Practical proportionality

For anyone involved in tenancy management, 'proportionality' should be a concept that is familiar. However, there can still be some uncertainty as to how proportionality impacts on a day to day basis. The changes in legislation that will undoubtedly flow from Brexit could in due course see proportionality change or even disappear altogether - but in the foreseeable future, it is here to stay.

What is proportionality?

In 2010 the case of Manchester City Council v Pinnock was reported, followed the year later by the linked cases of London Borough of Hounslow v Powell and Leeds City Council v Hall. In summary, these cases looked at the impact of Article 8 human rights defences in mandatory possession cases - cases where a Judge does not have discretion as to whether to make a possession order. Those cases found that occupants do have an ability to raise an Article 8 defence, to challenge the decision to seek possession and to ask the Court to consider the reasonableness of seeking possession by raising an Article 8 defence. Helpfully for landlords however, those cases emphasise that potential Article 8 defences can be defeated if landlords can show that the issuing of proceedings is a "proportionate means of achieving a legitimate aim." Helpfully for landlords, the starting assumption is that their actions are 'proportionate' - but, if a tenant raises a challenge, then proportionality is something that a landlord may have to prove.  

Separately, proportionality and the need to show the decision to issue Court action is a "proportionate means of achieving a legitimate aim" was introduced as a potential defence in the Equality Act 2010. Any tenant who is afforded protection under the Equality Act can raise a proportionality defence to any Court proceedings that they face - and it will be for a landlord to prove that the issuing of proceedings is proportionate and reasonable.

Although the same phrase is used in these 2 different contexts, in 2015 the Supreme Court in the case of Akerman-Livingstone v Aster clarified that proportionality defences in Equality Act defences will, in most cases, require a more detailed consideration by a Judge - whereas in Article 8 cases, Judges can more easily dispense with such defences summarily.

Practicalities

So how does a landlord fend off a proportionality defence?

In short, if the first time you consider proportionality in a case is when it is raised in a defence, you could possibly already be too late.

Our advice is that the key to dealing with proportionality is preparation and forethought. Approach every Court case on the basis that proportionality may be raised as a defence: if this approach is taken, landlords should be successful in defeating the vast majority of proportionality challenges that are raised.

1. If you do feel that Court proceedings are the option you will be pursuing, firstly review the file. Is there anything on the file which refers to any health or perhaps literacy issues? Remember to also check the pre-tenancy information.
2. Check any and all policies which may apply to that particular case - and ensure that you have complied. For example if an ASB policy refers to an escalation process, have you followed that escalation process? If you are diverging from policy in any way, can this be justified?
3.  Linked to the above, have you considered alternative options? The most obvious example is pursuing an injunction as opposed to possession, but it could equally apply to considering a non-Court intervention as opposed to Court proceedings.
4. If there are any health - and notably mental health - issues, do ensure that you have sought to raise these with the relevant support agencies. GPs, the CMHT and social services are the obvious examples, but consider others such as local drug and alcohol support agencies.

Most of the above is something that many officers routinely do. However, the crucial final step is to document all of the above. If a proportionality defence is raised, your officers will have to demonstrate that the decision to issue proceedings is reasonable and proportionate. The easiest way to do this is to prepare a proportionality assessment before notice is served ideally - and certainly before proceedings are issued. In one simple document, you can demonstrate that you have considered the case, considered alternatives - and have ultimately decided that it is reasonable and proportionate to proceed. Completing a proportionality assessment is something that can be done once proceedings are issued if it is overlooked initially - but the risk is that if you realise there is a problem at that stage, ultimately you may have to discontinue proceedings, which could be costly.

Proportionality should not be a concept that is to be feared. Equally, it should not be seen as a tick-box exercise. It can take time - a proportionality review for a tenancy with a long history may take several hours to prepare. However, if you can satisfy a Judge that your actions are proportionate, you will significantly increase the prospect of being successful with your Court action.

Preparing for proportionality is time well spent.