Manchester City Council v Pinnock (Rev 1)

The Court of Appeal held that where Parliament has created the special statutory regime for demoted tenancies, the county court's role on a claim for possession under that regime is limited by statute to procedural review under section 143D and section 143E/143F of the Housing Act 1996. The court emphasised that a demotion order under section 82A of the Housing Act 1985 is a judicial determination made in full compliance with Article 6, and that the county court is not entitled under the demotion-tenancy provisions to conduct a full merits judicial review of the landlord's decision to seek possession.

Applying those statutory limits, the court dismissed the appeal because the Appellant did not challenge that the statutory review procedure had been followed. The court added that, had the county court had jurisdiction to review the substance of the landlord's review decision, such a challenge would be governed by domestic judicial review principles (including the extended rationality test derived from Doherty), and the Administrative Court should be cautious before quashing a decision taken in the management of housing which followed a demotion order.

Background and parties: The appellant, Mr Pinnock, had been a secure tenant of Manchester City Council for some 30 years. After numerous incidents of anti-social behaviour by members of his household (found at a trial before Recorder Scott Donovan), the council obtained a demotion order under section 82A Housing Act 1985 on 8 June 2007. As the demotion period approached its end, the council served a notice under section 143B Housing Act 1996 and, following an internal review under the Demoted Tenancies (Review of Decisions) (England) Regulations 2004, commenced possession proceedings. The county court (His Honour Judge Holman) ordered possession and the appellant appealed to the Court of Appeal.

(i) Nature of the claim: The respondent sought an order for possession of the dwelling-house pursuant to the demoted tenancy regime. The appellant challenged (a) compatibility of the statutory procedure with Article 6 ECHR, (b) whether there had been a breach of the tenancy, (c) whether the council's decision to recover possession unlawfully infringed Article 8, and (d) the lawfulness of the review procedure.

(ii) Issues framed by the court: The principal legal issues were (1) whether the county court has jurisdiction to review the substance (merits) of the landlord's decision to seek possession of a demoted tenancy or is limited to reviewing compliance with the statutory procedure; (2) the extent to which Convention rights (Article 6 and Article 8) affect the two-stage demotion/possession scheme; and (3) if substantive review is available, the applicable standard (proportionality under Article 8 or domestic public law reasonableness/extended rationality).

(iii) Reasoning and outcome: The court reasoned that the making of a demotion order is a judicial act carried out with Article 6 safeguards and that Parliament, by creating the demotion-tenancy regime, intended a distinct two-stage process. Reading the statutory provisions as a whole, sections 143D and 143E/143F limit the county court's function on a possession claim under the demoted tenancy chapter to determining whether the statutory review procedure has been followed; if it has, the court must make a possession order. The court was concerned that permitting the county court to conduct a full merits review would produce impractical and unintended consequences (for example, where a quashing order would automatically restore security of tenure). The Court of Appeal therefore dismissed the appeal for want of a procedural challenge, while observing that substantive challenges to the review decision remain available by way of judicial review in the Administrative Court, where domestic public law grounds (including the extended rationality test in Doherty) would apply and relief should be granted only with great caution.

Contextual note: The court explained the relationship between the demotion regime and Convention rights, endorsing that where Parliament has prescribed a statutory scheme for occupation and possession the domestic law will ordinarily be treated as satisfying Article 8, save in rare cases; but where a public authority's decision to seek possession is challenged it is amenable to conventional judicial review in the appropriate forum.

Appeal dismissed. The Court of Appeal held that the county court's jurisdiction on a possession claim under the demoted-tenancy Chapter is confined to checking whether the statutory review procedure under sections 143E and 143F was followed; having found no procedural defect the court must make the possession order. The court further held that substantive review of the landlord's decision should be pursued by judicial review in the Administrative Court and, even there, relief should be granted only sparingly under domestic public law principles (applying the extended rationality test in Doherty).

Appeal to the Court of Appeal from Manchester County Court (order of His Honour Judge Holman made 22 December 2008 on the council's possession claim under a demoted tenancy). Underlying proceedings included the Recorder Scott Donovan's trial and judgment of 8 June 2007 which granted the demotion order. Reported at [2009] EWCA Civ 852.