Civil procedure - Housing - Local government - Demoted tenancies

Manchester City Council v Pinnock (No.2): SC (Lord Phillips (president), Lord Hope (deputy president), Lord Rodger, Walker, Lady Hale, Brown, Lord Mance, Lord Neuberger, Lord Collins (Justices of the Supreme Court)­): 9 February 2011

The Supreme Court was required to consider the terms of an order to be made after its decision in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 3 WLR 1441.

The appellant demoted tenant (P) had challenged an order for possession made in favour of the respondent local authority, requiring him to give up possession by 12 January 2009.

He asserted that the judge at first instance should have taken into account the proportionality of such an order under article 8 of the European Convention on Human Rights 1950. The Supreme Court agreed that proportionality should have been taken into account but concluded that possession was proportionate.

The local authority submitted that if the Supreme Court simply upheld the original possession order, it would produce an unjust result due to the creation of a further demoted tenancy under the Housing and Regeneration Act 2008.

The local authority argued that it should not have to incur the expense of further possession proceedings, and the court should therefore vary the original possession order to adjust the date of possession.

P argued that section 89(1) of the Housing Act 1980 prevented the judge from making an order for possession which took effect more than six weeks after the order, and the Supreme Court could not amend the original order to conflict with section 89(1).

Held: (1) The original order for possession took effect on 12 January 2009. Under section 143D(3) of the Housing Act 1996 that meant that P’s demoted tenancy came to an end on that date and he became a tolerated trespasser.

However, section 299 of the 2008 act abolished the concept of tolerated trespass in relation to various types of tenancy, including demoted tenancies, by providing that where an order for possession was made, the tenancy ended on the date that the order was executed rather than the date on which the tenant was to give up possession pursuant to the order.

Therefore, if the original possession order was confirmed a new demoted tenancy would be created in P’s favour due to the effect of paragraphs 16, 19 and 26 of schedule 11 to the 2008 act (see paragraphs 6-8 of judgment).

(2) There might be force in the technical point made by P, but there was no need to consider it because the wide terms of rule 29(1) of the Supreme Court Rules 2009 allowed the Supreme Court to adopt an ­alternative way of giving effect to the local authority’s justified concerns.

The original order for possession would be set aside and a fresh order for possession substituted to take effect on 10 March 2011. The effect of that would be to preserve P’s original demoted tenancy which had continued pending the resolution of the instant proceedings.

It would come to an end when possession was obtained against him pursuant to the new order for possession.

That was ­consistent with the Supreme Court’s earlier reasoning in which it had decided that the judge and the Court of Appeal had reached their conclusions on an erroneous basis.

Thus the order for possession made below was effectively overruled and the Supreme Court had concluded that it should make its own order for possession.

If the case had been remitted to the county court, the original order would have been set aside and the county court would in due course have made a fresh order for possession. It would be anomalous if a different result was obtained because the

Supreme Court decided to make the order for possession without remitting it (paragraphs 12-14).

Judgment accordingly.

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 first ­intervener: Jan Luba QC (instructed by in-house solicitor) for the second intervener.