UKSC 8
On appeal from:  EWCA Civ 336
Mayor and Burgesses of the London Borough of Hounslow (Respondents) v Powell (Appellant)
Leeds City Council (Respondent) v Hall (Appellant)
Birmingham City Council (Respondent) v Frisby (Appellant)
Lord Phillips, President
Lord Hope, Deputy President
JUDGMENT GIVEN ON
23 February 2011
Heard on 23 and 24 November 2010
Jan Luba QC
(Instructed by Scully & Sowerbutts Solicitors)
Ashley Underwood QC
(Instructed by Corporate Services, London Borough of Hounslow)
Jan Luba QC
(Instructed by Zermansky & Partners Solicitors)
Ashley Underwood QC
(Instructed by Leeds City Council)
Jan Luba QC
(Instructed by Evans Derry Binnion Solicitors)
Andrew Arden QC
(Instructed by Birmingham City Council)
|Intervener (Secretary of State for Communities and Local Government)
Daniel Stilitz QC
(Instructed by Treasury Solicitor)
"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 statutory background
(b) introductory tenancies
"(2) When such an election is in force, every periodic tenancy of a dwelling-house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant or, in the case of joint tenants, one or more of them was –
(a) a secure tenant of the same or another dwelling-house, or
(b) an assured tenant of a registered social landlord (otherwise than under an assured shorthold tenancy) in respect of the same or another dwelling-house."
The duration of an introductory tenancy is defined by section 125. The tenancy remains as an introductory tenancy until the end of the trial period which, unless shortened because the tenant was formerly a tenant under another introductory tenancy, lasts for the period of one year: section 125(2). It does not become a secure tenancy until the end of the trial period: Housing Act 1985, Schedule 1, paragraph 1A. The conversion then takes place automatically unless the introductory tenancy has been terminated.
"(1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling-house.
(2) The court shall make such an order unless the provisions of section 128 apply.
(3) Where the court makes such an order, the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order."
(a) Ms Powell
(c) Mr Frisby
The form and content of the proportionality review
"'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a 'home' which attracts the protection of article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place."
This issue is likely to be of concern only in cases where an order for possession is sought against a defendant who has only recently moved into accommodation on a temporary or precarious basis. The Leeds appeal in Kay v Lambeth London Borough Council  2 AC 465, where the defendants had been on the recreation ground in their caravan for only two days without any authority to be there, provides another example of a situation where it was not seriously arguable that article 8 was engaged: see para 48. In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8.
(b) introductory tenancies
Section 127(2) of the 1996 Act
"The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed."
Furthermore, as Mr Underwood pointed out, Parliament had made a clear choice that introductory tenants were not to have the protection from eviction that secure tenants have. He said that there were many ways in which section 127(2) could be made compatible with article 8, and that it should be left to Parliament to choose between them.
Section 89 of the 1980 Act
"(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
(2) The restrictions in subsection (1) above do not apply if –
(a) the order is made in an action by a mortgagee for possession; or
(b) the order is made in an action for forfeiture of a lease; or
(c) the court had power to make the order only if it considered it reasonable to make it; or
(d) the order relates to a dwelling-house which is the subject of a restricted contract (within the meaning of section 19 of the [Rent Act 1977]); or
(e) the order is made in proceedings brought as mentioned in section 88(1) above [proceedings for possession of a dwelling-house let under a rental purchase agreement]."
"(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of grounds 1 to 6 or 10 to 13 in Part I of Schedule 4 to this Act, the court may adjourn the proceedings for such period or periods as it thinks fit.
(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may –
(a) stay or suspend execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court may think fit."
The scheme of the 1980 Act, as the contrast between sections 87 and 89 illustrates, was to confer protection on secure tenants but to restrict it in relation to non-secure tenants. Its long title states that among the Act's purposes was "to restrict the discretion of the court in making orders for possession." Section 89 contains an express prohibition against exercising the extended powers given by section 85 in the case of secure tenancies.
The disposal of these appeals
(a) Ms Powell
(b) Mr Hall
(c) Mr Frisby
Issue 1: Does article 8 apply at all to a claim for possession of premises held on an introductory tenancy?
Issue 2: Must repossession of property that is occupied under an introductory tenancy be subject to an independent determination of proportionality under article 8(2)?
Issue 3: What legitimate aims may the local authority invoke when seeking to justify under article 8(2) the dispossession of an introductory tenant?
Issue 4: In the light of the legitimate aims, what types of factual issue will be relevant to any proportionality determination?
The contentions of the parties.
"When assessing proportionality by reference to this legitimate aim, it is not necessary or appropriate for the court to investigate the factual merits of the local authority's reasons for serving the notice to quit, as the merits of the local authority's reasons are irrelevant to the assessment of proportionality against this particular legitimate aim."
"Unless the local authority specifically seeks to invoke the particular reasons for seeking possession given to the occupier under the statutory scheme, the factual inquiry on an article 8 challenge in the county court will be confined to the determination of the occupier's personal circumstances."
Lord Hope's analysis
"Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy."
Issue 5: Can section 127(2)of the 1996 Act be read compatibly with the occupier's article 8 rights so as to allow him to defend a claim for possession of premises held on an introductory tenancy in the county court?
Issues 6 and 8: Procedural questions
Section 89 of the Housing Act 1980
Issue 9: Disposal.
Issue 1: What special features, if any, apply to the determination of an article 8 defence in the context of accommodation provided under Part VII?
(1) the authority has not yet reached a decision on the homelessness application but the applicant is being accommodated in the interim because he may be eligible, homeless and have a priority need: Housing Act 1996, section 188;
(2) the authority is in the process of referring the application to a different local housing authority but accommodating the applicant until that process is resolved: Housing Act 1996, section 200;
(3) the authority has determined the application but the applicant has invoked a statutory review or statutory appeal and the authority is accommodating until the review/appeal is determined: Housing Act 1996, sections 188 and 204(4);
(4) the authority has decided to exercise its power to accommodate an applicant who is eligible, homeless, not intentionally homeless but not in priority need: Housing Act 1996, section 192(3);
(5) the authority has decided that because the applicant is eligible, homeless, and in priority need but has become homeless intentionally it is under a duty to accommodate for such time as gives the applicant a reasonable opportunity of securing his own accommodation: Housing Act 1996, section 190(2)(b); or
(6) the authority has decided that the applicant is eligible, homeless, in priority need and did not become homeless intentionally (the "main housing duty"): Housing Act 1996, section 193.
Issue 2: What legitimate aims may the local authority invoke when seeking to justify under article 8 (2) the dispossession of a tenant who is in occupation of premises pursuant to Part VII?
Issue 3: In the light of the legitimate aims what type of factual issues will be relevant to any such proportionality determination?
Issue 4: Does article 8 require the local authority to give notice of its reasons for seeking possession?
"The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal …. The references to 'flexibility' or 'administrative burden' have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid."
The Court was there dealing with gipsies but those words are equally applicable in the present context.
Issue 5: When and how should notice of the authority's reasons be given?
Issue 7: Should the judge hearing the application for possession also rule on the validity of the notice to quit?
Issue 8: Disposal
LORD RODGER, LORD WALKER, LADY HALE, LORD BROWN AND LORD COLLINS