This was one of three linked issues considered by the Supreme Court in McDonald v McDonald [2016] UKSC 28 – and perhaps the most important one.
The case relates to a property was bought by Ms McDonald’s parents for her to live in. She occupied it under a succession of assured shorthold tenancies. But her parents experienced financial difficulties and their lenders appointed receivers. They eventually gave Ms McDonald a notice seeking possession under section 21 of the Housing Act 1988.
After the possession notice was given to Ms McDonald, court possession proceedings were started. Medical evidence was produced at the hearing. According to this evidence, if the Court ordered her eviction there would be serious adverse effects to her health (she suffers from a psychiatric condition).
Under section 21, the court has no discretion other than to order possession. However, it was argued on her behalf that article 8 of the European Convention on Human Rights applied. As a result the Court should consider whether it is proportional to order possession. The county court rejected this submission as the claimant was not a “public authority” (as defined in section 6 of the Human Rights Act 1988).
But the Court added that on balance the claim would have been dismissed if proportionality could have been considered.
Her appeal to the Court of Appeal was dismissed: it agreed with the county court 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.
A further appeal to the Supreme Court has just been dismissed. In a unanimous decision the Supreme Court noted its previous decisions that proportionality can be raised only in claims for possession made by a local authority, or other public authority (see Manchester City Council v Pinnock [ 2011] 2 AC 104 and Hounslow LBC V Powell [2011] 2 AC 186). Even so, in the great majority of cases the proportionality defence should be summarily rejected.
Should this be applied to private possession claims? It was argued that as section 6(3)(a) of the 1998 Act defines ‘a court’ as a public authority, proportionality can be raised in a private possession claim. After examining the policy underlying the the introduction of assured shorthold tenancy provisions and various decisions of the European Court on Human Rights the Court rejected this submission.
Although the effect of this decision was that consideration of the other two issues was not strictly speaking necessary, the Court went on to consider them both and to reject them both. First, the mandatory nature of the section 21 procedure is Convention Compliant. Second, the most the county courts assessment of proportionality in the circumstances of this case could have resulted in, was a short postponement of the possession order.
James Driscoll is a solicitor and a writer
