Hounslow v Powell; Leeds v Hall; Birmingham v Frisby  UKSC 8
The Supreme Court has heard three more claims in relation to various types of possession claims where the tenants are not secure and has decided that the Article 8 ECHR right to a home means that the court has a power to consider a proportionality defence to a possession claim. This means that all social landlords will have to revise their procedure for bringing possession claims and expect a far higher level of scrutiny from the courts.
The cases involved introductory tenancies under part V of the Housing Act 1996 or homelessness licences under part VII. This follows on from Manchester v Pinnock (2010) which related to demoted tenancies. The details do not matter in themselves: what is important is that it now seems almost certain that all possession claims by public bodies (which following Weaver v L & Q include most social landlords) are going to be covered, including Ground 8 claims (8 weeks arrears of rent).
In the future it appears that possession claims are going to divide into two groups:
- Discretionary claims – eg Ground 10 arrears of rent – where the court has to be satisfied that it is reasonable to make an order. The court has a discretion, and makes the decision. These cases are not affected, as the court already decides, as a matter of course, on the proportionality of an order.
- Mandatory claims, where the court has no discretion on making the order, provided that the Landlord has followed the correct procedure. This includes the mandatory grounds 1-8 of Housing Act 1996, s21 claims for possession of assured shortholds, and claims for possession of demoted tenancies, introductory tenancies, homelessness licences, and other similar claims, including the new mandatory grounds at the end of the fixed term tenancies being proposed by the government.
In Mandatory claims the court will be able to decide whether making an order is proportionate, and if it is not can decline to do so, even if there are no other grounds to refuse.
The procedure is meant to be:
- The court only considers proportionality if it is raised by the Defence;
- The court must consider that the issue is seriously arguable;
- The court then decides if making an order for possession is a proportionate means of achieving a legitimate aim – eg to vindicate the Landlord’s property rights, or enable the landlord to allocate and manage its housing stock.
- Any decision must set out a reasoned judgement on how a fair balance is being struck.
However, we have considerable doubts on how this will operate in practice, in a busy housing list before a harassed District Judge or Deputy. Already anecdotal evidence seems to indicate that some Defence lawyers raise proportionality in every case, and ask for an adjournment so they can plead it, while Judges frequently raise these points themselves, and seem to consider that this is the same test as Discretionary claims, which it is not.
Perhaps there will be further guidance, or alterations to the rules to try and sort things out. However, until things sort themselves out the clear guidance must be to treat all possession claims as discretionary and prepare the evidence accordingly. Why is it proportionate or reasonable to make an order? And consider whether it might be better to bring the claim under one of the truly discretionary grounds – such as Ground 10 rather than Ground 8, and sidestep the problem.