Leeds’ decision to seek possession.

28. The judge held that he could not consider anything occurring after the date of the review because section 127(2) of the 1996 Act provides that when, as happened in this case, the tenant has been served with a notice of proceedings that complies with section 128, “the court shall make” the order. He made an order for possession, the effect of which was that Mr Hall was required to give possession of the property on or before a date 28 days after the date when the order was made. He gave Mr Hall permission to appeal, and stayed execution of the order for possession pending the appeal.

29. On 21 September 2009 Mr Hall lodged a notice of appeal and his appeal was heard together with that of Ms Powell and Mr Frisby as one of five appeals by the Court of Appeal (Waller, Arden and Patten LJJ) in March 2010. The court said that the judge ought to have considered whether the facts that had become known after the review made it arguable that the decision to pursue the proceedings was unlawful and in fact held that this was unarguable. This was because tenants are on probation under the introductory tenancy scheme, because the review was not challenged and because there was no basis for arguing that it was unlawful for a local authority to refuse to change its mind by reference to facts which simply sought to demonstrate that the occupier’s behaviour had improved: [2010] EWCA

Civ 336, para 79. The appeal was dismissed and the judge’s order was stayed for pending the filing of a notice of appeal to this Court. Mr Hall remains in occupation of the property.

3. Mr Frisby

30. Mr Frisby became an introductory tenant of property at 9 Hebden Grove, Hall Green, Birmingham under a tenancy agreement with Birmingham City Council (“Birmingham”) dated 23 April 2007. Birmingham received complaints of excessive noise, including singing, music and banging emanating from the property. It served a noise abatement notice on Mr Frisby on 19 November 2007 which permitted proceedings to be brought for a warrant to confiscate sound producing equipment. On 4 February 2008 it served a notice under section 125A of the 1996 Act which had the effect of extending the trial period of the tenancy by six months to 22 October 2008. Mr Frisby was advised of his right to seek a review of the decision to extend his introductory tenancy but he did not do so. Having received further complaints of noise, Birmingham executed a warrant under the Environmental Protection Act 1990 and seized and removed sound producing equipment from the property.

31. On 2 May 2008 Birmingham served a notice of proceedings for possession on Mr Frisby under section 128 of the 1996 Act. He requested a review of the decision to seek the order. When the review panel convened he raised a number of issues and the panel decided to adjourn the hearing as they needed further information. He did not attend the resumed hearing which proceeded in his absence, and the decision to commence proceedings was upheld. On 17 September 2008 Birmingham commenced proceedings for possession in Birmingham County Court. Mr Frisby filed a defence in which it was averred that Birmingham was amenable to judicial review and that the decision to seek possession was an improper exercise of its common law powers and an interference with his rights under article 8. The possession claim was heard by District Judge Gailey on 3 July 2009. He held in favour of Birmingham and struck out Mr Frisby’s defence. But he acceded to an application that he should not make a possession order there and then but should first hear argument as to whether or not he should adjourn the proceedings to enable an application for a judicial review to be brought in the administrative court.

32. On 27 October 2009 Mr Frisby was given permission to appeal against the judge’s decision, and the matter was referred to the Court of Appeal under CPR

52.14. As in the cases of Ms Powell and Mr Hall, his appeal was heard as one of five appeals by the Court of Appeal in March 2010. Having allowed certain additional expert evidence to be admitted, it dismissed the appeal: [2010] EWCA

Civ 336, para 80. The judge’s order was stayed pending the filing of a notice of appeal to this Court. Mr Frisby remains in occupation of the property.

The form and content of the proportionality review

33. The basic rules are not now in doubt. 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. But it will, of course, be necessary in each case for the court first to consider whether the property in question constitutes the defendant’s “home” for the purposes of article

8. This is because it is only where a person’s “home” is under threat that article 8 comes into play: Pinnock, para 61. It is well established in the jurisprudence of the Strasbourg court that an individual has to show sufficient and continuing links with a place to show that it is his home for the purposes of article 8: Gillow v United Kingdom (1986) 11 EHRR 335, para 46; Buckley v United Kingdom (1996) 23 EHRR 101, 115, para 54; see also Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, paras 9, 61-68. In Paulić v Croatia, para 33 the court said:

“‘Home’ is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a ‘home’ which attracts the protection of article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place.”

This issue is likely to be of concern only in cases where an order for possession is sought against a defendant who has only recently moved into accommodation on a temporary or precarious basis. The Leeds appeal in Kay v Lambeth London Borough Council [2006] 2 AC 465, where the defendants had been on the recreation ground in their caravan for only two days without any authority to be there, provides another example of a situation where it was not seriously arguable that article 8 was engaged: see para 48. In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8.

1. homelessness

34. The first question is whether in a case where domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession, there is a requirement for an independent determination by a court of

the issue of proportionality. In Pinnock it was held 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: para 63. This is so even if the defendant’s right of occupation has come to an end: Pinnock, para 45, applying McCann v United Kingdom, para 50; Ćosić v Croatia, para 22; Zehentner v Austria, para 59; Paulić v Croatia, para 43; and Kay v United Kingdom, para 68. But it was also held that, as a general rule, article 8 need only be considered if it is raised by or on behalf of the residential occupier, and that if an article 8 point is raised the court should initially consider it summarily and if it is satisfied that, even if the facts relied on are made out, the point would not succeed it should be dismissed. Only if it is satisfied that it is seriously arguable that it could affect the order that the court might make should the point be further entertained: para 61. I would hold that these propositions apply as much in principle to homelessness cases as they do to demoted tenancies. It follows that in the great majority of cases the local authority need not plead the precise reasons why it seeks possession in the particular case. But if an article 8 defence is raised it may wish to plead a more precise case in reply.

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: see also Pinnock, para 54. 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. Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community.   It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.

36. 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 Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement.

37. So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier’s personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44.

38. Mr Underwood QC drew attention to the fact that there was no express provision in Part VII of the 1996 Act which empowers a court to refuse to grant a possession order to the local authority where the occupier is accommodated following an exercise of the authority’s functions under that Part of the Act. He said that this was because Parliament had taken a positive decision not to provide secure tenancies to persons who were accommodated under the homelessness provisions unless the local authority chooses otherwise. Part VII was intended to be a life-line for those who had nowhere to live; it uses accommodation which may be needed quickly for other cases; an occupier who is evicted through no fault of her own will be accommodated elsewhere; and if there is an issue about fault there is a right of review and of appeal.   The thrust of this part of his argument was that it was not possible under the scheme of Part VII to meet the article 8 procedural requirement in a way that was called for by the decision in Pinnock.

39. The answer to this argument is to be found in the fact that there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII.   There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the

legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate.

40. Mr Luba then said that each of the exceptions to the security of tenure regime was there for a particular social housing reason. It was material to a consideration of the issue of proportionality, therefore, for the court to know whether the local authority’s reason for seeking a possession order was relevant in that context. In the case of an occupier who had been provided with accommodation under Part VII, seeking a possession order to enable the local authority to perform its homelessness functions, such as moving a family whose numbers had reduced to smaller accommodation, the case for granting the order would in the overwhelming number of cases be proportionate. But if the local authority’s decision was based on other factors such as rent arrears which were not related to the performance of its homelessness functions, it was not enough to tell the court that it was the local housing authority and to rely on the two legitimate aims. He said that a structured approach was required to the issue of proportionality so that the interests of the local authority could be balanced against that of the occupier: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, paras 19-20. Support for this was to be found in Zehentner v Austria, para 56 where the court said that, while it was for the national authorities to make the initial assessment of necessity, the final evaluation as to whether “the reasons cited for the interference” are relevant and sufficient remains subject to its review for conformity with the requirements of the Convention.

41. A structured approach of the kind that Mr Luba was suggesting may be appropriate, and indeed desirable, in some contexts such as that of immigration control which was the issue under discussion in Huang v Secretary of State for the Home Department. But in the context of a statutory regime that has been deliberately designed by Parliament, for sound reasons of social policy, so as not to provide the occupier with a secure tenancy it would be wholly inappropriate. I agree with Mr Stilitz QC for the Secretary of State that to require the local authority to plead its case in this way would largely collapse the distinction between secured and non-secure tenancies. It would give rise to the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area. In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met,

the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.

