Proportionality and private landlords
Alice Richardson analyses the Supreme Court judgment in McDonald v McDonald and considers its significance for future cases
Earlier this year in McDonald v McDonald  UKSC 28 the Supreme Court considered whether a tenant of a private landlord could raise an article 8 proportionality defence to possession proceedings.
Article 8 of the European Convention on Human Rights provides: '(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
In Manchester City Council v Pinnock  UKSC 45 and subsequently in Hounslow London Borough Council v Powell  UKSC 8, the Supreme Court held that a person at risk of being evicted from their home by a public authority should have the right to raise the question of the proportionality as a defence to possession proceedings.
In Pinnock the Supreme Court left open the question of whether a defendant could raise a defence based on proportionality in a possession claim brought by a private landowner.
Article 1 of the First Protocol (A1P1) to the ECHR guarantees the right to property. It provides: 'Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...'
The facts in McDonald
The appellant had psychiatric and behavioural problems. In May 2005, her parents purchased a property for her to live in financed by a loan secured by a mortgage over the property. The appellant was granted a series of assured shorthold tenancies (ASTs) on the basis that rent would be covered by housing benefit.
The parents fell into arrears and in August 2008 the mortgage company appointed receivers. In January 2012 the receivers served notice on the defendant under section 21
of the Housing Act 1988, and subsequently
they issued possession proceedings in her
The appellant raised an article 8 proportionality defence. At trial the judge held that the defendant had no right to a review of the proportionality of making a possession order because her landlord was a private landlord. She appealed unsuccessfully to the Court of Appeal ( EWCA Civ 1049), and then further appealed to the Supreme Court.
There were three questions raised by the appeal:
1. Does article 8 require a court entertaining a claim for possession by a private sector owner against a residential occupier to consider the proportionality of eviction?
2. If yes, could section 21(4) of the Housing Act 1988 be read so as to comply with that conclusion?
3. If yes, would the trial judge have been entitled to dismiss the claim for possession in this case?
Does article 8 apply?
Lord Neuberger and Lady Hale delivered the unanimous judgment of the Supreme Court. On the first issue the court stated its preliminary view to be that although article 8 may be engaged, it is not open to the tenant to contend that it could justify a different order from that which is mandated by the contractual relationship between the parties. The relevant legislative provisions reflect the democratically elected legislature's view of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords.
The court considered that the contrary view would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations.
Of the argument that it is the court (itself a public authority for the purposes of section 6 of the Human Rights Act 1998) that actually makes the order for possession which deprives the tenant of their home, the Supreme Court took the view, as stated by Lord Millett in Harrow London Borough Council v Qazi  1 AC 983, that the court is 'merely the forum for the determination of the civil right in dispute between the parties' and 'once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate'.
The judges accepted that there are cases where the court can be required to balance the conflicting Convention rights of two parties (see, for example, Campbell v MGN Ltd  UKHL 22). However, those disputes arise not from contractual arrangements made between two private parties, but from tortious or quasi-tortious relationships, where the legislature has expressly, impliedly, or through inaction left it to the courts to carry out the balancing exercise.
The court then went on to consider the jurisprudence of the Strasbourg court. In brief, the court concluded that, while there was some support for the contention that article 8 was engaged, the respective states in those cases had not challenged the applicability of article 8, so that the point has not been decided. Therefore, the jurisprudence did not point to a different conclusion.
Having decided the answer on the first question the Supreme Court nevertheless went on to consider the second and third questions.
Could section 21(4) be read down?
The court concluded that it is not possible to read section 21(4) of the Housing Act 1988 so as to allow the tenant of a private landlord to challenge the proportionality of their eviction. Had the court been persuaded that it was incompatible with article 8, the only remedy would have been a declaration of incompatibility under section 4(2) HRA.
The court distinguished those provisions from the similarly worded mandatory terms considered in Pinnock and Powell. Those regimes concerned tenancies granted by public authorities which are obliged to use their powers lawfully in accordance with the general principles of public law. There is a difference between interpretation and amendment (see Ghaidan v Godin-Mendoza  UKHL 30). It was an essential principle of section 21 that private landlords letting property under an AST should have a high degree of certainty that, if they follow the correct procedures and comply with their own obligations, they will be able to regain possession of the property. Reading in an obligation to assess the proportionality of doing so would positively contradict the legislative purpose.
Entitlement to dismiss the claim
Lastly, the court went on to consider what the consequences would have been if a proportionality assessment were required. The court considered that cases in which it would be justifiable to refuse a possession order must be very few and far between. They could only be cases in which the landlord's interest in regaining possession was heavily outweighed by the gravity of the interference in the occupier's right to respect for their home.
The court concluded that while the appellants were unfortunate, they could not have justified postponing indefinitely the company's right to be repaid the loan in full. The most that the appellant could have hoped for would have been a possession order to take effect after six weeks, in accordance with section 89 of the Housing Act 1980.
The Supreme Court decision brings some long-awaited finality to an issue which has been awaiting a resolution since Pinnock and Powell were decided. The reasoning on the third issue may also provide some guidance in cases where article 8 is raised as a defence to a claim brought by a public body. There are, however, some issues arising out of the decision.
First, the reiteration from Qazi that the court is 'merely the forum for the determination of the civil right in dispute between the parties' and 'once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate' could potentially be problematic. Presumably there are circumstances where the court's role is such that it would be more than the mere forum for the determination of the civil right, and this conclusion only applies where, as here, there is a contractual relationship and legislative provisions which parliament has decided properly balance the competing interests.
Further, the conclusion that section 21(4) cannot be read down is interesting given the similarity to the provisions in Pinnock and Powell. The judgment goes into detail explaining why those provisions could be read down, with the court giving great weight to the fact that those provisions concern public authorities. The distinction seems to comes down to the nature and purpose of the statutory schemes, with the court holding that reading in an obligation to assess the proportionality of doing so would positively contradict the legislative purpose of section 21.
Lastly, the decision does not deal with the fact that housing associations routinely use ASTs which can be terminated with a section 21 notice. It may still be open to a tenant to bring an article 8 defence to possession proceedings brought under section 21 by a housing association on the basis that it would be the decision to seek possession being challenged, but this does not sit easily at all.
The court's conclusion on the first question is based on the contractual relationship between the parties and the legislative provisions which govern it. This would apply in the same way to a housing association using an AST. It is likely that this issue will require further consideration.
Alice Richardson is a barrister at Arden Chambers. She was junior counsel for the Residential Landlord's Association, which intervened in the case by way of written submissions