Manchester City Council v Pinnock [2010] UKSC 45

Mr Pinnock's secure tenancy was demoted following anti-social behaviour by his family. Manchester City Council later sought possession. The Supreme Court held that courts must be able to assess proportionality under article 8 before making possession orders, but dismissed his appeal on the facts.

Facts

Manchester City Council had granted Cleveland Pinnock a secure tenancy of a house in Longsight in 1978, where he lived with his partner Christine Walker and their five children. Following serious and persistent anti-social behaviour by Ms Walker and the children (though not by Mr Pinnock himself), the Council sought possession in 2005. Recorder Scott Donovan declined to make an outright possession order, considering it ‘truly draconian’ given Mr Pinnock’s blameless conduct, but instead made a demotion order under section 82A of the Housing Act 1985 in June 2007.

On 6 June 2008, the day before the demotion would have lapsed, the Council served a notice under section 143E of the Housing Act 1996 indicating it would seek possession, relying on further incidents involving Mr Pinnock’s sons (Clive resisting arrest at the property; Devon causing death by dangerous driving nearby; and Orreon committing a nearby burglary). A review panel upheld the decision. Judge Holman in the County Court made an outright possession order, holding his role was limited to conventional judicial review and that he could not entertain an article 8 argument. The Court of Appeal (Stanley Burnton LJ) took an even more restrictive view, holding that section 143D(2) confined the County Court to considering procedural compliance only.

Issues

The Supreme Court identified four principal issues:

• Whether the jurisprudence of the European Court of Human Rights requires a domestic court, before making a possession order in respect of a person’s home at the suit of a local authority, to be able to consider the proportionality of eviction under article 8 and resolve relevant factual disputes.
• What such a conclusion means in practice for possession claims.
• Whether the demoted tenancy regime, particularly section 143D(2) of the Housing Act 1996, can be interpreted compatibly with article 8.
• How the appeal should be disposed of on the facts.

Arguments

Appellant (Mr Pinnock)

It was argued that, by virtue of article 8 read with article 6, the County Court should have had jurisdiction to determine whether possession was ‘necessary in a democratic society’, to resolve disputed facts, and to form its own view of proportionality rather than applying conventional judicial review. Either section 143D(2) should be read down under section 3 HRA, or a declaration of incompatibility should be made. On the facts, eviction of a pensioner and his partner from their home of over 30 years, when the children no longer lived there and no incidents had occurred since February 2008, was disproportionate.

Respondent (Manchester City Council)

The Council relied on the existing House of Lords authorities (Qazi, Kay, Doherty) which held that personal-circumstances article 8 defences should be struck out. It contended that section 143D(2) limited the court to checking procedural compliance, that the County Court lacked jurisdiction to conduct a wider review, that section 17 of the Crime and Disorder Act 1998 supported the Council’s stance, and that section 6(2) HRA protected the Council’s decision.

Intervener (Secretary of State)

The Secretary of State submitted that a local authority’s aim in seeking possession should be a ‘given’, so that the court need not require justification of the authority’s purpose, focusing instead on the occupier’s personal circumstances.

Judgment

The Strasbourg jurisprudence and departure from House of Lords authority

The Court reviewed Connors v UK, Blecic v Croatia, McCann v UK, Cosic v Croatia, Zehentner v Austria, Paulic v Croatia, and Kay v UK. From these the Court extracted clear propositions: any person at risk of dispossession of their home by a local authority must in principle be able to raise proportionality before an independent tribunal; traditional judicial review is inadequate for resolving sensitive factual issues; multi-stage proceedings must be considered as a whole; and a finding of disproportionality renders eviction unlawful while it obtains.

Although section 2 HRA requires the courts only to ‘take into account’ Strasbourg decisions, where there is a clear and constant line of authority not inconsistent with fundamental aspects of domestic law and not based on misunderstanding, this Court should follow it. The Court accordingly departed from the majority view in Qazi, Kay and Doherty, holding that a court asked to make a possession order in respect of a person’s home at the suit of a local authority must be able to assess proportionality and resolve relevant factual disputes.

