Proportionality and Possession Proceedings
Johnson, Nick, Nottingham Law Journal
Manchester City Council v Pinnock  UKSC 45 (Lords Phillips, Hope, Rodger, Walker, Hale, Brown, Mance, Neuberger, Collins)
It is rare that the highest court in the UK sits with nine judges; this only happens, it would seem, where matters of the highest constitutional importance are raised. (1) It is, perhaps, even rarer that such a court is able to speak with one voice. Interestingly, this happened in November 2010 in the case of Pinnock v Manchester City Council (2) when Lord Neuberger delivered the sole judgment of a nine judge panel of the Supreme Court, which suggests even to the casual bystander that the case must be of some importance.
It is not exactly clear why the court took the approach of leaving the judgment to one judge. One possible reason is that Lord Neuberger is probably the most eminent property lawyer amongst the Supreme Court justices and thus best suited to delivering such a judgment. The other is that there was a clear need for the Court to dispel confusion which had arisen over the conflicting decisions in Kay and others v London Borough of Lambeth, (3) Doherty and others v Birmingham City Council (4) and the subsequent European Court of Human Rights decision in Paulic v Croatia (5). All of these had wrestled with the problem of the extent to which someone who had no domestic legal right to remain in residential property could invoke the protection Article 8 of the European Convention on Human Rights to avoid eviction. Pinnock deals clearly with the relationship between claims for possession of land, an issue which has traditionally been unaffected by the law of non-UK jurisdictions, and European Convention law. In what is an important attempt to clarify the interaction between these, however, the Supreme Court has, perhaps, inadvertently opened up the argument as to whether that traditionally non-UK issue of proportionality should be introduced as an element to claims for possession of land which involve interference with the "home".
BACKGROUND, FACTS AND CASE HISTORY
Mr Pinnock was previously a secure residential tenant of Manchester City Council ("Manchester"). In March 2005, Manchester began possession proceedings against him because of serious acts of anti-social behaviour committed in and around his property by members of his family. The county court in those proceedings ordered that his secure tenancy be demoted.
"Demoted tenancies" were introduced by the Anti Social Behaviour Act 2003 following the success of probationary "introductory tenancies" under the Housing Act 1996 (6). Demotion of a secure tenancy effectively removes much of the security of tenure afforded to a local authority tenant. Under a local authority secure tenancy, the court must always consider the reasonableness of making an order for possession or have an element of discretion as to whether to grant possession. Once a secure tenancy becomes a demoted tenancy, however, the statutory provisions (contained in the Housing Act 1996, sections 143E and 143F), simply require the landlord seeking possession to serve appropriate notice on the tenant and, if required by the tenant, to conduct an internal review of the decision to seek possession. If this review upholds the decision to seek possession, the landlord then applies to the court for a possession order. Under section 143D(1)(2), the court must make an order for possession unless it thinks that the statutory procedure has not been followed.
Demoted tenancies, like introductory tenancies, were introduced so that a local authority landlord could obtain possession as of right against anti-social families without the process being slowed down by arguments about whether it was reasonable or not to make an order for possession. In June 2008 Manchester served a notice under the Housing Act 1996 section 143E seeking to terminate Mr Pinnock's demoted tenancy because of the conduct of two of his sons at or near the property. …