42. The decision of the local authority to seek possession in a homelessness case will, of course, have been taken against the background of all the advice and assistance that the provisions of Part VII of the 1996 Act require to be given to the applicant. It is unlikely, as the course of events in Ms Powell’s case demonstrates, that the reason why it has decided to take proceedings for eviction will not be known to the tenant. The right to request a review of the decisions listed in section 202 and the right of appeal under section 204 are further factors to be taken into account. They provide the tenant with an opportunity to address any errors or misunderstandings that may have arisen and to have them corrected. She will have a further opportunity to raise such issues as a judicial review challenge by way of a defence in the county court. But that is a matter for the tenant, not for the local authority. There is no need for the court to be troubled with these issues unless and until, at the request of the tenant, it has to consider whether it should conduct a proportionality exercise.

43. There may, as was pointed out in Pinnock, para 53, be cases where the local authority has a particularly strong or unusual reason for wanting to obtain possession of the property. It may think it desirable to inform the court of this fact so that it can take account of it in addition to the two given legitimate aims when it is determining the issue of proportionality. There is no reason why it should not ask for this to be done. But, if it wishes to do so, it must plead the reason that it proposes to found upon and it must adduce evidence to support what it is saying. The particular grounds on which it relies can then be taken into account in the assessment. No point can be taken against the local authority, however, if it chooses not to take this course and to leave it to the tenant to raise such points as she wishes by way of a defence.

2. introductory tenancies

44. The above analysis applies equally to introductory tenancies. It cannot be said in their case that there is nothing in the statutory scheme which prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. Section 127(2) is a direction to the contrary. But, for the reasons set out in paras 50-56 below, that subsection can be read and given effect so as to enable the county court judge to deal with a defence that relies on an alleged breach of the defendant’s rights under article 8. As to what this entails, the twin legitimate aims that were held in Pinnock to justify seeking a possession order in the case of demoted tenancies are just as relevant in the case of introductory tenancies. The question for the court will always be whether the

making of an order for possession in their case too would be lawful and proportionate.

45. The question as to what the procedural requirements are in the case of introductory tenancies must be judged against the fact that the tenant has a statutory right to request a review of the local authority’s decision to seek possession under section 129 of the 1996 Act. This strengthens the grounds for rejecting the structured approach to the issue of proportionality contended for by Mr Luba. As has already been stressed, the regime that applies to introductory tenancies has been deliberately designed by Parliament so as to withhold enjoyment of the right to a secure tenancy until the end of the trial period. In the ordinary case, as in cases of homelessness, the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances, and it is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration. If this test is not met, the order for possession should be granted.

Procedural protections

46. The Court was invited to answer a series of practical questions which were designed to obtain advice as to the course that should be followed in homelessness cases to enable the occupier to make representations before or after service of a notice to quit and to enable the tenant to know the reasons why possession was being sought. Drawing upon the practice of pre-action protocols, Mr Luba said that the procedural dimensions of article 8 could best be satisfied by requiring that, before possession proceedings are begun, the non-secure occupier knows why the proceedings are being initiated and has an opportunity to make representations to the official charged with making the decision whether to bring proceedings. The Court was also invited to answer a series of questions directed to the way claims for possession in the case of introductory tenancies should be dealt with procedurally in the county court.

47. Detailed questions as to the way claims should be dealt with procedurally are best addressed in the light of facts and circumstances arising from the way proceedings are actually being handled in practice. Otherwise there is a risk that such guidance as this Court can give will create more problems than it will solve. The statutory regimes that are in place must also be taken into account. These are not cases where the defendants were granted secure tenancies. There is no statutory obligation to give reasons with the notice to quit in homelessness cases, and the local authority does not have to justify its motives for seeking a possession

order. It is not obvious that pre-action protocols have a place in proceedings of this kind.

48. Furthermore, on the facts of the present cases there is no real issue that needs to be addressed. Ms Powell was given warnings about her rent arrears and an opportunity to attend for interview and she discussed the problem of arrears with one of Hounslow’s officers. The notice to quit was accompanied by a letter giving reasons, and the claim for possession explained that there were arrears. The common law requirement of fair notice was, very properly, observed in her case by Hounslow and none of the steps that they took have been criticised as inadequate. As for the cases of Mr Hall and Mr Frisby, the local authorities told them that they had received complaints of excessive noise, noise abatement notices were served on them against which they did not appeal and in Mr Frisby’s case offending equipment was removed from the property. The reasons for the decision to apply for a possession order were set out in the notice of proceedings as required by section 128(3) and the tenants were informed of their right to request a review, all as required by section 128(6).

