Housing

Landlord and tenant – Human rights – Local government

Manchester City Council (respondent) v Pinnock (appellant): SC (Lords Phillips, Hope, Rodger, Walker, Brown, Mance, Neuberger, Collins, Lady Hale): 3 November 2010

The appellant demoted tenant (P) appealed against a decision ([2009] EWCA Civ 852, [2010] 1 WLR 713) to uphold a possession order made under section 143D of the Housing Act 1996.

The respondent local authority had obtained a demotion order in respect of P’s secure tenancy following serious allegations against his partner and children. It claimed possession on the basis of further alleged antisocial behaviour. P stated that a possession order would violate his rights under article 8 of the European Convention on Human Rights 1950. The county court and Court of Appeal considered that the order should be made and that the courts’ role did not extend to considering whether article 8 had been complied with. P argued that although the majority in the House of Lords in Qazi v Harrow LBC [2003] UKHL 43, [2004] 1 AC 983, Ka Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367 had held that a residential occupier against whom possession was sought by a local authority could not raise a proportionality argument under article 8, there was a consistent series of European Court of Human Rights decisions which unambiguously supported the minority view in the House of Lords cases, making it appropriate to depart from them.

Held: (1) The ECtHR jurisprudence established that: any person at risk of being dispossessed of his home at a local authority’s suit should in principle have the right to question the measure’s proportionality under article 8, even if his right of occupation under domestic law had ended, McCann v UK [2008] 2 FLR 899 ECHR, Cosic v Croatia (28261/06), unreported 15 January [2009] ECHR, Zehentner v Austria (20082/02), unreported, 16 July [2009] ECHR, Paulic v Croatia (3572/06), unreported 22 October [2009] ECHR and Kay v UK (37341/06) Times, 18 October [2010] ECHR applied; a procedure limited to considering proportionality through traditional judicial review without the court making its own factual assessment in an appropriate case was inadequate, Connors v UK (66746/01) [2005] 40 EHRR 9 ECHR, McCann and Kay v UK applied; where the measure included proceedings involving more than one stage, the proceedings as a whole had to be considered to see if article 8 had been complied with, Zehentner applied; if the court concluded that it would be disproportionate to evict a person, it would be unlawful so long as that conclusion obtained. The ECtHR seemed also to have franked the view that it would only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant had no right under domestic law to remain, McCann and Kay v UK considered (see paragraph 45 of judgment). The Supreme Court was not bound to follow every ECtHR decision: that would be impractical and sometimes inappropriate, as it would destroy its ability to engage in constructive dialogue with the ECtHR. However, where there was a clear and constant line of decisions whose effect was not inconsistent with some fundamental substantive or procedural aspect of UK law, and whose reasoning did not appear to overlook or misunderstand some argument or point of principle, it would be wrong for the court not to follow that line. There was no question of the ECtHR jurisprudence having such inconsistency, as shown by the minority opinions in the House of Lords and domestic laws already having moved towards the European jurisprudence in Doherty. Therefore, if UK law was to be compatible with article 8, where a court was asked to make an order for possession of a person’s home at the suit of a local authority, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant factual dispute, Qazi, Kay v Lambeth and Doherty not followed (paragraphs 48-49). It was unsafe only to consider proportionality in exceptional cases: the question was always whether the eviction was a proportionate means of achieving a legitimate aim (paragraphs 51-52).

(2) It was impossible to conceive of circumstances at the stage of making a demotion order where article 8 would not be satisfied by the plain words of the relevant statute. Greater problems arose when the court was asked to make a possession order against a demoted tenant. As article 8 required the court to consider proportionality, section 143D(2) had to be read as not excluding its power to do so, if at all possible. A court had jurisdiction under normal judicial review principles to satisfy itself that the local authority had acted reasonably when deciding to bring and continue possession proceedings. It followed that it was open to a demoted tenant to challenge the local authority’s decision on the ground that it was disproportionate under article 8; further, the ECtHR jurisprudence required the court considering such a challenge to have the power to assess any relevant facts. Accordingly, the court’s traditional review powers should be expanded to permit it to carry out that exercise. Section 143D(2) was to be read accordingly. Section 7(1)(b) of the Human Rights Act 1998 conferred the necessary jurisdiction on county courts as well as the High Court. Tenants could challenge possession proceedings in the proceedings themselves, even if they were in the county court, Wandsworth LBC v Winder (No1) [1985] AC 461 HL applied and Manchester City Council v Cochrane [1999] 1 WLR 809 CA (Civ Div) disapproved (paragraphs 65-88).

(3) On the facts, it had been proportionate to make the order against P.

Appeal dismissed.

Richard Drabble QC, James Stark (instructed by Platt Halpern) for the appellant; Andrew Arden QC, Jonathan Manning (instructed by in-house solicitor) for the respondent; Daniel Stilitz QC, Ben Hooper (instructed by Treasury Solicitor) for the intervener Secretary of State for Communities and Local Government; Jan Luba QC (instructed by in-house solicitor) for the intervener Equality and Human Rights Commission.