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Supreme Court extends proportionality principle to introductory tenants

28 February 2011

Councils and housing associations must act proportionately when deciding whether to evict people on introductory tenancies or homeless people housed under part VII of the Housing Act, the Supreme Court has ruled.

Two of the tenants were introductory tenants, while the other was given a license to a flat on the grounds of homelessness.

The ruling builds on an earlier Supreme Court decision in Manchester City Council v Pinnock [2010] UKSC 45, which said that courts had the power to consider proportionality when deciding whether to evict tenants who had been ‘demoted’ because of anti-social behaviour (see Solicitors Journal 154/42, 9 November 2010).

Giving the leading judgment in three conjoined cases, Hounslow v Powell, Leeds v Hall and Birmingham v Frisby [2011] UKSC 8, Lord Hope said they all involved possession proceedings against people who were not secure tenants.

He said that previous decisions of the European Court of Human Rights had clearly established that where a court was asked by a local authority to make a possession order it must have the power to assess proportionality.

He went on: “In seeking democratic solutions to the problems inherent in the allocation of social housing, parliament has sought to strike a balance between the rights of the occupier and the property rights and public responsibilities of the public authority.

“The regimes that apply to introductory tenancies and demoted tenancies have been designed to address the problem of irresponsible or disruptive tenants whose presence in social housing schemes can render life for their neighbours in their own homes intolerable.”

Lord Hope said Powell had fallen into arrears with her rent, but, with her husband and four children, was now receiving various benefits, including housing benefit, which were enough to cover it.

Hall was accused by neighbours of noise nuisance and threatening and intimidating behaviour. Birmingham Council received similar complaints about Frisby, including singing and loud music, and confiscated a sound system from his flat.

Lord Hope said the basic rules were not now in doubt and where a case had “crossed the threshold of being seriously arguable” the court must consider whether the possession order was a proportionate means of achieving a legitimate aim.

He said the court would not make a declaration of incompatibility that section 89 of the 1980 Housing Act, which limits the postponement of possession orders to six weeks, was incompatible with article 8 of the ECHR.

Lord Hope allowed Powell and Hall’s appeals, but dismissed Frisby’s, on the grounds that, having requested a review of the possession order, he failed to attend the hearing.

Lord Phillips agreed for his own reasons. Lords Rodger, Walker, Brown and Collins and Lady Hale agreed with both of them.

Amandeep Bajwa, solicitor at Zermansky & Partners in Leeds, acted for Hall. Bajwa said Leeds City Council had been using introductory tenancies for a number of years for all its new tenants.

Bajwa said that, following the ruling in Pinnock and his improved behaviour, Hall had been offered a secure tenancy.

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