The Ongoing Saga of Article 8

The Supreme Court has been busy in the last twelve months, considering a number of high profile cases surrounding the application of Article 8 of the European Convention of Human Rights - an individual's right to respect for his private and family life, his home and his correspondence. The Convention specifies that to avoid a breach of Article 8, any interference must be justified as being necessary in a democratic society.  Or, in other words, the interference must be for a legitimate aim and it must be proportionate to the aim that the local housing authority is seeking to achieve.

Questions have arisen over the past couple of years as to whether a social landlord acts 'proportionately' when seeking possession of his property from a tenant.  The latest case to examine this point is London Borough of Hounslow v Powell and others [2010].  The judgment on this case was handed down on 23 February 2011. This judgment builds and expands upon the decisions of two previous cases heard by the Supreme Court in 2010.

The first case is that of Kay v Lambeth London Borough Council [2010], which involved appeals from secure tenants who argued that if a possession order was made against them it would violate their rights under Article 8.  The Supreme Court established in this case that any person at risk of being dispossessed of his home by a local authority should, in principle, have the right to question the proportionality of that measure.  The decision-making process leading to the possession orders therefore had to be fair and afford due respect to the interests safeguarded under Article 8.

This was then followed by Manchester City Council v Pinnock [2010].  The question arose in this case as to whether the demoted tenancy regime could be interpreted as compliant with Article 8.  The Court took the opportunity to clarify that proportionality arguments need only to be considered in cases where the Court does not need to consider reasonableness, and where a landlord has an unqualified right to possession. They went on to say that if a defence based on Article 8 has been raised by the tenant, the demoted tenancy regime should be read to give the court the power to consider that defence.  This consideration will include an assessment of whether the possession order is proportionate. The Court did, however, hold back on giving too much detail as to how this would work, stating instead that further guidance would be given in due course.

The guidance has now been given in the case of Hounslow v Powell and others [2010].  The case involved three separate appeals where the Court was asked to consider whether, in circumstances where the occupier is not a secure tenant, the Court must consider the proportionality of making a possession order. Two of the cases involved local authority introductory tenancies, whilst the third case looked at the situation where temporary accommodation is given pursuant to the homelessness legislation.

All three tenants argued that the court must be able to consider the proportionality of the making of possession orders against them in their individual circumstances.  They argued that failure to do so was a breach of the rights under Article 8.

The Supreme Court held:

1. That a court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being arguable;
2. If the proportionality argument has been raised, the question will then be whether making an order for possession is a proportionate means of achieving a legitimate aim;
3. Two legitimate aims should always be taken for granted: that the making of the order will a) vindicate the authority's ownership rights, and b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock; and
4. Where the local authority has a particularly strong or unusual reason for seeking possession, it is entitled to ask the court to take that reason into account, and it should plead the reason if it wishes to do so.  However, the Court seemed to suggest that this would only apply in fairly exceptional circumstances.
   

The Supreme Court's latest decision does offer hope.  It reiterates that the court will only consider the proportionality of a measure if the tenant raises it in their defence.  The Court also looked carefully at the relevant statutory framework of the respective tenancies, placing huge weight on the fact that Parliament had purposely legislated so as not to give security to occupants in certain circumstances.  An introductory tenancy by its very nature is not intended to be a secure means of accommodation.  Therefore, when considering the proportionality of the measure, the court must also bear in mind the nature of the tenancy and its statutory purpose.

The decisions of the Court do not allow an Article 8 free-for-all. Although proportionality may be something that may be raised, the Supreme Court seems to envisage that in the majority of cases it will not lead to undue delays and it is unlikely to prevent an order being made, provided the housing provider can show that they are acting reasonably. Good record keeping with a file showing clearly why proceedings have been issued should be sufficient to get you over any proportionality hurdle that is raised. The only outstanding question is the extent to which proportionality can be raised in assured tenancy cases.  As a matter of good practice, the advice has to be that all housing providers should ensure that possession proceedings are not commenced without being satisfied that the decision could withstand scrutiny.