After 6 years of waiting to see whether a tenant of an assured shorthold tenancy provided by a private landlord can raise an article 8 (right to respect for private, family and home life) proportionality defence to possession proceedings pursuant to section 21 of the Housing Act 1988, the Supreme Court has this morning given the answer in the decision of McDonald v McDonald  UKSC 28.
The brief relevant facts of McDonald v McDonald  UKSC 28 are that Ms McDonald suffers with mental health issues, principally emotionally unstable personality disorder. Her parents therefore decided to purchase a property for her to live in, with the assistance of a loan charged to the property. Ms McDonald’s parents subsequently encountered financial difficulties and therefore Law of Property Act receivers were appointed and (albeit not immediately) served a valid section 21 notice on Ms McDonald.
At first instance HHJ Corrie held that procedurally the possession claim was correct and therefore unless Ms McDonald was entitled to rely on a proportionality defence under article 8 he was bound to make a possession order. The judge went on to conclude that Ms McDonald was not entitled to raise an article 8 defence in this case and therefore a possession order would be made. However, he also went on to consider what he would have done if he was wrong about that and answered this by saying he would have dismissed the claim for possession had Ms McDonald been able to raise an article 8 defence.
An appeal to the Court of Appeal was dismissed and this further appeal to the Supreme Court was likewise dismissed.
The Issues Before the Supreme Court
Three issues were identified by the Supreme Court for determination in this case and they were as follows:
- Whether a court when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights?
- If the answer to (1) was in the affirmative, whether section 21 of the Housing Act 1988 can be read in a way that permits that conclusion?
- Whether the trial judge would have been entitled to dismiss the claim for possession as he said he would have done?
The Supreme Court concluded that the court was not required to consider the proportionality of the order it would have made under the provisions of the Housing Act 1988 (section 21) and the Housing Act 1980 (section 89 – the power to postpone for up to 6 weeks) as contended for by the Appellant, relying on article 8. The court therefore recognised that it did not need to address the second and third issues but considered that they were still of potential importance in providing guidance and therefore did so.
The Decision and Reasoning on Issue (1)
The Supreme Court first reached its own preliminary view of the case before turning to the jurisprudence of the European Court of Human Rights to see whether that produced a different result.
The Supreme Court (joint judgment of Lord Neuberger and Lady Hale with which the other members agreed) stated:
“In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant’s home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants.” (Para 40).
In expanding on the balancing exercise the court said:
“In effect the provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, reflect the state’s assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract has ended.” (Para 40)
Finally, in rejecting the argument to the contrary the Supreme Court observed:
“To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state.” (Para 41).
The Supreme Court then went on to consider in detail the relevant cases from the European Court on Human Rights before concluding that they did not lead to a different conclusion from their preliminary view.
The Decision and Reasoning on Issue (2)
The Supreme Court concluded that it would not be possible to read section 21(4) of the Housing Act 1988 in a way that permitted a proportionality assessment to be carried out where the landlord was private and therefore had it been persuaded on issue (1) it could only have made a declaration of incompatibility leaving it to Parliament to address the issue. The court’s reasoning was that the essential principles disclosed by the provisions of the Housing Act 1988 were that: “private landlords letting property under an AST should have a high degree of certainty that, if they follow the correct procedures and comply with their own obligations, they will be able to regain possession of the property. Reading in an obligation to assess the proportionality of doing so in the light of the personal circumstances of the individual tenant would not “go with the grain of the legislation” but positively contradict it.” (Para 69).
The Decision and Reasoning on Issue (3)
On the third issue the Supreme Court said that the judge did not consider the alternatives to dismissing the claim for possession. The Supreme Court identified four options for consideration:
- An immediate possession order;
- A 14 day possession order;
- A possession order postponed for 6 weeks on grounds of exceptional hardship; and
- Dismissing the claim for possession altogether.
As to the fourth of these, the Supreme Court commented that: “The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between, even when taken as a proportion of those rare cases where proportionality can be successfully invoked.” (Para 73).
Since 2010 when the doors for a proportionality defence under article 8 in the context of public authority landlords was opened there has been a concerted effort to restrict its scope. This case closes that door completely where the landlord is a private individual bringing a claim under section 21 of the Housing Act 1988 and will no doubt be a great relief to private landlords. As for social landlords and their tenants, it leaves a number of potential issues now to be grappled with in the context of article 8 defences, including the re-emerging one of whether a particular private registered social landlord is a public authority (see the recent decision in R (on the application of MacLeod) v Peabody Trust  EWHC 737).