Raise the roof

After a decade of ping pong between the European Court of Human Rights and the domestic courts, the Supreme Court has finally accepted in two recent cases '“ Manchester v Pinnock [2010] UKSC 45 and Hounslow v Powell and other [2011] UKSC 8 '“ that proportionality defences can be run in our domestic courts. But make no mistake: neither Pinnock nor Powell should be seen as a red light to run a defence in every case where the tenant/ occupier has no legal right to remain in the premises. A successful proportionality defence will still be the exception.

Both decisions relate to cases where the landlord is a local authority landlord or a social landlord who is a public authority under the HRA 1998 (see R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587). The Supreme Court left open as to whether proportionality could be relied upon when defending against claims for possession by private bodies or persons.

In Pinnock the court acknowledged that it is itself a public authority under the HRA 1988 but did not decide whether a court should refuse to grant possession if it considers that to do so would be disproportionate regardless of the nature of the parties before it.

The defence of proportionality will only arise where the property is the defendant's 'home'. Thus the trespasser who has only been in occupation for two days is likely to find that there is no basis for a defence at all as his/her article 8 rights are not engaged.

The onus is on the defendant to raise the defence. This leads to some interesting issues for district judges with unrepresented defendants. It also places an obligation on duty advisers to ensure that they investigate this aspect and raise it with the court at the first instance. It is only where there is a seriously arguable case that the matter will proceed. There is no guidance as yet as to how county courts should address these defences. Different courts will no doubt adopt different procedures unless or until there are any new CPRs or practice directions.

'Protection of rights and freedoms'

The landlord will be taken to be pursuing a legitimate aim, namely 'the protection of rights and freedoms of others', where it is a) seeking to vindicate its ownership rights; and b) seeking to comply with its duties in relation to the distribution and management of its housing stock for the benefit of others. There is no need in most cases for the local authority to explain and justify its reasons for seeking possession. If the landlord wants to rely on other factors to justify obtaining possession it must plead the same.

In Powell Lord Hope and Lord Phillips disagreed about the extent to which the tenant/occupier should have notice of the reasons for seeking possession. Clearly where the claim relates to a demoted tenancy or introductory tenancy, the tenant will know in advance of the reasons. However, in other cases this may not be so. Lord Hope did not consider that reasons had to be given, whereas Lord Phillips considered that reasons for seeking to evict a non-secure homeless person should be given. In practice most landlords do provide reasons. If no reasons are given, the adviser should seek the same.

What orders can the court make faced with a proportionality defence? It can order possession. It can dismiss the claim for possession on the basis that an order would infringe article 8 or it can stay possession for up to six weeks relying on section 89 of the Housing Act 1980. What the court cannot do is postpone possession for more than six weeks. Nor can the parties agree to do so as this would be contrary to section 89.

Special occasions

Pinnock and Powell have established that proportionality can be run in relation to demoted tenancies, introductory tenancies and where the tenants are non-secure tenants under homeless provisions. The court considered that it would only be in rare circumstances that defences in these instances would succeed. However, at the hearing the court can consider the facts as well as the circumstances of the occupier and make findings of fact for itself. That ability to reconsider the facts found by the local authority is a very important consideration for a tenant in these cases.

Examples of other occasions when these defences might arise include where possession is sought on mandatory grounds, non-statutory succession, termination of a joint tenancy by one party serving notice to quit, failure to follow internal policies, promises that are akin to legitimate expectation, and vulnerable occupiers. This is not to say that defences in such cases will succeed but that these are instances where there is now a possible defence whereas previously there was none.

An interesting point remains as to the status of an occupier who succeeds on proportionality. Introductory tenants and demoted tenants may become secure tenants but others may find themselves occupying as tolerated trespassers. Lord Phillips did accept that the defence could include a challenge to the notice to quit thus assisting some occupiers in regaining their former status as tenants.