Pinnock MkII – A further ruling on proportionality

Following the recent decision in Pinnock, the Supreme Court has recently decided 3 more cases which both seem to support the Pinnock ruling and add to it.

The three cases in question were (1) Hounslow LBC v Powell; (2) Leeds City Council v Hall; and (3) Birmingham City Council v Frisby.

By way of background, the first case involved a homeless licensee against whom possession proceedings were issued for arrears of more than £3,500. The latter two cases concerned possession proceedings brought against introductory tenants for anti-social behaviour and noise nuisance.

In each case, the occupiers sought to rely on Article 8 on the basis that the Court should be required to consider the proportionality of making an Order for possession.

Although the ruling in Pinnock dealt with a specific type of occupation, i.e. a demoted tenancy, it was almost unthinkable that the Court would decide that Article 8 could not apply to the three cases. In its judgment, the Court provided more than a hint of what may follow: “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.”

However, the Court further stated that the protection afforded by Article 8 should only be considered by the Court if it is raised by the occupier and, even then, it should only be considered summarily.

The Court then laid down the test for establishing whether the granting of an Order is a proportionate way of the local authority achieving a legitimate aim, namely an aim which must include both:

(a)     vindicating the authority’s ownership rights; and

(b)     enabling the authority to comply with its public duties in relation to the allocation and management of its housing stock.

However it is worth noting that, unless the occupier raises the issue of Article 8, there is a presumption that the local authority is pursuing such a legitimate aim.

On deciding the three cases

Following Pinnock, Hounslow LBC had offered Ms Powell alternative suitable accommodation on a non-secure basis, having already obtained an Order for possession. It was therefore argued, successfully, that the original Order for possession should be set aside on the basis that the proportionality of Hounslow’s actions should have been considered.

Similarly, Mr Hall had been offered a secure tenancy by Leeds after the Pinnock ruling. Although the Supreme Court held that Mr Hall had presented no grounds to suggest a seriously arguable case on proportionality, the fact that Leeds had offered him a new secure tenancy almost pre-determined that the making of a possession order would not be proportionate.

Finally, Mr Frisby’s appeal was dismissed on the basis that he had not presented any seriously arguable grounds for a proportionality case, given that he hadn’t sought a review of the Council’s decision to seek possession; nor had he attended the resumed review hearing of the Council’s decision.

The position now

Following the Supreme Court’s ruling, the issue of proportionality can be summarised as follows:

  1. Proportionality will be a potential issue in any claim by a local authority seeking possession;
  2. However, it will only be considered if it is raised by the occupier;
  3. If it is not raised, there will be a presumption that a local authority is acting in pursuit of a legitimate aim – the authority need not advance a positive argument as to proportionality;
  4. Even if it is raised by an occupier, the Court should deal with the issue summarily; and
  5. The threshold for demonstrating a “seriously arguable” case on proportionality is a high one

For the time being, at least, whilst it would seem that most cases which involve an occupier losing their home at the instigation of a local authority will invoke an argument of proportionality, such arguments will have to go beyond the ordinary to be successful.

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