Striking the balance of conflicting interests in residential possession

United Kingdom

Summary

In McDonald v McDonald [2016] UKSC 28 the Supreme Court upheld the decision of the Court of Appeal determining that the private sector landlord who had sought an order for possession against a residential occupier was not in breach of Section 6 of the Human Rights Act 1988 (HRA) or Article 8 of the European Convention on Human Rights (the Convention).

It found that a Court does not have to give consideration to whether granting a possession order sought by a private landlord constituted a disproportionate interference with the rights of the tenant.

Facts

The Tenant occupied the property as her home under an AST granted by her parents, the Landlords. The Landlords defaulted on mortgage repayments and the lender appointed receivers. The receivers, under the terms of the mortgage, had the power to act as agent for the Landlords whereby they served a notice to determine the tenancy pursuant to Section 21(4)(b) of the Housing Act 1988 (HA 1988) and thereafter pursued possession proceedings. At first instance, the judge determined that Section 21(4) of the HA 1988 required him to make the order for possession. This was upheld by the Court of Appeal.

The Tenant suffered from a personality disorder which meant that she was susceptible to changes in her environment. Evidence was given that she would have faced real difficulties in finding alternative accommodation and that the stress and upheaval of moving home was likely to have a detrimental effect on her mental health.

The Tenant appealed to the Supreme Court raising three issues.

  1. When determining whether to grant an order for possession in favour of a private landlord against a residential occupier, should the Court consider whether the order would constitute a disproportionate interference with the Tenant’s rights under Section 6 of the HRA and Article 8 of the Convention?
  2. If yes to Issue 1, can Section 21(4) be construed to comply with that requirement?
  3. If yes to Issues 1 and 2, would the judge have been entitled to dismiss the possession claim?
Issue 1

As to whether the order for possession was a disproportionate interference, this issue was dismissed by the Supreme Court. It considered that whilst Article 8 might be engaged when the Court makes an order for possession of the tenant’s home on the request of a private landlord, Article 8 could not justify a different order from that provided for in the tenancy agreement and the legislation governing the landlord and tenant relationship. To do so would mean that the European Court of Human Rights could alter the contract made between private citizens. It considered that the statutory regime governing residential possession had sought to balance the competing interests of private landlords and residential tenants and considered that the legislation in England has been designed to adequately protect residential occupiers whilst not deterring private landlords from letting residential property.

The Supreme Court acknowledged that the Courts are “public authorities” for the purpose of the HRA but that “once it concludes that the Landlord is entitled to an order for possession, there is nothing further to investigate”.

It found no support for the argument that the judge was required to consider the proportionality of the terms of the possession order and concluded that the grant of the order following service of the statutory notice did not constitute a disproportionate interference with Convention rights.

Having dismissed the appeal on Issue 1 the Court was not required to consider Issues 2 and 3. However it proceeded to consider these issues due to their general importance.

Issue 2

If possession is disproportionate, is Section 21 HA 1998 compatible with Convention rights?
The Supreme Court considered that the language in Section 21 does not include a requirement that the Court should consider the proportionality of an order for possession. However it is worth noting that if the Supreme Court had found the possession order to be disproportionate (Issue 1), Section 21 would be incompatible with Section 4 HRA.

Issue 3

Was the judge entitled to dismiss the claim?

Section 89(1) of the Housing Act 1980 limits a Court’s power to either suspend or postpone a possession order and a refusal by the Court to grant such an order is very rare. The Supreme Court considered that if a proportionality assessment had been made, the Tenant could only have hoped for an extension of time for possession to up to six weeks, this being the maximum period permitted under Section 89(1).

Comment

Whilst not a surprising decision, it is helpful in providing clarification as to the distinctions between private sector tenancies and public sector tenancies and how the application of Article 8 differs between them. In particular, we are left in no doubt that Article 8 cannot be invoked against a private landlord when seeking to resist an order for possession correctly made.