Vivienne Sedgley considers the recent Supreme Court case of McDonald v McDonald  UKSC 28.
The law remains as it was previously assumed to be: Article 8 ECHR cannot be a defence to possession proceedings brought by a private sector landlord. Therefore, the court is not required to consider proportionality.
It is well established that Article 8 ECHR can be a defence to possession proceedings brought by a public sector landlord. The appellant invited the Supreme Court to extend this to private sector landlords.
It is worth noting that there may not have been much cause for celebration amongst tenants even if the appeal were successful; Shelter indicated that a claim for possession brought by a public sector landlord is hardly, if ever, successfully defended on the basis of Article 8 alone.
The main question to be answered by the Supreme Court was:
When a private sector landlord brings a claim for possession against a residential tenant, do Article 8 ECHR and section 6 HRA 1998 require the court to consider the proportionality of evicting the tenant?
The appellant (“FM”) had longstanding psychiatric and behavioural problems. As a result, she had lost two public sector tenancies and was unable to work. Therefore, her parents bought a house for her to occupy. They granted her a series of assured shorthold tenancies ("ASTs") and FM’s rent was covered by housing benefit.
FM’s parents had purchased the house with a loan from Capital Home Loans Ltd (“CHL”), which was secured with a registered legal charge over the property. They subsequently encountered financial difficulties and CHL appointed receivers for the property under section 109 Law of Property Act 1925. Therefore, the receivers were entitled to take steps in relation to the property in the names of FM’s parents. (Hence, FM’s parents were technically respondents to the appeal.)
FM’s rent continued to be paid regularly. However, FM’s parents’ loan was in continuous arrears. Therefore, the receivers served a notice on FM seeking possession of the property under section 21(4) Housing Act 1988.
The receivers issued possession proceedings against FM in the name of her parents in the County Court at Oxford. A psychiatrist gave evidence that, if evicted, FM’s mental health was likely to deteriorate significantly and she was likely to end up homeless.
The Judge found that the mandatory requirements of section 21(4) Housing Act 1988 gave him no option but to make an order for possession. He was not required to consider proportionality because the landlord was not a public authority.
However, if he had been entitled to consider proportionality, he would have refused to grant possession; the circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate.
Therefore, if the Judge’s decision not to consider proportionality could be successfully appealed, FM might be able to stay in the house. FM duly appealed to the Court of Appeal, however the appeal was dismissed ( EWCA Civ 1049). A further appeal was then made to the Supreme Court.
Supreme Court Judgment
It was unanimously held that a court is not required to consider proportionality when a private sector landlord brings a claim for possession against a residential tenant.
Article 8 ECHR cannot justify the court making a different order from that mandated by contract where Parliament has legislated to balance the competing interests of private sector landlords and tenants. To hold otherwise would effectively be to hold that the ECHR was directly enforceable between private citizens.