Manchester CC v Pinnock
 UKSC 45; 3 November 2010
Mr Pinnock lived with his partner and five children in a house which he had rented for some 30 years from Manchester City Council. After complaints of a number of serious incidents of anti-social behaviour on the part of Mr Pinnock’s family (but not himself) at or near the property, Manchester obtained a demotion order under Housing Act (HA) 1985 s82A. Subsequently, one of Mr Pinnock’s sons was convicted of obstructing a police officer at the premises and another pleaded guilty to causing death by dangerous driving and driving while disqualified near to the premises. In June 2008, just before the date when Mr Pinnock’s demoted tenancy would have reverted to being a secure tenancy (HA 1996 s143B), Manchester served notice of proceedings for possession. Mr Pinnock requested a review and was represented at an oral hearing by his solicitor. The panel upheld the decision to terminate his tenancy. Mr Pinnock defended the subsequent possession claim. HHJ Holman made a possession order under HA 1996 s143D(2) which provides that a court “must make an order for possession unless it thinks that the procedure under [ss] 143E and 143F has not been followed.”. Mr Pinnock appealed. The Court of Appeal dismissed his appeal. ( EWCA Civ 852, September 2009 Legal Action 31). Mr Pinnock appealed to the Supreme Court.
In a single judgment, delivered by Lord Neuberger MR, the Supreme Court held that (i) Article 8 requires courts asked to make possession orders against demoted tenants under s143D(2) to have the power to consider whether the order would be “necessary in a democratic society”; and (ii) that s143D(2) is compatible with Article 8.
Lord Neuberger stated the court’s observations relating to local authority landlords applied equally to other social landlords to the extent that they are public authorities under the Human Rights Act 1998 (“HRA”), but nothing in the judgment applied to private landowners.
After considering the ECtHR jurisprudence on Article 8 and possession clams in general, he said that if UK “law is to be compatible with article 8 ... the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact.” [para 49]
After referring to the decisions of the House of Lords in Harrow LBC v Qazi  UKHL 43;  1 AC 983, Kay v Lambeth LBC  UKHL 10;  2 AC 465, and Doherty v Birmingham CC  UKHL 57;  1 AC 367, he stated that it was” unnecessary to consider them in any detail”. As there was “now [an] unambiguous and consistent approach of the EurCtHR”, the Supreme Court had to consider whether it was appropriate to depart from those decisions. Although the Supreme Court was not bound to follow Strasbourg decisions, “Where ... there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.  Although the Supreme Court did not expressly overrule Qazi, Kay or Doherty, it is clear that those decisions should no longer be followed.
Lord Neuberger referred to the view that it would only be in exceptional cases that article 8 proportionality would even arguably give a right for an occupant to remain in possession where there was no such right under domestic law (see eg McCann v UK 47 EHRR913, para 54; Kay v UK (App no 37341/06), para 73). However, he stated that consideration of proportionality arguments should not be limited to “very highly exceptional cases”. It would be “both unsafe and unhelpful to invoke exceptionality as a guide. ... [E]xceptionality is an outcome and not a guide”. [para 51] However, a local authority’s aim in wanting possession should be a “given”, which does not have to be explained or justified in court. “The court will only be concerned with the occupiers’ personal circumstances.” “The fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. “ [para 53] He continued by stating “in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.” [para 54]
The Supreme Court declined to give further guidance, stating “The wide implications of the obligation” to consider the proportionality of making a possession order “are best left to the good sense and experience of judges sitting in the County Court.”  “If an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.” [para 61]
These comments appear to apply to all kinds of occupancy lacking security of tenure, not just demoted tenancies. The importance of this decision in relation to occupants other than demoted tenants is demonstrated by the following passages;
· “if domestic law justifies an outright order for possession, the effect of article 8 may, albeit in exceptional cases, justify (in ascending order of effect) granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. [para 62]
· “the conclusion that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a person’s home may require certain statutory and procedural provisions to be revisited”, e.g. HA 1980 s89 and some of the provisions of CPR 55, “which appear to mandate a summary procedure in some types of possession claim”. [para 63]
The submissions “that proportionality is more likely to be a relevant issue ‘in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty’, and that ‘the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases’” seemed to be “well made”. [para 64]
An important issue is the extent to which county courts should hear and determine questions of fact arising in such possession claims. Lord Neuberger said
· “... once it is accepted that it is open to a demoted tenant to seek judicial review of a landlord’s decision to bring and continue possession proceedings, then it inevitably follows that, as a generality, it is open to a tenant to challenge that decision on the ground that it would be disproportionate and therefore contrary to article 8. ... EurCtHR jurisprudence requires the court considering such a challenge to have the power to make its own assessment of any relevant facts which are in dispute.” [para 73]
· Where it is required in order to give effect to an occupier’s article 8 Convention rights, the court’s powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view. [para 74]
· “a County Court judge who is invited to make an order for possession against a demoted tenant pursuant to section 143D(2) can consider whether it is proportionate to make the order sought, and can investigate and determine any issues of fact relevant for the purpose of that exercise.” [para 104]
In relation to demoted tenants, Lord Neuberger stated “if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2).” [para 77] “An occupier who is the defendant in possession proceedings in the County Court and who claims that it would be incompatible with his article 8 Convention rights for him to be put out of his home must be able to rely on those rights in defending those proceedings.” [para 78] Accordingly “section 143D(2) should be read as allowing the court to exercise the powers which are necessary to consider and, where appropriate, to give effect to, any article 8 defence which the defendant raises in the possession proceedings.” [para 79]
The Supreme Court disapproved part of the reasoning of the Court of Appeal in Manchester CC v Cochrane  1 WLR 809, that an introductory tenant could not raise a defence based on the contentions that (a) there had been no breaches of the tenancy agreement; (b) the relevant Regulations had not been complied with; and (c) there had been a failure to comply with the rules of natural justice in the conduct of the review by the Panel. [para 82] In such circumstances “article 8 would require the court to be able to consider the facts, as well as proportionality, for itself”. 
However, the Supreme Court dismissed Mr Pinnock’s appeal. It noted that “the history of crime, nuisance and harassment on the part of those living at the property in the period leading up to the demotion order was extraordinary in its extent and persistence.” [para 126] In the light of events since then, many of which were not disputed, it was proportionate to make a possession order.