Pinnock & Beyond! – a note from the Past

Since the Court of Appeal decision in Weaver v London & Quadrant (2009) which decided that most social landlords were public bodies for the purpose of Human Rights law, especially when it came to Article 8 (the right to a home) it has been clear that there were going to have to be changes in how all the mandatory grounds of possession – those that didn’t depend on the discretion of a judge – were handled, in order to avoid challenges on public law grounds. It was argued that if a judge didn’t make the final decision because his hands were tied by the legislation the landlord’s decision to issue the proceedings could be challenged as a breach of (usually) article 8.

The standard required for the landlords, however, are not too rigorous – you just have to have a fair procedure and not make unreasonable decisions.   But what is “unreasonable” and in particular does it incorporate the Human Rights concept of “proportionality”? It might be reasonable to try and recover possession of your house if the tenant is in arrears of the rent, but is it proportionate if he is only a few pounds over the 2 month limit for Ground 8 HA claims and he’s lived there for 20 years?

Up until now this has been a distant threat anyway as these sort of challenges have had to be made by way of Judicial Review applications in the Administrative Court, and  few tenants can afford to do that. The worst that might happen in the County Court possession case was that if such an application was made the court might adjourn the hearing pending the result of an application for permission for JR, which was rarely granted.

Well, things are set to change. The Supreme Court decided on 3rd November in Manchester CC v Pinnock [2010] UKSC 45 that in a claim over a demoted tenancy the County Court had jurisdiction to decide the proportionality point – was the decision to go for possession disproportionate, bearing in mind the landlord’s other duties and requirements? This should be decided summarily and the objection dismissed unless it clearly had merit. If it had then this might mean that a claim which was otherwise irresistible resulted in an extended period before possession, or a suspended order, or even the claim being dismissed.

Does this matter? There are very few claims involving demoted tenancies. The Supreme Court declined to give general guidance, pointing out that it would shortly hear Salford v Mullens covering introductory tenants and homelessness non-secure tenants and others and that would be a better case to use for guidance. The case was due to be heard on 23/24 November but the decision may be some time off, and the final details must wait until then.

However, there is some clear guidance that can be given at this stage to avoid potential problems in the future. And it is all good practice in any event:

  • The claims most at risk in the social housing area are
    • Ground 8 HA 88 (2 months rent arrears)
    • S 21 HA 88 (ending ASTs – used for intermediate and introductory tenancies)
    • Notices to quit or forfeiture brought by fully mutual housing associations, where there is no security of tenure
    • Homelessness licences, demoted tenancies
    • Claims against trespassers.
  • In each case the landlord should
    • Gather information about the facts – how much rent is in arrears, and why? What does the tenant do? Have they any children? Are there disabilities etc? And record this.
    • A manager should decide how to proceed and set down the reasons for their decision in writing.
    • If circumstances change significantly a manager should review the decision and again record their decision and reasons in writing.
  • It may help to have written guidance but ultimately somebody must be allowed to look at the bigger picture and make a decision which they feel they can justify. This must include being proportionate, and taking into account the effect that the decision will have on the tenant as well as the extent of the fault – the amount of the arrears, the degree of disturbance or whatever.
  • Some cases are easy – a Ground 8 claim against a shared ownership tenant with a mortgagee is virtually always justified, as the mortgagee will pay up and the tenant’s home is not seriously at risk. And there are very few times when it is unreasonable to remove squatters. Here the paperwork can be pretty simple.
  • But other cases need proper detailed recording if you are to avoid the risk of having the claim upset, or seriously delayed, by a successful challenge in the County Court. And it may be easier in some cases to proceed under a discretionary ground (eg Ground 10) when it is the Judge who has to make the decision.

There are likely to be some changes in court procedure to take this into account and maybe more guidance, which we will pass on as soon as possible.

And those in the know suspect that something similar may spread into the private landlord field, as Human Rights make little distinction when it comes to such basic things as having a home.

[Post prepared 23.11.10]

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Pinnock on Steroids

Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] 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:

  1. The court only considers proportionality if it is raised by the Defence;
  2. The court must consider that the issue is seriously arguable;
  3. 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.
  4. 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.