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No Proportionality Assessment in Private Sector Possession Claims

The Supreme Court has today issued a landmark ruling which decisively prevents residential tenants and other occupiers in the private sector from raising article 8 defences to possession proceedings brought by their landlords.

In McDonald v McDonald [2016] UKSC 28, the Supreme Court considered two headline issues:

  1. whether a court determining a claim for possession by a private sector landlord was required by section 6 Human Rights Act 1998 and article 8 of the European Convention of Human Rights to consider the proportionality of evicting the occupier; and
  2.  if so, whether it was possible to reinterpret section 21(4) Housing Act 1988, which provides that a court shall make a possession order where proper notice has been served, so as to provide for a proportionality assessment.

In a judgment delivered by Lord Neuberger and Baroness Hale, the Supreme Court unanimously answered both of the above questions in the negative.

The main reasons given on the issue of principle were as follows:

  1. It was not open to a tenant to contend that article 8 could justify a different order from that which was mandated by the contractual relationship between the parties (para 40).
  2. The housing legislation indicated where Parliament had decided to strike the balance between the competing Convention rights of the landlord and the tenant (para 40).
  3. The effect of the appellant's argument would be to alter the contractual rights and obligations of the parties and to interfere with the article 1 protocol 1 (property) rights of the landlord in unpredictable ways, and might result in financial loss to the landlord without compensation (para 41).
  4. It could also create a perverse incentive for landlords to take the law into their own hands rather than taking the civilised course of bringing possession proceedings, since the proposed article 8 defence depended on the involvement of the court (para 42).

The essence of the judgment is perhaps contained in the following sentence of para 43:

"In the field of proprietary rights between parties neither of whom is a public authority, the state should be allowed to lay down rules which are of general application, with a view to ensuring consistency of application and certainty of outcome."

Somewhat oddly, the Supreme Court stated that the appellant had not challenged the provisions of the Housing Act 1988 on the basis that they did not properly protect the article 8 rights of assured shorthold tenants. This is odd given that the general argument of the appellant was that her article 8 rights were not properly protected if section 21(4) prevented the court from carrying out a proportionality assessment. However, it is clear that the Supreme Court's view was that the balance struck by Parliament was justifiable (para 45).

Other areas in which the court is called upon to balance conflicting Convention rights, such as in the law of privacy, were distinguished on the bases that there the relationship between the parties is not regulated by any contract, and Parliament has impliedly left it to the courts to decide where to strike the balance (para 46).

It was also held that there was no clear and constant line of Strasbourg jurisprudence that required the Supreme Court to alter its view on the merits of the argument. The Strasbourg decisions which suggested that a proportionality assessment was required had to be seen in the context of claims by public authority landlords, or materially different interferences by the court with article 8 rights, going beyond merely enforcing a contractual bargain (paras 50-58).

In any event, it was held that it would not have been possible to reinterpret section 21(4) of the Housing Act 1988. The essential purpose of this provision was that private landlords letting property under an AST should have "a high degree of certainty" of getting their property back. To read in a requirement for a proportionality assessment would "positively contradict" this (para 69).

Matt Hutchings and Jennifer Oscroft acted for interveners Shelter, who argued that in highly exceptional cases the court should be able to consider the proportionality of evicting the tenant.

John Gallagher, Principal Solicitor of Shelter, responded to the judgment as follows:

"We are disappointed that the Supreme Court has decided that human rights arguments cannot be used by private tenants to prevent or delay eviction, even in cases of exceptional hardship. We had argued that in some situations, such as terminal or serious illness, the courts should be able to consider whether it is proportionate for a private landlord to evict a tenant on a no-fault basis, without any regard for the tenant's personal circumstances. In exceptional cases, even when they have no other defence to possession, tenants of local authorities and other social landlords can ask the court to consider whether it is proportionate for their landlord to evict them, but as a result of the Supreme Court's judgment this defence is not available to private tenants, no matter how severe their health problems."

Those working in the housing sector will recall that similar arguments on behalf of public sector tenants lacking substantial security of tenure were rejected three times by the House of Lords in Qazi v Harrow LBC, Kay v Lambeth LBC and Doherty v Birmingham City Council. Public sector tenants ultimately won the right to raise an article 8 proportionality defence in Manchester City Council v Pinnock. However, this was only after the unsuccessful tenant in Kay had taken her case to Strasbourg and won there.

Unless and until there is a clear rejection by Strasbourg of the decision in McDonald v McDonald, it seems that this landmark ruling represents the end of the road for the domestic article 8 debate on private sector possession proceedings.

You can read the judgment in full here.