20.43Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104
It can be disproportionate, in breach of Article 8 ECHR, to order a person to give up possession of their home, but the rights of the public landowner will almost always prevail
Facts: a local housing authority brought possession proceedings.
Judgment: the Supreme Court (Phillips, Hope, Rodger, Walker, Hale, Brown, Mance, Neuberger and Collins JJSC) held that when a public authority brought possession proceedings the court had power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact:
61. First, it is only where a person’s ‘home’ is under threat that Article 8 comes into play, and there may be cases where it is open to argument whether the premises involved are the defendant’s home (eg where very short-term accommodation has been provided). Secondly, as a general rule, Article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, 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.
62. Fourthly, 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.
63. Fifthly, 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. For example, section 89 of the Housing Act 1980 limits the period for which a possession order can be postponed to 14 days, or, in cases of ‘exceptional hardship’, 42 days. And some of the provisions of CPR Pt 55, which appear to mandate a summary procedure in some types of possession claim, may present difficulties in relation to cases where Article 8 claims are raised. Again, we say no more on the point, since these aspects were not canvassed on the present appeal to any significant extent, save in relation to the legislation on demoted tenancies which we are about to discuss under the third issue.
64. Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, 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’ seem to us well made.