The Supreme Court delivered what has been described as a ‘bombshell’ in November 2010, by deciding that for possession claims brought by a public body against someone’s home, the tenant/occupier is entitled to raise a defence of ‘proportionality’ under Article 8. 


The case involved a demoted tenancy (ie a secure tenancy which had been demoted by a court order on the grounds of antisocial behaviour). But, the Supreme Court decision went far beyond the specific scope of demoted tenancies. It seems certain that all possession proceedings brought by LAs (and RSLs/PRPSHs) on the following grounds will now face a ‘proportionality’ defence: 


decisions to terminate introductory or demoted tenancies;


possession on the basis of loss of security of tenure and notice to quit (failed successions, notice by one joint T, non-occupation where T succeeds in arguing the property is their home); 


possession on the basis of no security of tenure (deceased or ex-T’s relative, trespassers, potentially temporary accommodation). 


If an Article 8 point is raised, then the court should initially consider it summarily, and if the court is satisfied that – as will usually be the case – even if the facts were established, it would still be proportionate to make a possession order, then it should dismiss the Article 8 point. Proportionality is more likely to be relevant when there are issues relating to vulnerability (eg mental illness, physical or learning disabilities, poor health or frailty) and the LA may have to explain why it is not securing alternative accommodation. 


The end result of the Supreme Court decision is that ‘proportionality’ is now firmly established within the public sector. The next question is whether (or, more likely, when) it will be extended to the private sector. See commentary on Pinnock v Manchester CC [2010] UKSC 45 (access free at www.practicalconveyancing.co.uk) in [2010] SJ 13 November 12.