McDonald v McDonald and others

The Supreme Court held that a residential occupier cannot, as of right, require a court to assess the proportionality of making a possession order under section 21(4) of the Housing Act 1988 when the claimant is a private sector landlord. In the court's view the statutory scheme governing assured shorthold tenancies, read together with the Protection from Eviction Act 1977 and section 89 of the Housing Act 1980, reflects Parliament’s balancing of the occupier’s article 8 rights and the landlord’s property rights under Article 1 of Protocol 1 to the European Convention on Human Rights. Section 6 of the Human Rights Act 1998 therefore does not oblige a court to read down section 21(4) so as to import a proportionality assessment in favour of a private landlord’s tenant; if the provision were incompatible the appropriate remedy would be a declaration of incompatibility under section 4 rather than reinterpretation under section 3. The court also held that, even if a proportionality assessment had been available, it was unlikely on the evidence that the judge would have refused possession indefinitely in this case.

The appellant was a long-standing occupier of a property purchased by her parents; she suffered serious psychiatric illness and had been granted a succession of assured shorthold tenancies. Receivers appointed by the mortgagee served a section 21 notice which expired and possession proceedings were issued in the County Court. The trial judge (HHJ Corrie) accepted the respondents were entitled to possession but said that, had he been required to decide proportionality under article 8, he would have dismissed the claim. The Court of Appeal dismissed the appellant's challenge. The appellant appealed to the Supreme Court raising three issues: (i) whether a court must consider the proportionality of eviction under article 8 when the claimant is a private sector owner; (ii) if so, whether section 21(4) of the Housing Act 1988 can be read under section 3 of the Human Rights Act 1998 so as to permit such an assessment; and (iii) if both answers were yes, whether the trial judge would properly have dismissed the possession claim.

The Supreme Court considered Strasbourg jurisprudence and domestic authority such as Pinnock and Powell (which concern public authority landlords) and concluded that, although article 8 may be engaged when a court orders possession, it is not open to an occupier to use article 8 to displace the clear statutory scheme governing private sector assured shorthold tenancies. The court explained the distinction between public-authority landlords (subject to section 6 HRA) and private landlords, emphasised the legislative judgment embodied in the 1988 Act and related provisions, and stressed the limits of section 3 HRA: reading in a proportionality obligation would be inconsistent with the fundamental scheme and purpose of section 21(4). The court observed that the only appropriate remedy for any incompatibility would be a declaration under section 4. Finally, the court noted that, on the evidence, even if proportionality had been considered, the most the occupier could reasonably have expected was a short postponement, not an indefinite refusal of possession, and dismissed the appeal.

Appeal dismissed. The Supreme Court held that an occupier facing possession proceedings by a private sector landlord cannot require the court to undertake an article 8 proportionality assessment that would override the statutory scheme in section 21(4) Housing Act 1988; section 3 HRA cannot be used to read that statutory provision so as to import proportionality without contradicting the statute’s scheme, and any incompatibility should be remedied, if at all, by a declaration under section 4. Even if a proportionality assessment had been available, dismissal of the claim in this case would probably not have been justified.

County Court (His Honour Judge Corrie) — judgment 22 April 2013; Court of Appeal — appeal dismissed (see [2014] EWCA Civ 1049; [2015] Ch 357 as reported in the judgment); appeal to the Supreme Court ([2016] UKSC 28) — appeal dismissed.