Hounslow LBC v Powell

The Supreme Court held that article 8 ECHR can be engaged where a local authority seeks possession of premises that constitute the occupier’s "home" even if the occupier is not a secure tenant. Where an article 8 defence is raised and is seriously arguable, the county court must be able to assess whether possession would be a proportionate interference with the right to respect for the home. Sections of the Housing Act 1996 governing introductory tenancies (in particular sections 127–129) can be read compatibly with the Human Rights Act 1998 so as to permit a proportionality defence to be raised in possession proceedings; the reasoning in Pinnock [2010] UKSC 45 applies. The ordinary presumption is that the authority is pursuing legitimate aims (vindication of ownership and fair management/allocation of housing stock) and the threshold for a tenant to require a full proportionality inquiry is high. The court cannot extend the statutory maximum postponement of possession in section 89 Housing Act 1980 by reading down the provision under section 3 HRA, and no declaration of incompatibility was made.

This appeal bundle concerned three conjoined appeals from the Court of Appeal ([2010] EWCA Civ 336) about possession claims by local authorities against non-secure occupiers: (1) Powell (homelessness accommodation under Part VII of the Housing Act 1996), (2) Hall and (3) Frisby (both introductory tenancies under Chapter 1, Part V of the 1996 Act). Each appellant relied on article 8 ECHR, contending that possession should not be ordered without a proportionality assessment.

Procedural posture: Appeals to the Supreme Court from the Court of Appeal (permission granted), heard with the Secretary of State intervening.

Nature of relief sought: the appellants sought to resist possession orders (or have them set aside) on the basis that the county court had not, and could not, properly assess proportionality under article 8.

Issues framed by the court:

• What is the form and content of the proportionality review required by article 8?
• What procedural protections does article 8 imply in homelessness and in introductory-tenancy stages (before and after notice to quit / notice of proceedings)?
• Whether a court can defer possession beyond the limits imposed by section 89 Housing Act 1980 on article 8 grounds, or whether a declaration of incompatibility is needed.
• Whether section 127(2) of the 1996 Act can be read compatibly with article 8 so that introductory tenants may raise proportionality defences in the county court.

Court’s reasoning (concise): The Court applied the approach taken in Pinnock [2010] UKSC 45. It emphasised that article 8 applies where the premises are the occupier’s "home" and that an independent determination of proportionality is required if the defence is raised and is seriously arguable; the county court must have power to consider proportionality and resolve relevant factual disputes. The two legitimate aims that normally justify a possession claim by a local authority are (a) vindication of ownership rights and (b) enabling the authority to comply with its public duties in allocating/managing housing stock; those aims are ordinarily presumed. The Court held that sections 127–129 can be read in conformity with the Human Rights Act so as to permit an article 8 proportionality defence in introductory-tenancy possession proceedings. The Court rejected reading down section 89(1) of the Housing Act 1980 under section 3 HRA to permit postponement beyond the statutory maximum; nor was there evidence to justify a declaration of incompatibility. The Court stressed that the threshold to require a full proportionality hearing is high to avoid undermining Parliament’s policy choices about security of tenure and efficient housing management.

Outcome in the individual appeals: Powell: appeal allowed (order and notice set aside) following offer of suitable alternative accommodation; Hall: appeal allowed (order set aside) following offer of a secure tenancy (otherwise, remit would not have been required because the proportionality defence was unarguable on the facts); Frisby: appeal dismissed (no seriously arguable proportionality defence shown).

The Supreme Court allowed the appeals in part. It held that article 8 may be engaged where a person’s home is at risk in possession proceedings brought by a local authority and, if an article 8 defence is raised and is seriously arguable, the county court must be able to assess proportionality and resolve material factual disputes. Section 127(2) of the Housing Act 1996 can be read compatibly with the Human Rights Act 1998 so as to permit a proportionality defence in proceedings against introductory tenants. Section 89(1) of the Housing Act 1980 cannot be read down under section 3 HRA to allow postponement beyond the statutory maximum, and no declaration of incompatibility was made. Applying these principles to the facts, the Court set aside the possession order and notice in Powell (in light of an offer of suitable alternative accommodation), set aside the order in Hall (in light of an offer of a secure tenancy) and dismissed Frisby’s appeal on the merits.

On appeal from the Court of Appeal decision Salford City Council v Mullen [2010] EWCA Civ 336. The appeals to the Supreme Court were heard following the Court of Appeal’s dismissal of the appellants’ challenges to possession orders; permission to appeal to the Supreme Court was granted and the matters were determined together in this leading judgment of [2011] UKSC 8.