17 December 2018, by Connor Johnston
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 McDonalds’ 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 ( EWCA Civ 1049) dismissed her appeal.
The decision was upheld by the Supreme Court ( UKSC 28). 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  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.
Ms McDonald subsequently sought to pursue a complaint at the ECtHR. A Chamber of the court dismissed her complaint as manifestly ill-founded, endorsing the reasoning of the Supreme Court. Possession proceedings brought by private sector owners against residential occupiers involved two private individuals or entities who had ‘entered voluntarily into a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected’. If the domestic courts could ‘override the balance struck by the legislation in such a case’, by means of a proportionality assessment, the effect would be that the ECtHR would be ‘directly enforceable between private citizens so as to alter the contractual rights and obligations that they had freely entered into’. There was no precedent in the case law of the ECtHR, in a case of this type, for such a development. The UK was entitled to regulate tenancies, such as Ms McDonald’s assured shorthold tenancy, through legislation which was intended to balance the ECtHR rights of those concerned.
Click here for the judgment: FJM v United Kingdon, European Court of Human Rights (First Section) Application no. 76202/16