Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening)

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLORD NEUBERGER
Judgment Date03 November 2010
Neutral Citation[2010] UKSC 45
Date03 November 2010

[2010] UKSC 45

THE SUPREME COURT

Michaelmas Term

On appeal from: [2009] EWCA Civ 852

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Rodger

Lord Walker

Lady Hale

Lord Brown

Lord Mance

Lord Neuberger

Lord Collins

Manchester City Council
(Respondent)
and
Pinnock
(Appellant)

Appellant

Richard Drabble QC

James Stark

(Instructed by Platt Halpern)

Respondent

Andrew Arden QC

Jonathan Manning

(Instructed by Manchester City Council)

Intervener (Secretary of State for Communities and Local Government)

Daniel Stilitz QC

Ben Hooper

(Instructed by Treasury Solicitor)

Intervener (Equality and Human Rights Commission)

Jan Luba QC

(Instructed by Equality and Human Rights Commission)

LORD NEUBERGER
1

This is the judgment of the Court, to which all members have contributed.

2

The principal questions in this appeal are (a) whether article 8 of the European Convention on Human Rights ("the Convention") requires a court, which is being asked to make an order for possession under section 143D(2) of the Housing Act 1996 ("the 1996 Act") against a person occupying premises under a demoted tenancy, to have the power to consider whether the order would be "necessary in a democratic society" and (b) if so, whether section 143D(2) is compatible with article 8 of the Convention ("article 8"). In the result, the Court answers both questions in the affirmative, the first at paras 22-54, the second at paras 65-107 below.

3

The appeal concerns a tenancy granted by a local authority, but observations relating to local authority landlords in this judgment apply equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1998 (" HRA").

4

On the other hand, we should emphasise at the outset that nothing in this judgment is intended to bear on cases where the person seeking the order for possession is a private landowner. We briefly explain why at para 50 below.

The background to the appeal: secure and demoted tenancies

5

Most residential occupiers of houses and flats owned by local authorities are "secure tenants" under Part IV of the Housing Act 1985 ("the 1985 Act"). By virtue of section 84 of the 1985 Act, a secure tenant cannot be evicted unless the landlord establishes to the satisfaction of the court (a) that one of the grounds specified in schedule 2 to the 1985 Act (e g, non-payment of rent or nuisance to neighbours) exists, and (b), except in some specified categories of case where suitable alternative accommodation is available, that it is reasonable to make an order for possession against the tenant.

6

Even where the landlord establishes that these two requirements are satisfied, the court has a wide discretion under section 85 of the 1985 Act as to what order to make. It may refuse to make any order, it may adjourn the proceedings, it may make an outright possession order which takes effect on a specific day, or it may make a suspended possession order which will not take effect so long as, for instance, the tenant pays the rent or creates no nuisance.

7

The secure tenancy regime was originally introduced by the Housing Act 1980 ("the 1980 Act"), but its provisions were consolidated in by Part IV of the 1985 Act. Certain types of tenancy are excluded from this regime, and they are set out in schedule 1 to the 1985 Act. Subsequently, amendments were made to the regime, most relevantly for present purposes by the 1996 Act and the Anti-social Behaviour Act 2003 ("the 2003 Act").

8

The 2003 Act inserted a new section 82A into the 1985 Act ("section 82A"). This section gives the court the power to make a "demotion order" in respect of a secure tenancy. A demotion order results in a tenancy ceasing to be a secure tenancy and becoming, instead, a "demoted tenancy". Section 82A(4) states that such an order may only be made if (a) the tenant (or someone living with him) has engaged, or has threatened to engage, in (i) "housing-related anti-social conduct" (as defined in section 153A of the 1996 Act) or (ii) conduct which consists of or involves using the "premises for unlawful purposes" (as explained in section 153B of the 1996 Act), and (b) "it is reasonable to make the order". Section 82A makes it clear that the demoted tenancy is a new tenancy. The terms of the previous tenancy as to rent are carried across into the new tenancy, but the demotion results in much reduced rights of security of tenure for the tenant.