49. In R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, para 103 Waller LJ said that where a review has taken place it should be the norm for the local authority to spell out in affidavits before the county court how the procedure was operated, how the hearing was conducted and the reason for taking the decision to continue with the proceedings. As Mr Luba pointed out, that suggestion was directed at the task of enabling the judge to decide whether to adjourn the claim so that a judicial review of the decision might be sought in the High Court. He invited the Court to set out a revised list of requirements that had to be satisfied in the context of a case which might raise issues of proportionality. I would, with respect, decline that invitation. Matters of that kind are more appropriate for a practice direction. In any event it is not for this court to give directions on matters of practice where the points at issue in the case do not require this to be done.

Section 127(2) of the 1996 Act

50. As already noted (see para 17, above), section 127(1) of the 1996 Act provides that the landlord may only bring an introductory tenancy to an end by obtaining an order of the court for possession of the dwelling-house. Section 127(2) provides that the court “shall” make such an order unless the provisions of section 128 apply. That section directs the court not to entertain proceedings for possession unless the landlord has served on the tenant a notice complying with its requirements. One of the things that the notice must do is inform the tenant of his right to request a review of the landlord’s decision to seek a possession order: section 128(6). Section 129 provides that, so long as the request for a review is

made no later than 14 days after the service of the possession order, the landlord must review its decision and that the review shall be carried out and the tenant notified before the date specified in the notice as the date after which proceedings for the possession of the dwelling-house may be begun.

51. On the face of it, the court has no discretion under section 127(2) as to whether or not it should make the order for possession. Its ordinary meaning is not in doubt. If the requirements of section 128 and by implication section 129 (see para 56, below) are met, the court must make the order whether or not it considers it proportionate to do so. The question that this issue raises is whether section 127(2) can nevertheless be read and given effect under section 3 of the Human Rights Act 1998 so as to permit the tenant to raise his article 8 Convention right by way of a defence to the proceedings in the county court and enable the judge to address the issue of proportionality.

52. In Pinnock, paras 68-79, the Court addressed the proper interpretation of section 143D(2) of the 1996 Act, as amended, which together with sections 143E and 143F are so similar to those of sections 127 to 129 as to indicate that they were modelled on what those sections provide. Like section 127(2) in the case of a dwelling-house let under an introductory tenancy, section 143D(2) provides when the court is asked to make an order for the possession of a dwelling-house let under a demoted tenancy that the court “must” make the order (the word “shall” is not used, but the sense is the same) if the notice and review requirements have been complied with. As the Court noted in para 68, if section 143D was construed in accordance with the traditional approach to interpretation, it was hard to see how the court could have the power either to investigate for itself the facts relied on to justify the decision to seek possession, or to refuse to make an order for possession if it considered that it would be disproportionate to do so. The same problem arises with regard to section 127(2). Unless a solution can be found under section 3 of the 1998 Act, the language of that section appears to deprive the court of almost any ability to stand in the way of a landlord who had decided to seek possession against an introductory tenant: see Pinnock, para 69.

53. In Pinnock it was held that it is open to a tenant under a demoted tenancy to challenge the landlord’s decision to bring possession proceedings on the ground that it would be disproportionate and therefore contrary to his article 8 Convention rights: para 73. This finding applies just as much in the case of introductory tenancies, so it must be concluded that, wherever possible, the traditional review powers of the court should be expanded to permit it to carry out that exercise in their case too. The court’s powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering the facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view: Pinnock, para 74.
54. As was observed in that case, however, much the more difficult question is whether it is possible to read and give effect to section 127(2) in a way that would permit the county court judge to do this. It is difficult because the wording of the subsection indicates that its purpose is to ensure that the court does nothing more than check whether the procedure has been followed. An introductory tenancy, after all, has been deliberately deprived of the protections that apply to a secure tenancy. It could be argued, as it was in Pinnock, that for the court to assess the proportionality of the decision to bring and continue the possession proceedings would go against the whole import of the section. It would amount to amending it rather than interpreting it: para 75.