Human rights issues have often been prominent in housing and landlord and tenant disputes. Article 8 of the European Convention on Human Rights enshrines the principle that everyone has the right to respect for private and family life and their home. Section 6 of the Human Rights Act 1998 (“the 1998 Act”) provides that it is unlawful for a public authority to act in a way incompatible with the Convention.
What effect does this have on residential litigation? For example is an occupier entitled to defend a possession claim, relying on Article 8? Could such a challenge be mounted if under domestic law the landlord is entitled to possession? How should a court consider if it is proportionate to evict an occupier?
Public sector claims
It is settled (in principle at least) that if “proportionality” is raised in a claim made by a local authority the court must address the issue. This is the effect of two previous decisions of the Supreme Court (Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 113 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] PLSCS 59). The court has the power to assess the proportionality of ordering possession. However, it would only be appropriate to consider proportionality in highly exceptional cases (the claims related to demoted, introductory and other non-secure tenancies, all cases where as a matter of domestic law the landlord was entitled to recover possession).
However, the Supreme Court emphasised that this was confined to public sector landlords, not private owners.
Private owner claims
In McDonald v McDonald and others [2016] UKSC 28; [2016] PLSCS 169, the Supreme Court has now considered this issue in the context of the private sector. It is a decision of wide significance for private owners, tenants, advisers and others. It is not surprising that there were interventions from the Department for Communities and Local Government, the Residential Landlords Association and Shelter.
A property was purchased by Fiona McDonald’s parents for her to live in. She occupied it under a succession of assured shorthold tenancies (“ASTs”). But her parents experienced financial difficulties and their lenders appointed receivers. They eventually gave McDonald a notice seeking possession under section 21(4) of the Housing Act 1988.
In later court possession proceedings medical evidence was adduced that there would be serious adverse effects to her health if she was evicted. Under section 21(4) the court has no discretion other than to order possession. However, it was argued on her behalf that Article 8 applied as the court is a public body and that it should consider whether it is proportionate to order possession. The county court rejected this submission as the claimant was not a “public authority” (as defined in section 6 of the 1998 Act).
But significantly, the court added that if proportionality should have been considered, on balance the claim would have been dismissed.
Article 8 in private claims
McDonald’s appeal was unsuccessful – the Court of Appeal agreed that Article 8 could not be invoked in a private sector possession claim. However, it disagreed with the conclusion that the claim could have been dismissed if proportionality had to be assessed as a matter of law.
In a unanimous decision the Supreme Court rejected her appeal. There were three issues to be determined: is a court required to consider the proportionality of evicting an occupier in private accommodation?; if so, is the mandatory nature of possession claims against an AST tenant Convention-compliant; and if so, should the possession claim be dismissed in this case?
On the first and most significant of these issues, the court analysed the policies underlying the introduction of ASTs by Part I of the Housing Act 1988. A landlord under an AST has the right to recover possession by giving a notice under section 21(4) of the Act. Successive reports, said the court, suggested that this “decrease in statutory protection” has contributed to the revival of private rented accommodation.
It formed a preliminary view that, in the absence of guidance from the European Court of Human Rights to the contrary, it is not open to a tenant to argue that Article 8 is a defence where the landlord has a mandatory ground for possession. Turning to the Strasbourg jurisprudence, the court concluded that, as many of the cases concerned public sector landlords, they were of little relevance to the issue. Nothing supported the contention that Article 8 can provide a defence in private owner proceedings. The appeal on this issue was dismissed.
Convention compliance
Although this would have disposed of the appeal, the court went on to consider the other two grounds. The second issue related to the mandatory quality of the possession claim, which led the court to its conclusions in Pinnock and Powell. Although the court called this “an attractive argument”, it rejected it: Pinnock and Powell concerned public sector landlords; notices seeking possession required reasons to be given; and, unlike private landlords, public landlords are subject to the Convention. The mandatory section 21(4) procedures in the 1988 Act are, therefore, Convention-compliant.
As to the third issue, the county court, which decided that it would have been disproportionate to evict, failed to consider if there were other solutions available. The Supreme Court concluded that, if proportionality had to be dealt with, the most the occupier could have expected was a postponement of the order for up to six weeks (under section 89 of the Housing Act 1980).
James Driscoll is a solicitor and a writer