Exceptionality and practical guidance

The Court declined to adopt the language of ‘highly exceptional cases’, describing exceptionality as ‘an outcome and not a guide’. It emphasised that local authority property rights and housing management duties will normally support proportionality, and that the authority’s aim need not routinely be pleaded. The court should consider article 8 only where raised by the occupier, initially summarily; only where it could affect the order should it be entertained further. Article 8 might justify extension, suspension, or refusal of possession.

Interpretation of section 143D(2)

Although on a traditional reading section 143D(2) appears to limit the County Court to checking procedural compliance, applying section 3 HRA the Court held that the provision could and should be read to allow the County Court to exercise such powers as are necessary to consider and give effect to any article 8 defence. The Court reasoned that ‘procedure’ inherently includes lawful procedure, including compliance with natural justice and article 8. Section 7(1)(b) HRA further confers the necessary jurisdiction. Applying Wandsworth LBC v Winder, public law challenges to the decision to bring or continue possession proceedings can be raised in the County Court possession proceedings themselves. The Court disapproved aspects of Manchester City Council v Cochrane [1999] 1 WLR 809.

Section 17 Crime and Disorder Act 1998 and section 6(2) HRA

Section 17 is expressly without prejudice to other obligations and does not displace article 8 considerations. Section 6(2) HRA does not apply because section 143D(1) can be given effect compatibly with article 8 (e.g. by bringing proceedings that are proportionate); the Council was therefore obliged to consider proportionality.

Application to the facts

The Court found there were three serious incidents within a year under the shadow of the demotion order: Clive resisting arrest at the property; Devon causing death by dangerous driving nearby (with Ms Walker blaming the police); and Orreon’s burglary near the property. Grounds need not constitute breaches of the tenancy agreement; later events not in the notice could be relied upon; and a bad reason in the notice does not destroy the landlord’s right unless it infects good faith. Given the extraordinary history, the demotion order representing a last chance, the children’s continuing visits to the property, the interests of neighbours, and the Council’s housing management responsibilities, the decision was neither unreasonable nor disproportionate. It was unnecessary to remit for fact-finding on whether Devon lived at the property or whether Clive’s resistance to arrest actually caused nuisance.

Implications

This decision marks a significant shift in domestic possession law. Where a local authority (or other social landlord that is a public authority under the HRA) seeks possession of a person’s home, the court must have the power to assess article 8 proportionality and to resolve relevant factual disputes itself, rather than applying only conventional judicial review. Section 143D(2) of the Housing Act 1996 is to be read compatibly with article 8 via section 3 HRA.

The Court was careful to limit its conclusions: nothing said bears on cases where the landowner is a private party; article 8 only arises where raised by the occupier and should be considered summarily in the first instance; and in the great majority of cases an authority’s property and housing management rights will support proportionality. Demoted tenancy possession claims, in particular, will rarely succeed on article 8 grounds because the proportionality of the prior demotion order forms part of the overall procedural picture.

The decision matters to social housing tenants (especially introductory and demoted tenants and homeless applicants), to local authorities and registered social landlords, and to lower courts conducting possession proceedings. It may require revisiting of statutory and procedural provisions including section 89 of the Housing Act 1980 and certain provisions of CPR 55. The Court flagged that further guidance would follow in Salford City Council v Mullen. The judgment also confirms that vulnerable occupants (through mental illness, disability, poor health or frailty) are more likely to have viable proportionality arguments, and may require the authority to explain why alternative accommodation is not being secured. The wider importance lies in aligning English possession law with the consistent Strasbourg jurisprudence following McCann and Kay v UK, ending the previous bar on personal-circumstances article 8 defences.

Verdict: Appeal dismissed. The order for possession against Mr Pinnock was upheld, although on reasoning differing from the courts below. The Supreme Court held that section 143D(2) of the Housing Act 1996 must be read compatibly with article 8, so that a County Court can assess proportionality and resolve factual disputes, but on the facts the possession order was proportionate.

Source: Manchester City Council v Pinnock [2010] UKSC 45