Proportionality in possession cases – another update

Avid followers of the Emsleys Housing Law Blog are only too well aware of the ability of a tenant of social housing to raise a defence to a possession claim under Article 8 of the European Convention of Human Rights – is the decision of the housing provider proportionate? I.e. is the means legitimate for the purpose of achieving the outcome?

There have been a multitude of cases in the UK’s highest Court where this issue has been thrashed out. In short,  a tenant can successfully raise a defence, in exceptional circumstances, where the housing provider cannot demonstrate that their decision to seek possession is proportionate.

Our previous blogs have suggested that a file note be made as part of internal possession  processes to confirm that proportionality has been considered and the decision to seek possession has been approved.

Previous cases on the issue have gone further, stating that the housing provider can consider proportionality at any stage during the possession claim and then rely on this consideration successfully in defeating a tenant’s Article 8 defence.

But – are there times where a housing provider might have to consider proportionality more than once?

This was the question posed in the recent case of JL v Secretary of State for Defence (SS) [2012]. Here, a possession Order had been made against JL ,who occupied forces accommodation,  on 5 May 2009. On account of her own disability, and that of her child and grandchild who lived with her, the SS did not seek to enforce the Order and instead worked with the local Council to try to re-home JL and her family.

Due to JL’s failure to engage in the process, the Landlord successfully applied for a warrant of possession on 9 March 2011.

JL sought a judicial review of the decision of the Landlord to apply for a warrant. One of the grounds that JL sought a review of was that proportionality should have been considered at the time when the  decision was made to enforce the possession Order.

The Court found that in the majority of possession cases this would not be necessary – if proportionality had already been considered or the tenant had not raised the issue where it could have been considered, i.e. the possession hearing, it should not have to be considered again at the warrant stage.

However, it may be necessary to consider proportionality again at the warrant stage if the tenant’s circumstances change substantially between the making of the possession Order and the warrant application.

In this case, there had been a substantial lapse in time between a possession Order being made against JL and the  Landlord applying for a warrant. The Court found that JL was entitled to have the issue of proportionality addressed again.

This case demonstrates that the principle of proportionality continues to evolve; and will in all likelihood continue to do so for the foreseeable future.

If you have a question or need the advice of the Emsleys Housing Law Team, please contact us on 0113 260 3115 or email us at

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