On 23 February the Supreme Court gave judgment in what was effectively episode two of the housing possession proportionality drama (see the conjoined appeal in London Borough of Hounslow v Powell [2011] UKSC 8).

Back in November 2010 the Supreme Court had made an important decision on the interplay between article 8 of the European Convention on Human Rights (right to respect for private and family life) and domestic housing law.

The court had then held that when considering public authority housing possession applications, courts may, where appropriate, assess the proportionality of making the order sought and in so doing resolve any relevant dispute of fact (Manchester City Council v Pinnock [2010] UKSC 45).

The decision in Pinnock was significant for clarifying and advancing the law.

Before that, the majority view of the law lords had been that personal interests safeguarded by article 8 must be taken to have been sufficiently safeguarded by fulfilling the statutory or common law requirements for recovery of possession by the landowner.

Powell (which was heard with two other appeals: Leeds City Council v Hall and Birmingham City Council v Frisby) looked, among other things, at various practicalities arising from the need to have regard, where appropriate, to article 8.

Usefully for hard-pressed housing authorities, the Supreme Court was able to place the issue in sensibly proportionate context.

Both Pinnock and Powell concerned housing possession proceedings where the occupier was not a secure tenant under part IV of the Housing Act 1996.

Given that an article 8 proportionality review can potentially be required in possession proceedings, what shape should this review take?

Lord Hope put this in perspective, stating that the court will have to consider whether a possession order would be proportionate only if: (i) (as held in Pinnock) the issue has been raised by the occupier; and (ii) it has crossed the high threshold of being seriously arguable.

The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim.

But while in most cases it will be taken for granted that a claim by a person in lawful occupation to remain in possession will potentially attract the protection of article 8 (since in accordance with convention jurisprudence a person’s ‘home’ requires ‘sufficient and continuous links with a specific place’), this may well be an issue in relation to an occupier ‘who has only recently moved into accommodation on a temporary or precarious basis’.

Article 8 comes into play only where a person’s ‘home’ is under threat.

As to homelessness, Lord Hope pointed out that, since local authorities manage their housing stock for the benefit of the whole community, the decisions they make affect the interests of the community as a whole.

The court is not equipped to make these decisions and in most cases ‘the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order’.

The proportionality of making a possession order will be supported by the fact that doing so would: (a) vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties regarding the allocation and management of its housing stock.

But if the court does entertain a seriously arguable proportionality issue raised by the occupier, it must then ‘give a reasoned decision as to whether or not a fair balance would be struck by making the order... sought by the local authority’.

Therefore, it is ‘only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality’.

And if ‘this test is not met, the order for possession should be granted’.

Lord Phillips pointed out that, while article 8(1) gives everyone a right to respect for their home, there is no duty on a state or a public authority within a state to provide a home, or to sort out a person’s housing problems.

He highlighted the fact that proportionality safeguards are in fact incorporated into the statutory scheme.

So there are ‘secure tenants’ who cannot be dispossessed unless a court is satisfied (among other things) that it is reasonable that they should be.

And while parliament has deliberately created classes of tenants without security of tenure, nevertheless these do have a degree of substantive and procedural statutory protection.

Parliament has nevertheless sought to place the decision on whether or not such tenants should be dispossessed fairly and squarely on the local authorities themselves.

This is to avoid the delay and expense that may occur if questions of proportionality were routinely pursued before the courts.

As for introductory tenancies (the purpose of which is to require the tenant to demonstrate that they are a good tenant in both behaviour towards neighbours and obligations to the landlord before a secure tenancy is granted), the decision to dispossess the tenant must be reasoned.

But, as the Supreme Court pointed out in Pinnock, it will only be ‘in very highly exceptional cases’ that it will be appropriate for the court to consider a proportionality argument.

On the issue of possession generally, Lord Phillips did not suggest that there is any initial burden on the authority to justify to the court its application for a possession order or its reason for seeking one.

He considered that the tenant must be informed of the reason for the authority’s action so that the tenant can, if so minded, attempt to raise a proportionality challenge.

Lords Rodger, Walker, Brown, Collins and Lady Hale agreed with the judgments of lords Hope and Phillips.

So while in both Pinnock and Powell the Supreme Court has acknowledged the capacity of the courts to consider proportionality submissions where appropriate, their lordships have equally highlighted the in-built statutory proportionality protections.

Consequently, there needs to be a seriously arguable contention from the tenant before proportionality will normally be accepted as an issue in the proceedings.

The Supreme Court in Powell also dealt with a range of other relevant issues in the above context.

Those practising in this area will therefore wish to study the judgment with care.

Legal professional privilege

On 1 March the First-Tier Tribunal (FTT) upheld a finding of legal professional privilege concerning the decision by North Somerset County Council to withhold legal advice on a planning control matter (see Skinner v. Information Commissioner and North Somerset Council, Case No. EA/2010/0184).

In issue (among other things) was regulation 12(5)(b) of the Environmental Information Regulations 2004 (SI 2004 No. 3391).

This enables a public authority to refuse to disclose information to the extent that its disclosure would adversely affect ‘the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature’.

However, this is provided that ‘in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information’.

The complainant (who had complained to the council about an alleged breach of planning control at a residential property close to his own) contended that ‘in the interest of openness and transparency local authorities should be clear in their dealings and provide clear, unambiguous explanations with legal advice, if taken, to explain how a decision was made’.

However, the information commissioner found (among other things) that regulation 12(5)(b) was engaged and that the public interest in maintaining the exception outweighed the public interest in disclosing the information.

The FTT, in upholding the commissioner’s decision, referred to two previous tribunal decisions.

In Malcolm Kirkcaldie v Information Commissioner and Thanet District Council (EA/2006/001), the tribunal had stated that the purpose of the regulation 12(5)(b) exception ‘...exists in part to ensure that there should be no disruption to the administration of justice, including the operation of the courts and no prejudice to the right of individuals or organisations to a fair trial’.

To ‘... achieve this it covers legal professional privilege’.

In the instant case the tribunal considered that the public interest in disclosure did not outweigh the interest in maintaining the exception.

This was because the advice was recent and ‘very much live’, since the appellant had indicated that he intended to challenge the council’s decision that there had been no breach of planning control.

Given the complainant’s wish for ‘clear, unambiguous explanations’ of the council’s decision ‘with legal advice’, the tribunal agreed with comments in Rudd v Information Commissioner and the Verderers of the New Forest (EA/2008/0020).

The tribunal had then noted that a legal opinion is not a definitive interpretation of the law and, whatever its contents, ‘it is unlikely to resolve any uncertainty, it would just add to the debate’.

For the ‘... only true way to resolve the situation is a ruling from a court’.

In reaching its view that the legal advice in question was privileged, the tribunal said: ‘Particularly when litigation is in prospect, legal advice is as likely to discuss a range of uncertainties as it is to provide certainty.

'It may well assess the relative merits of a range of litigation tactics and advise the client of the possible consequences of these.

'It is in the interests of the proper administration of justice that such advice should be exempt from disclosure and it would take a substantial public interest to the contrary to justify disclosure.

'In the nature of privileged legal advice it is unlikely to provide the unambiguous clarity for which the appellant hoped in making his request for the information.’

However, as previously noted (see [2010] Gazette, 23 September, 14), local authority lawyers seeking to give privileged legal advice to their employing authorities do need to ensure that the nature and context of their communication is clear and explicit.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors