The Supreme Court handed down its judgment in the joined cases of Powell and Others v Mayor and Burgesses of the London Borough of Hounslow and Others [2011] UKSC 8 on 23 February 2011, which concerned the making of orders for possession of a premises where the occupier is a non-secure tenant person’s home in favour of a local authority, and whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it.

The joined cases involved non-secure tenants living in either accommodation provided under the homelessness regime in Part VII of the Housing Act 1996 or under introductory tenancies in Part V of the Housing Act 1996. The appellants claimed that the property involved was their “home” for the purposes of article 8(1) of the European Convention on Human Rights which provides that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”. To avoid a breach of article 8, any interference with this right must be justified under article 8(2) as being “necessary in a democratic society” and that this must be in accordance with the law, for a legitimate aim, and proportionate to the aim the local authority is seeking to achieve. The appellants alleged that since the court did not assess the proportionality of making the orders against them, there had been a breach of their article 8 rights.

The Court unanimously held that, following Manchester City Council v Pinnock [2010] UKSC 45, a court would be required to consider whether any possession order sought in respect of a person’s home for the purposes of article 8 was necessary in a democratic society. In Pinnock the Supreme Court had held that article 8 requires that a court which is being asked to make a possession order against a person occupying a property under the “demoted tenancy” scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts.

Lord Hope, delivering the leading judgment, set out general guidance on how to evaluate the proportionality of making possession orders under the homelessness and introductory tenancy schemes. Following Waller LJ in Salford City Council v Mullen [2010] EWCA Civ 336, such an argument must meet the high threshold of being seriously arguable that the law which enables the county court to make the order is itself incompatible with article 8, and this will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim, and any such order ought to vindicate the authority’s ownership rights and enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of article 8 as such a requirement would collapse the distinction between secure and non-secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought.

While section 127(2) of the Housing Act 1996 gave no discretion in the case of an introductory tenancy, it did not prevent the court considering proportionality and thus was not incompatible with the article 8 right. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it was open to the court to consider whether that procedure had been lawfully followed in respect of the appellant’s article 8 rights. Section 89 of the Housing Act 1980, however, provides that a court making a possession order cannot postpone the date of possession for more than fourteen days or, in the case of exceptional hardship, six weeks, and the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8.