Proportionality in Possession Claims

In McDonald v McDonald the Supreme Court was asked to decide whether the courts should be accounting for the proportionality of evicting a residential tenant (in light of section 6 of the Human Rights Act 1998 (HRA) and Article 8 of the European Convention on Human Rights (ECHR)).

The appellant tenant, who suffered from a personality disorder, rented a property from her parents on a series of assured shorthold tenancies. When the parents failed to make payments to the mortgagee, it appointed receivers, who served a notice under section 21 of the Housing Act 1988 (HA) and issued proceedings for possession of the property. The judge held that the receivers had authority to bring the proceedings and so had to make an order for possession by reason of the mandatory terms of s21 HA. The judge also found that, despite a psychiatrist’s evidence that the tenant’s eviction would have a significantly detrimental effect on her mental health, the court was not required to consider the proportionality of making an order for possession against a residential occupier, as that the person seeking possession was not a public authority.

The decision was appealed to the Supreme Court. There were three issues:

  1. whether a court, when considering a claim for possession by a private-sector landlord against a residential occupier, was required to consider the proportionality of evicting the occupier (in light of s6 HRA and Article 8 ECHR);
  2. if so, whether s21(4) HA can be read so as to comply with ECHR;
  3. whether the trial judge would have been entitled to dismiss the claim for possession, as he said he would have done had he been entitled to consider proportionality of making the order.

The Supreme Court said:

  1. That it accepted that when a court makes a possession order at the behest of a private landlord Article 8 ECHR is engaged. It is not, however, open to a tenant to contend that this can justify a different order from that which is mandated by the contractual relationship governing the parties in respect of which a democratically elected legislature has prescribed how the competing interests of private sector landlords and residential tenants are balanced. The making of the possession order by the court, as a public authority for the purposes of HRA, does not mean that a tenant is entitled to have ECHR rights considered by the court.
  2. There were three reasons why s 21(4) HA could not be read down under s 3 HRA 1998. First, introductory and demoted tenancies can only be granted by public sector landlords who are obliged to act lawfully. Secondly, although s 21 HA was in similarly mandatory terms, the reason-based process was in stark contrast to the purely mechanical operation of s 21 HA. Thirdly, s 6 HRA 1998, requiring a public authority to act compatibly with ECHR rights does not apply to private landlords.
  3. Finally, the Supreme Court re-affirmed the position that the language of section 89(1) of the Housing Act 1980 was so strong that any reading down to enable the court to postpone the execution of a possession order for a longer period than the statutory maximum would go well beyond what s 3 HRA  permitted.

The bottom line is that the decision in McDonald confirms that an occupier cannot raise ECHR Art 8 rights where the landlord is not a public authority within the meaning of HRA 1998.

Oliver Kew

Published on 02/09/2016

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