9

Somewhat confusingly, the provisions dealing with the operation of the demoted tenancy regime were inserted as Chapter 1A of Part V of the 1996 Act. Subsection (1) of section 143B of that Act ("section 143B") explains that, if a tenancy is demoted, the demotion will last for a year, unless the landlord brings possession proceedings within that year. If such proceedings are brought within the year and are not determined before the year's end, the demoted tenancy continues until the proceedings are determined. If such proceedings are brought within the year and an order for possession is made, the tenancy ends. If no such proceedings are brought, or they are brought and they fail, then, at the end of the year, the demoted tenancy will become a secure tenancy.

10

Subsection (1) of section 143D of the 1996 Act ("section 143D") states that a landlord can only bring a demoted tenancy to an end by obtaining an order for possession from the court. Since it is central to the present appeal, section 143D(2) must be quoted in full:

"The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed."

11

The effect of section 143E of the 1996 Act ("section 143E") is that, before issuing possession proceedings against a demoted tenant, a local authority landlord must serve a notice (a "Notice") informing him of (a) the fact that it has decided to seek possession, (b) the reasons why, (c) the date after which the proceedings will be issued, (d) the tenant's right to request a review of the landlord's decision (a "Review"), and (e) where to get legal advice. Section 143F of the 1996 Act ("section 143F") entitles the tenant, within fourteen days of the Notice, to request a Review, in which case the local authority landlord is obliged to carry out a Review which complies with regulations made by the Secretary of State under section 143F(3) and (4), and then to inform the tenant of the outcome. Such regulations have been made in the Demoted Tenancies (Review of Decisions) (England) Regulations 2004 (SI 2004/1679).

12

Section 143N of the 1996 Act states that the County Court has jurisdiction "to determine questions arising", and "to entertain proceedings brought", under, inter alia, sections 143B-143F, even if the only relief sought is a declaration.

13

The procedures of the demoted tenancy regime are closely based on those of a regime first introduced by Chapter 1 of Part V of the 1996 Act. It enabled a local authority to grant a tenancy under which a new tenant had a one-year probationary period before becoming a secure tenant. During that first year the tenancy is an "introductory tenancy". The procedure governing the landlord's right to claim possession during that probationary period is contained in sections 127, 128, and 129 of the 1996 Act, whose provisions are, mutatis mutandis, virtually identical to sections 143D, 143E, and 143F respectively.

The procedural background to the appeal

14

In November 1978 Manchester City Council ("the Council") granted Cleveland Pinnock a tenancy of a house at 65 Meldon Road, Longsight ("the property"), where he has lived ever since with his partner, Christine Walker, and, from time to time, with all or some of their five children. In March 2005 the Council applied to the Manchester County Court for an order for possession of the property, or in the alternative a demotion order in respect of Mr Pinnock's secure tenancy. Each of these claims was based on the contention that all of Mr Pinnock's children and Ms Walker (but not Mr Pinnock) had been guilty of serious anti-social behaviour, in breach of the covenants in Mr Pinnock's tenancy. The proceedings came before Recorder Scott Donovan, who heard considerable evidence and argument over a total of six days. In part, the length of the proceedings was due to the Council amending its case in relation to the relief it was seeking.

15

The Recorder gave a full judgment on 8 June 2007. He concluded that a large number of serious allegations against Ms Walker and Mr Pinnock's children were well founded. He nevertheless decided that it would be "truly draconian" to make an order for possession, "bearing in mind the length of the tenancy and Mr Pinnock's blameless life looked at from his own lack of direct involvement in criminal activity". However, he went on to say that "[a]pplying the criteria of 'reasonableness', I am satisfied that a demotion of tenancy order is the most appropriate order and that compliance with the order is entirely within Mr Pinnock's and Christine Walker's own hands."

16

The demotion order therefore took effect from 8 June 2007. On 6 June 2008, the day before the order would effectively have lapsed, the Council served a Notice under section 143E, which indicated that possession would be sought. The Notice had the effect – pursuant to section 143B – of prolonging the demoted tenancy, and of initiating the procedure envisaged in sections 143D, 143E and 143F. The Notice sought to justify the projected possession proceedings on the ground of further alleged incidents of anti-social behaviour in the vicinity of the property involving two of Mr Pinnock's sons. Mr Pinnock exercised his right to seek a Review, which duly took place before a panel appointed by the Council ("the Panel"). In its decision of 3 July 2008, the Panel effectively upheld the Notice.

17

The Council then issued a claim for possession which came before His...

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