Was it all worth it? Article 8 defences since Pinnock

Ian Miller reviews the key cases handed down since the Supreme Court's landmark ruling in Pinnock on Article 8 challenges.

It has been just over two and a half years since the Supreme Court sanctioned Article 8 challenges to possession proceedings in Manchester City Council v Pinnock [2010] 3 W.L.R. 1441.

Whilst the door was opened the Supreme Court said that it would only be in exceptional cases that Article 8 proportionality would give a right to continued possession where the applicant had no right under domestic law to remain. This article looks at some of the reasons advanced by litigants in support of Article 8 defences which have reached the Court of Appeal since Pinnock.

Good behaviour

In a number of cases good behaviour of varying degrees has been argued as one of the reasons argued in support of an Article 8 defence. In West Kent Housing Association v Haycraft (heard with Corby Borough Council v Scott [2012] H.L.R. 23) the argument was not so much that there had been good behaviour but that after a certain date there had been no complaints of bad behaviour against the tenant. In Birmingham City Council v Lloyd [2012] EWCA Civ 969 the defendant had behaved impeccably. However the Court of Appeal said that was not a reason which begins to help establish an Article 8 argument; all it says is that a factor which undermines an Article 8 argument, such as existed in Pinnock, does not exist.

Rent paid

Payment of rent has also featured as an argument in support of an Article 8 defence. Again the arguments have ranged from an impeccable record (Thurrock Borough Council v West [2012] EWCA Civ 1435) to paying off all the arrears the day before trial (Scott). In Scott the court said it was just about conceivable that the paying off of arrears might add a little support to an Article 8 argument based on much stronger points. In the absence of such stronger points the court described it as ‘fanciful’ to pray in aid the fact that the tenant had paid rent to the landlord which she owed as a factor which enabled her to cross the high threshold for an Article 8 defence.

Rehousing

In Haycraft the tenant argued that he would be treated as intentionally homeless if a possession order were to be made and therefore not entitled to re-housing in his own right. On the facts the Court of Appeal considered he might have to be rehoused anyway. In West the defendant was not entitled to succeed to the tenancy as there had already been a succession. In that case the local authority said they planned to rehouse him and his family.

The defendant argued that if he was to be rehoused anyway, there was less reason for evicting him from the house he had lived in for four years. The court said in Haycraft that whether a tenant would be treated as intentionally homeless was not a significant factor so far as the Article 8 proportionality argument was concerned. Article 8 was primarily concerned with respect for the defendant’s particular home as opposed to a general right to be provided with a home. Where someone has a right to be rehoused, that right weighs against an Article 8 defence prevailing, rather than the absence of such a right being a factor in favour of such a claim prevailing. The same view was taken in West.

Estoppel

Lloyd was a bold attempt by a trespasser to resist a possession order with an Article 8 argument. The judge found that the Council had raised the trespasser’s expectations by stating that he might be allowed to remain in occupation of his late brother’s premises. He served a notice to quit in relation to his own flat. This seemed to be considered the strongest part of his case. However the court held that it was clear to him that he might be allowed to remain in his deceased brother’s flat but may well not succeed and was at risk of losing both his own flat and not gaining his brother’s. It is hard to see how this argument could have succeeded unless it was sufficiently strong to make out an argument for an estoppel in which case he would not have needed to rely on Article 8.

Medical problem

This is an issue which has been raised by a number of tenants. In Lloyd the defendant trespasser said that he suffered from depression and that it might get worse if he was evicted. It was not however supported by evidence and the Court of Appeal commented that it was sad but not exceptional. In Haycraft the Court of Appeal also said that there was no good evidence that the tenant’s kidney and liver problem would be exacerbated by his eviction. In Scott the tenant argued that she had suffered a murderous attack but there was no evidence that it resulted in mental or physical injury which would render it harmful to Ms Scott to be evicted and the court considered it ‘simply irrelevant to the issue of Article 8 proportionality’. There is no doubt that in arguing medical problems defendants are aiming to come within the suggestion made by the Equality and Human Rights Commission and endorsed by the Supreme Court in Pinnock (paragraph 64) that proportionality was 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". The reported cases since Pinnock do not suggest much success in this.

Why such failure?

There has been an overwhelming failure on the part of tenants/trespassers to make out arguments on Article 8. Any Article 8 challenge impinges on a social landlord’s property rights in addition to their statutory rights and duties in relation to allocation of housing stock. The Court of Appeal has made it clear that local authorities, like other social landlords, hold their housing stock for the benefit of the whole community and are best equipped and "certainly better equipped than the courts" to make decisions about the way such stock should be administered (West).

This was evident in the cases of Scott and Haycraft which were decisions about the termination of an introductory tenancy and its equivalent. In the cases of West and Lloyd, the Court of Appeal was not prepared to interfere with decisions to evict trespassers from houses where there was no entitlement to succeed to the tenancy. Neither situation were sufficiently exceptional to justify depriving the Council of its right and duty to make management decisions and, in effect, confer on the court the power parliament had given to social landlords to select the most suitable property for the numerous and various persons who have a legal right to social housing. The other significant problem tenants encounter is what happens if possession is refused? Tenancies have either been determined or never existed in the first place; so what, if any, rights and obligations would a refusal of an order for possession create?

Given the lack of success in Article 8 defences and the massive cost in legal fees and court time, one wonders whether the Supreme Court in Pinnock should ever have allowed defendants to raise Article 8 proportionality issues in the court. The counter argument is less easy to measure – perhaps the effect of Pinnock has been to make social landlords extra careful as to how they treat the sort of people Article 8 is intended to protect.

Ian Miller is a barrister at 1 Chancery Lane. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..