Article 8 as a defence against a private sector possession claim

Friday 15 July 2016

McDonald v McDonald [2016] UKSC 28, 15 June 2016

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McDonald v McDonald [2016] UKSC 28, 15 June 2016

Ms McDonald was a vulnerable adult who suffered from a mental disorder which made her upset by changes in her environment. She occupied a property under an assured shorthold tenancy. Her parents were the landlords. They used the rent from the property, which was paid by housing benefit, to pay off the mortgage secured against the property.

Following a change in Ms McDonald’s parent’s circumstances they became unable to afford the payments under the mortgage. The lender proceeded to appoint a receiver. The receivers then served a s21 Housing Act 1988 notice on Ms McDonald. Possession proceedings were issued and the judge at first instance granted a possession order.

Ms McDonald sought to appeal arguing that the possession order resulted in a disproportionate breach of her rights under Article 8 ECHR. The Court of Appeal ([2014] EWCA Civ 1049) dismissed her appeal.

The decision was upheld by the Supreme Court. Having considered the totality of the recent Strasbourg case law, the Court decided that when entertaining a claim for possession against a private sector landlord, a court – despite being a public body for the purposes of s6 Human Rights Act 1998 – was not required to consider the proportionality of evicting the occupier.

To hold otherwise would be to give Article 8 horizontal effect, as between citizen and citizen rather than protecting citizens from the power of the State.

Even if this were not the case, it was not possible within the meaning of s3 Human Rights Act 1998 to read s21 in such a way as to render it compatible with Article 8 ECHR, thereby allowing it to be considered.

Despite similarities between the language of s21 and s143D Housing Act 1996 (relating to demoted tenancies) – which the Supreme Court in Manchester City Council v Pinnock [2011] 2 AC 104, held could be read compatibly with Article 8 – the statutory context of Housing Act 1988, governing private sector tenancies, was very different.

To read s21 so as to allow Article 8 to be invoked, would go against the grain of the provision, which allows a landlord to obtain possession without having to show any good reason, providing landlords at the point of letting with certainty that they will be able to regain possession of their property if they follow the correct procedures.

Finally, in any event, the facts of the case would not have justified refusing a possession order.

Click here for the judgment.

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