Powell and Others v Mayor and Burgesses of the London Borough of Hounslow and Others
| Jurisdiction | England & Wales |
| Judge | LORD HOPE,LORD RODGER, LORD WALKER, LADY HALE, LORD BROWN AND LORD COLLINS,LORD PHILLIPS |
| Judgment Date | 23 February 2011 |
| Neutral Citation | [2011] UKSC 8 |
| Date | 23 February 2011 |
| Court | Supreme Court |
[2011] UKSC 8
Lord Phillips, President
Lord Hope, Deputy President
Lord Rodger
Lord Walker
Lady Hale
Lord Brown
Lord Collins
Appellant (Powell)
Jan Luba QC
Kevin Gannon
(Instructed by Scully & Sowerbutts Solicitors)
Respondent
Ashley Underwood QC
Kelvin Rutledge
(Instructed by Corporate Services, London Borough of Hounslow)
Appellant (Hall)
Jan Luba QC
Adam Fullwood
(Instructed by Zermansky & Partners Solicitors)
Respondent
Ashley Underwood QC
Kelvin Rutledge
(Instructed by Leeds City Council)
Appellant (Frisby)
Jan Luba QC
Michael Singleton
(Instructed by Evans Derry Binnion Solicitors)
Respondent
Andrew Arden QC
Jonathan Manning
Robert Brown
(Instructed by Birmingham City Council)
Intervener (Secretary of State for Communities and Local Government)
Daniel Stilitz QC
Ben Hooper
(Instructed by Treasury Solicitor)
Heard on 23 and 24 November 2010
These are three of five conjoined appeals which were heard by the Court of Appeal in Salford City Council v Mullen [2010] EWCA Civ 336, [2010] LGR 559. They are concerned with possession proceedings brought by a local authority in circumstances where the occupier is not a secure tenant under Part IV of the Housing Act 1985. Two of them, Leeds City Council v Hall (" Hall") and Birmingham City Council v Frisby (" Frisby"), are cases where the claims for possession were made against tenants occupying under introductory tenancies entered into under Chapter 1 of Part V of the Housing Act 1996. In the third, London Borough of Hounslow v Powell (" Powell"), the claim for possession was made against a person who was granted a licence of property under the homelessness regime in Part VII of the 1996 Act. Permission to appeal was given in a fourth case, Salford City Council v Mullen. But the proceedings in that case were stayed to await the outcome of these appeals.
Common to all three cases is the claim by each of the appellants that the property which is the subject of the proceedings for possession against them is their "home" for the purposes of article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Their case is that, to avoid a breach of article 8, the interference must be justified under article 8(2) as being "necessary in a democratic society" and that this means that it must be in accordance with the law, it must be for a legitimate aim and it must be proportionate to the aim that the local housing authority is seeking to achieve. They maintain that, as the court did not assess the proportionality of making the orders against them, there was a breach of their article 8 rights.
The Court had the opportunity in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 3 WLR 1441 (" Pinnock") of considering the application of article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). It held that article 8 requires a court which is being asked to make an order for possession under section 143D(2) of the Housing Act 1996 against a person occupying premises under a demoted tenancy as his "home" to have the power to consider whether the order would be necessary in a democratic society: para 2. Although Mr Arden QC submitted forcefully that it should not apply to introductory tenancies in view of their probationary nature, I would hold that this proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a person's home for the purposes of article 8. There is a difference of view between the parties, however, as to its consequences, and in particular as to how cases of this kind should be dealt with in practice by the courts and local authorities.
The Court recognised that cases of the type that was examined in Pinnock arise relatively rarely and that cases of the kind represented by these appeals, which involve possession orders in different and more common circumstances, were likely to provide a more appropriate vehicle for the giving of general guidance: paras 58–59. It was expected that the lawyers preparing for these appeals would have the opportunity of giving particular attention to the guidance that might usefully be given where possession is sought against introductory tenants and against applicants under the homelessness regime where there is no provision for the kind of procedure envisaged in Chapters 1 and 1A of Part V of the 1996 Act for introductory and demoted tenancies. I wish to pay tribute to counsel on all sides for the way in which they have taken full and careful advantage of that opportunity.
The Court of Appeal delivered its judgment in Salford City Council v Mullen [2010] EWCA Civ 336 on 30 March 2010. As Waller LJ explained in para 4, the court held that it was bound by what was said in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, para 110, as to the circumstances in which a county court might decline to make a possession order. They were limited to two situations: first, if it was seriously arguable that the law which enables the county court to make the possession order is itself incompatible with article 8 (which the Court of Appeal in Doherty v Birmingham City Council [2006] EWCA Civ 1739, [2007] LGR 165, para 28 called "gateway (a)"); and second, if it was seriously arguable that the decision of the public authority was (regardless of the tenant's Convention rights) an improper exercise of its powers because it was a decision that no reasonable person would consider justifiable (which the Court of Appeal in Doherty called "gateway (b)"). So, where the local authority had fulfilled the requirements for the recovery of possession contained in the ordinary domestic law, a defence which did not challenge the law under which the order was sought as being incompatible with article 8 but was based on the proposition that the interference with the person's home was disproportionate should be struck out.
Writing extrajudicially, Lord Bingham of Cornhill said of the Strasbourg jurisprudence that its strength lies in its recognition of the paramount importance to some people, however few, in some circumstances, however rare, of their home, even if their right to live in it has under domestic law come to an end: Widening Horizons, The Hamlyn Lectures (2009), p 80. There has never been any dispute about gateway (a). It can be traced back to Kay v Lambeth London Borough Council [2006] 2 AC 465, para 39 where, in head (3)(a) of his summary of the practical position, Lord Bingham described the first of the two grounds on which the court might consider not making a possession order as being that the law which required the court to make the order despite the occupier's personal circumstances was Convention-incompatible. But gateway (b), albeit widened to some degree by what was said in Doherty v Birmingham City Council [2008] UKHL 57, [2009] AC 367, para 55, has always been controversial. The central issue which divided the parties in Pinnock was whether the proposition which was encapsulated in it should still be applied in the light of subsequent decisions of the European Court of Human Rights in McCann v United Kingdom (2008) 47 EHRR 913, Cosic v Croatia (Application No 28261/06) (unreported) given 15 January 2009, Zehentner v Austria (Application No 20082/02) (unreported) given 16 July 2009 and Paulic v Croatia (Application No 3572/06) (unreported) given 22 October 2009.
This Court held that those cases, together with Kay v United Kingdom (Application No 37341/06) given 21 September 2010, The Times 18 October 2010, provided a clear and constant line of jurisprudence to the effect that any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to question the proportionality of the measure and to have it determined by an independent tribunal in the light of article 8: para 45. The decision in Doherty v Birmingham City Council had shown that our domestic law was already moving in that direction, and the time had come to accept and apply the jurisprudence of the European court. So, where a court is asked to make an order for possession of someone's home by a local authority, the court must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact: para 49.
It is against the background of that decision that the issues that arise in the present appeals must be considered. They can be summarised briefly at this stage as follows. (1) What is the form and content of the proportionality review that article 8 requires? (2) What procedural protections are implicit in article 8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced? (3) Can the court defer the delivery of possession for a period in excess of the maximum permitted by section 89 of the Housing Act 1980 if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility? (4) Can section 127(2) of the 1996 Act be read compatibly with the introductory tenant's article 8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Pinnock, or must there be a declaration that section 127(2) is incompatible with the...
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