Social housing: Proportionality and public law defences to possessionPrint publication
The Court of Appeal has confirmed that second succession tenants relying on proportionality and public law defences to possession claims face an uphill struggle. Walker Morris Partner Karl Anders, a Housing Litigation and Management specialist, explains.
Human rights legislation affords every person the right to respect for his or her home and the peaceful enjoyment of possessions without interference, except in accordance with the law or so far as is necessary in the public interest in a democratic society.
In the well-known case of Manchester City Council v Pinnock , the Supreme Court ruled that a person at risk of dispossession of his or her home is entitled to challenge the proportionality of an eviction by a public authority under Article 8 of the European Convention on Human Rights (the Convention), notwithstanding that, under domestic law, his or her right of occupation may have come to an end.
Tenants hoping to avoid eviction by public authorities (and other social landlords, such as Housing Associations and ALMOs) have sought to contest possession claims by mounting human rights and proportionality challenges since the law was clarified in Pinnock. (Walker Morris has previously reported on some of the key cases ).
In the recent case of Holley v Hillingdon  the Court of Appeal made some important observations which will be of particular interest to all social landlords.
Mr Holley had lived in the property all his life. His grandmother had been a secure tenant and, when she died, her husband became a secure tenant by succession. When the husband died, the local authority landlord sought possession. (Section 87 of the Housing Act 1985 (the Act) does not permit second successions to secure tenancies.) The County Court had made an order for possession, but Mr Holley appealed on the following grounds:
- by virtue of his length of occupation and mental health issues, it was arguable that he had an Article 8 proportionality defence; and
- the local authority’s second succession policy was unlawful because it did not allow for the exercise of discretion or, alternatively, if it did so allow, the local authority had failed to give proper consideration to Mr Holley’s particular case.
Mr Holley’s appeal was dismissed in its entirety. The Court of Appeal made the following helpful points
…in relation to the proportionality argument:
- the period of residence, however long, will not on its own be sufficient to found an Article 8 proportionality defence in the case of a second succession
- length of residence may form part of an overall proportionality assessment
- however, even as part of an overall assessment, length of residence is unlikely to be a weighty factor because Parliament has lawfully excluded second successions
- in this case, despite Mr Holley’s lifelong occupation and his mental health issues, the proportionality balance remained firmly tipped in the local authority’s favour because the ability to evict is a means by which a local authority vindicates its property rights and is able to perform its duties as a public housing authority.
…and in relation to the public law argument:
- the provisions of the Act dealing with succession to secure tenancies do not require local authorities to formulate and apply discretionary policies for conferring rights of second succession
- in this case, whilst the local authority’s policy did contain a form of discretion to allow persons without succession rights to be given exceptional consideration for social housing if they met certain criteria, that was not a policy about succession – it was part of a wider allocation scheme which allowed discretion to address exceptional circumstances. Mr Holley did not meet the criteria under that scheme and to have allowed him to remain in possession would have undermined the local authority’s duties to housing applicants in greater need
- crucially, even if the local authority’s policy or its decision-making process had been unlawful, it is open to a public authority to show that, even if lawful process had been followed, the outcome would have been the same for the complainant.
This is the latest in a line of cases which demonstrate the limitations of the Article 8 proportionality defence. Despite many and varied attempts, tenants are rarely successful in alleging that it is disproportionate, and therefore contrary to the protection of their human rights, for a social landlord to recover possession, when it has lawfully terminated a tenant’s right to occupy in accordance with domestic law, particularly when its duty to allocate social housing to others in need is taken into account.
This case is also helpful in its reiteration that, where any error in a social landlord’s decision making process is alleged, the landlord can still prevail if it can show that the outcome would have been the same in circumstances where it had correctly complied with that process.
  2 AC 186
 See some of our earlier, related briefings
 Anthony Holley & Anor v Hillingdon London Borough Council  EWCA Civ 1052