McDonald v McDonald and others

A residential occupier cannot invoke article 8 to require a court to assess the proportionality of granting possession to a private landlord where the parties’ contractual rights are governed by legislation which balances the tenant’s rights against the landlord’s property rights.

Section 21(4) of the Housing Act 1988 cannot be read under section 3 of the Human Rights Act 1998 as incorporating an individual proportionality assessment. Such a reading would contradict the legislative scheme of assured shorthold tenancies. If that scheme were incompatible with Convention rights, the appropriate remedy would be a declaration of incompatibility.

The appellant occupied a house bought by her parents under a series of assured shorthold tenancies. A mortgage funded the purchase. After the parents fell into arrears, receivers appointed by the lender served notice under section 21 of the Housing Act 1988 and brought possession proceedings in the parents’ names.

The appellant had serious psychiatric and behavioural difficulties. Expert evidence indicated that eviction could cause a grave deterioration in her mental health. The County Court held that article 8 did not permit a proportionality defence against a private landlord, although the judge would otherwise have dismissed the possession claim as disproportionate.

The Court of Appeal dismissed her appeal in [2014] EWCA Civ 1049; [2015] Ch 357. The Supreme Court considered whether article 8 required an individual proportionality assessment, whether section 21(4) could accommodate one, and whether the County Court could have refused possession.

1. The appeal was dismissed unanimously. Although article 8 may be engaged when a court grants possession of a tenant’s home to a private landlord, it does not entitle the tenant to seek an order different from that required by the parties’ contractual relationship and the governing legislation. The court is the forum in which the parties’ civil rights are determined. It does not thereby acquire a power to alter those rights through an individual proportionality assessment.

2. The statutory scheme reflects the state’s assessment of the proper balance between a tenant’s article 8 rights and a private landlord’s rights under article 1 of the First Protocol. The Protection from Eviction Act 1977, section 89 of the Housing Act 1980, and the Housing Act 1988 confer significant but limited protection while preserving certainty for private landlords. Requiring proportionality to be reconsidered in each possession claim would make the Convention directly enforceable between private parties and undermine that certainty.

3. The Strasbourg authorities did not establish that a court must assess proportionality when enforcing a private landlord’s contractual right to possession under a Convention-compliant statutory regime. Decisions concerning public landlords, judicial sales, partition proceedings or formerly state-owned property arose in materially different contexts.

4. Section 21(4) of the Housing Act 1988 could not be read under section 3(1) of the Human Rights Act 1998 as requiring a proportionality assessment. Unlike the reasons-based procedures governing public authority tenancies, section 21(4) is mechanical. Reading such a requirement into it would contradict the distinction between tenancies requiring grounds for possession and assured shorthold tenancies requiring none. It would amount to statutory amendment rather than interpretation. Had incompatibility been established, the remedy would have been a declaration under section 4.

5. Even if proportionality had applied, refusing possession would have been justified only where the landlord’s interest was heavily outweighed by the interference with the occupier’s home. Section 89(1) of the Housing Act 1980 permits postponement for no more than six weeks where exceptional hardship exists. On the evidence, the lender’s matured right to repayment meant that the appellant could at most have obtained a possession order taking effect after six weeks.

1. United Kingdom Supreme Court: The appeal was dismissed unanimously. The court affirmed that article 8 did not provide a proportionality defence to this private landlord’s possession claim: [2016] UKSC 28.

2. Court of Appeal: The appeal was dismissed. The court held that article 8 could not be invoked against a private landlord and that, even if it applied, the County Court should not have dismissed the possession claim: [2014] EWCA Civ 1049; [2015] Ch 357.

3. Oxford County Court: Judge Corrie held that article 8 did not permit a proportionality defence against a private landlord. He stated that, had proportionality applied, he would have dismissed the claim because of the appellant’s exceptional circumstances.