1. Manchester CC v Pinnock: The implications for supported housing Robert Wassall Partner & Head of Social Housing Blake Lapthorn 02380 857012 robert.wassall@bllaw.co.uk

2. What we will discuss…  ‘Executive summary’  Background info.  What was the (legal) problem?  Pinnock –facts –decision  What Pinnock means in practice  What providers must/must not do  Don’t panic (yet)!

3. Here is the news….  The Good news; –over the past few years, the law has been uncertain –now, we have guidance  The Bad news – judges in the county court will make decisions about ‘proportionality’ and the application of the Human Rights Act –public authority landlords will have to review both their ‘mindset’, procedures and policies –There are more cases to come…

4. Introduction  98,000 possession claims in in 2009  Parliament has designed statutory schemes to address the competing interests of, occupiers, their landlords, neighbours and other occupiers  But, in recent years decisions by the ECtHR have complicated matters by allowing an occupier to put forward ‘human rights’ defences.

5. In general, the problem is that…  personal circumstances tend to be championed over wider interests,  tenants are seen as vulnerable rather than as robust and resourceful, and  social landlords are viewed with distrust.

6. More specifically, the problem…  Arises from the ECtHR’s interpretation of article 8 of the ECHR  Article 8 ECHR gives everyone a –‘right to respect for his private and family life, his home* and correspondence’  Several cases since 2004  Manchester City Council v Pinnock 2010

7. Meaning of ‘home’  “where a person ‘lives and to which he returns and which forms the centre of his existence”  “It will usually be the place, the physically defined area, where private and family life develops”  “A place may also be a 'home' even though the occupant has no right under law to reside there”  “Whether or not a particular habitation constitutes a ‘home’ will depend on the factual circumstances”  A property interest is not required

8. Pinnock: the legal issue  Whether article 8 of the ECHR requires; –UK courts to consider the proportionality* of evicting an occupier from his home –in claims for possession –by local authorities*

9. Pinnock family members  Mr Cleveland Pinnock lived in a property (owned by Manchester City Council), for over 30 years with;  Christine Walker and their children  Clive aged 26,  Trevor aged 23  Devon aged 21, and  Orreon and Orraine aged 19

10. Pinnock family pastimes…  Orreon: a racial Public Order Act offence committed (in breach of his ASBO)  Orreon: blackmail (obtained some £1,000 by repeated, almost daily, threats of violence against a 16-yearold) (in breach of his ASBO)  Devon: driving while disqualified (in the exclusion zone specified in his ASBO)  Christine Walker: ASBO (breached)  Total 32 ASB matters 1998- 2007 involving all the family (except tenant)  Demotion order

11. Pinnock family post demotion order…  Clive convicted of obstructing a Police Constable  Devon admitted causing death by dangerous driving and driving a vehicle whilst disqualified and uninsured.  Clive and Devon convicted of a burglary which involved an assault  The day before the lapse of the demoted tenancy, MCC served a notice seeking possession

12. Pinnock family saga continued…  Mr. Pinnock requested a review –review upheld decision  MCC then issued a claim for possession –MCC granted possession  Mr Pinnock appealed to the Court of Appeal –dismissed  Mr Pinnock then appealed to the Supreme Court…

13. Pinnock: the decision  Following ‘clear and constant line of decisions’ by ECHR,  Supreme Court departed from the previous decisions and said that  A court, which is –asked by a local authority –to make an order for possession of a person’s home –must have the power to assess the proportionality* of making the order

14. Which means…  Any occupier* has right to defend claim for possession on basis that; –eviction would be disproportionate –having regard to his/her personal circumstances

15. Which occupiers does this affect?  Introductory/Starter/Demoted tenants  Assured Shorthold tenants  Where security lost –ceased to occupy, –sub-let without consent –cannot succeed, or –joint-tenant has served notice to quit.  Occupiers who never had security  Tenants facing a mandatory right to possession  Trespassers

16. The Supreme Court said that…  As a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier* concerned  Any article 8 defence should initially be considered summarily*  these will be ‘truly exceptional cases’

17. What does ‘summarily’ mean?  this ought to mean decided at the first hearing, but  The defendant will; –be able to ‘play for time’ –be publicly funded –have no liability for costs

18. What Pinnock means: 1  Even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether

19. What Pinnock means: 2  “the conclusion that the court must have the ability to consider the proportionality of making a possession order may require certain statutory and procedural provisions to be revisited”

20. What Pinnock means: 3  “article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or a physical disability”.

21. All of which means?  Legal procedures intact –e.g. can still serve s21 notice  But; no certainty of outcome –may get final/suspended/no order  Only if occupier mentions it?!  We must rely on the ‘good sense and experience’ of County Court judges (!)  No guidance what a review of proportionality looks like  This sounds like fertile territory for appeals!

22. Example; part 1  David, lives in temp. accom.10 Downing Street  Big Society HA (a registered provider) is no longer able to deal with his erratic behaviour/ideas and serves him with notice  David no longer has any right (under domestic law) to resist application for possession  But, if David asks the Court to consider the proportionality of the decision, it must do so  Court will look at whether the decision to recover possession is ‘a necessary and proportionate means of achieving a legitimate aim’

23. Example; part 2  BSHA must be able to show that it –has considered David’s right to a home and –has balanced this against their other general housing duties –by following internal policies and –considered the proportionality* of their decision to deprive David of his article 8 rights at each stage of the process

24. Example; part 3  E.g. if BSHA had offered to move David to more suitable accommodation (if any), but he refused the offer, then;  The eviction is proportionate to the duty of BSHA to accommodate other homeless families.  But what happens if David's circumstances change (during proceedings) – e.g. he is diagnosed with a mental illness?  These circumstances may well affect the proportionality of the eviction.

25. What shall we do?  L cannot rely on ‘indefensible’ possession claims  L must be able to counter any defendant's 'it's not fair' claim,.  Each decision to evict must be –Reasoned (why) –backed up by a ‘paper trail’ (evidence) –comply with policies/procedures (doh!)  The initial decision to evict must be kept under review, from serving Notice to applying for a warrant.

26. Conclusion  It is necessary to exercise a new caution, to attain your housing management objectives  This means a more thoughtful approach to any given situation, (and keeping good written notes)  Policies should be reviewed (to ensure they comply with Pinnock) and followed

27. And finally…  More cases going to court?  More legal costs be incurred!  More delay in getting possession?  Think twice before you grant right of occupation  Get a good lawyer!

28. Manchester CC v Pinnock: The implications for supported housing Robert Wassall Partner & Head of Social Housing Blake Lapthorn 02380 857012 robert.wassall@bllaw.co.uk