Mayor and Burgesses of the London Borough of Hounslow v Powell

Whenever a local authority seeks possession of a dwelling which is the occupier’s home, the court must be able to determine whether eviction is proportionate under article 8. The occupier must raise a seriously arguable defence. The court may dismiss an insufficient case summarily.

Ordinarily, the authority may rely without further justification on its ownership rights and its responsibilities for allocating and managing social housing. Section 127(2) of the Housing Act 1996 must be read compatibly with article 8 so that introductory tenants can raise proportionality.

Section 89 of the Housing Act 1980 prevents postponement of possession beyond six weeks, even on proportionality grounds. It does not prevent appropriate case management before an order is made or refusal of an order which would infringe article 8.

These were three conjoined appeals concerning possession proceedings against occupiers who lacked secure tenancies. In Mayor and Burgesses of the London Borough of Hounslow v Powell, accommodation had been provided under Part VII of the Housing Act 1996 and possession was sought following rent arrears. In Leeds City Council v Hall and Birmingham City Council v Frisby, introductory tenants faced possession proceedings following allegations of noise nuisance and anti-social behaviour.

The county courts granted possession in the Powell and Hall cases. In Frisby, the defence was struck out but the proceedings were adjourned to permit a judicial review application. The Court of Appeal heard the cases with two other appeals in Salford City Council v Mullen [2010] EWCA Civ 336 and dismissed all three appeals.

Following Manchester City Council v Pinnock [2010] UKSC 45, the principal questions were how article 8 proportionality should be assessed; what procedural protection occupiers required; whether section 127(2) could accommodate an article 8 defence; and whether section 89 of the Housing Act 1980 permitted possession to be postponed beyond its statutory maximum.

Lord Hope delivered the leading judgment. Lord Phillips agreed and added further reasons. Lord Rodger, Lord Walker, Lady Hale, Lord Brown and Lord Collins agreed with both judgments. The appeals of Ms Powell and Mr Hall were allowed; Mr Frisby’s appeal was dismissed.

1. Article 8 requires a court considering a local authority’s claim for possession of a person’s home to have power to determine whether eviction is proportionate. This applies to introductory tenancies and accommodation provided under Part VII of the Housing Act 1996. A home is identified by sufficient and continuing links with the premises, rather than its domestic-law classification.

2. The occupier must raise article 8 and cross the high threshold of showing a seriously arguable defence. The court should consider the point summarily at first. If the facts relied upon could not affect the order, possession should be granted. If the threshold is crossed, the court must resolve relevant factual disputes and give a reasoned decision on whether eviction would strike a fair balance.

3. The authority may ordinarily rely on two legitimate aims: vindicating its ownership rights and performing its public duties in allocating and managing housing stock. Those aims may normally be presumed. The authority need not plead detailed housing-management reasons unless it wishes to rely on a particularly strong or unusual consideration. A structured inquiry requiring justification of every management decision would undermine Parliament’s distinction between secure and non-secure tenancies.

4. Nothing in Part VII expressly or by necessary implication prevents a court from refusing possession where eviction would be disproportionate. For introductory tenancies, section 127(2) must be read under sections 3(1) and 7(1)(b) of the Human Rights Act 1998 as permitting an article 8 defence. The court may reconsider the authority’s facts and consider developments after proceedings began. No declaration of incompatibility was required.

5. An occupier accommodated under Part VII must be told why possession is sought in sufficient time to decide whether to raise a proportionality defence. The authority need not initially plead its justification to the court. The precise timing and procedural form were left for procedural rules or practice directions.

6. Although the point did not arise on the facts, section 89 of the Housing Act 1980 could not be read down to permit postponement beyond six weeks. Nor could that limit be circumvented by suspending or staying an order. The court retained ordinary case-management powers before making an order and could refuse possession if an order within the statutory timetable would infringe article 8. The Court declined to declare section 89 incompatible because no evidence showed that the maximum period was inadequate in practice.

7. Ms Powell’s order and notice to quit were set aside following an offer of suitable alternative accommodation. Mr Hall’s order was set aside following an offer of a secure tenancy, although his proportionality case was not seriously arguable. Mr Frisby had disclosed no seriously arguable proportionality defence, so his appeal was dismissed.

• United Kingdom Supreme Court: The court unanimously allowed the appeals in Mayor and Burgesses of the London Borough of Hounslow v Powell and Leeds City Council v Hall, setting aside the possession orders because of the authorities’ respective offers. It dismissed the appeal in Birmingham City Council v Frisby.
• Court of Appeal: In Salford City Council v Mullen [2010] EWCA Civ 336 , the court dismissed all three appeals and stayed the county court orders pending appeals to the Supreme Court.
• County courts: A possession order was made against Ms Powell after the deputy district judge found Hounslow’s measures reasonable and proportionate in the public-law sense then applicable. A possession order was made against Mr Hall because section 127(2) was understood to prevent consideration of later events. Mr Frisby’s defence was struck out, but his proceedings were adjourned to allow a judicial review application.