Fiona McDonald faced a possession claim for the home her parents had bought for her and let to her on an assured shorthold tenancy. She argued that the court, as a public authority, had to consider whether eviction would be a disproportionate interference with her right to respect for her home. The Supreme Court held that, against a private landlord, the court was not required to make that case-by-case assessment, and dismissed her appeal.
Ms McDonald’s parents bought the property with a loan and let it to her as an assured shorthold tenant. There was evidence that losing her home would cause her particular hardship.
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After her parents fell into arrears, receivers sought possession in their names so that the property could be sold.
The assured shorthold scheme
Under the assured shorthold scheme in force when this case was decided, the landlord was entitled to a possession order once the statutory conditions had been met. Section 89 of the Housing Act 1980 limited how long possession could be postponed.
Parliament designed the scheme to balance tenants’ security with the availability of private rented housing.
The decisions below
The judge found that the receivers could seek possession. He considered that, if he had power to assess proportionality, the consequences for Ms McDonald would justify refusing the order.
The Court of Appeal dismissed her appeal. It agreed that article 8 could not be used to resist, or to reshape, a possession order sought by a private landlord. It also held that, even if article 8 had applied, the judge would have been wrong to dismiss the claim.
Article 8 and a private landlord
Article 8 protects respect for the home, but interference by a public authority may be justified where it is lawful and necessary for a listed aim, including the rights of others. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act incompatibly with a Convention right, unless primary legislation requires that result. In Manchester City Council v Pinnock and Hounslow London Borough Council v Powell, the Supreme Court had held that, where a local or other public authority seeks possession of a home, the court must be able to consider proportionality, though only in very highly exceptional cases would that argument properly arise, and a lawful claim would usually be proportionate. Pinnock expressly left open claims by private landowners.
Ms McDonald’s parents, and the lender, were not public authorities. Her argument was that the court itself is a public authority, so no judge could order possession of a home without first considering proportionality and the terms of any order. She accepted that a private landlord’s right to peaceful enjoyment of possessions, under article 1 of the First Protocol, would have to be balanced against her article 8 right.
Lord Neuberger and Lady Hale, with whom Lord Kerr, Lord Reed and Lord Carnwath agreed, accepted that article 8 may well be engaged when a court orders possession at a private landlord’s suit. They held that this did not entitle the tenant to an order different from that required by the contract, at least where Parliament had already balanced private landlords’ and tenants’ interests. The 1977, 1980 and 1988 Acts were that balance. Those statutes predated the Human Rights Act, but their effect had been considered in later government material and confirmed when Parliament amended them after 2000.
The Court gave several reasons. The Convention protects people against the state; it is not directly enforceable between private citizens so as to rewrite their contracts. A case-by-case defence could also interfere unpredictably with the landlord’s property rights, sometimes causing uncompensated loss, for example where vacant possession would achieve a higher sale price. It could encourage some owners to evict peaceably without going to court, because not every residential occupier is protected by the 1977 Act. Certainty and consistent rules were treated as part of the rule of law. The court, as Lord Millett had said in an earlier case, is the forum for deciding the civil right in dispute; once the landlord is entitled to possession, there is nothing further to investigate. No argument was made that the 1988 Act itself failed to protect article 8 rights.
Strasbourg decisions did not require a different result. Older admissibility decisions treated purely private disputes, including forfeiture and mortgage possession, as not engaging the state’s Convention responsibilities merely because a court decided them. Later cases in which proportionality was required mostly involved public landlords or other public powers, such as a court-ordered sale to pay creditors, rather than enforcement of a private landlord’s contractual right under a statutory scheme that was not itself said to breach the Convention. Some observations supported the view that article 8 is engaged when a court makes a possession order, but not the further step that the court must reconsider proportionality in every private case.
Reading down section 21(4)
The first holding made the remaining questions unnecessary, but the Court addressed them because of their wider importance. Section 3 of the Human Rights Act requires legislation to be read compatibly with Convention rights so far as possible. Ms McDonald compared section 21(4) with provisions for demoted and introductory tenancies, which the Court had read so as to allow a proportionality assessment in Pinnock and Powell.
Those provisions were different. Demoted and introductory tenancies can be granted only by public-authority landlords. Such landlords must act lawfully in the public-law sense, and a tenant may defend possession proceedings on the ground that the authority has acted unlawfully. A private landlord may recover possession in accordance with the law for whatever reason he chooses, and is not subject to a test of public-law reasonableness. The public-sector procedures also require reasons and a right of review. Section 21(4) is mechanical: the right notice must be given to expire at the right time. Only a public authority is obliged by section 6 to act compatibly with Convention rights.
The Court accepted that section 3 can involve a considerable departure from statutory words, but not an amendment that contradicts the scheme. Here the scheme distinguishes claims in which grounds must be proved from claims, such as this, in which none need be shown. Its essential principle is that a private landlord who follows the procedure and complies with his own obligations should have a high degree of certainty of regaining possession. Requiring a proportionality assessment based on the individual tenant’s circumstances would contradict that scheme, not follow its grain. Had incompatibility been established, the remedy would have been a declaration of incompatibility under section 4, leaving any change to Parliament. The Court was not persuaded that the legislation was incompatible.
Dismissing the claim would not have been justified
Even if proportionality had arisen and section 21(4) could have accommodated it, the judge would not have been entitled to dismiss the claim. Where proportionality is considered, section 89 leaves four practical courses: immediate possession; possession within 14 days; in exceptional hardship, possession within six weeks; or no order at all. In Powell the Court had held that section 89 could not be read so as to allow a longer postponement. Refusal, as opposed to a short postponement, would be justified only in very rare cases, where the landlord’s interest was heavily outweighed by the gravity of the interference. The Court noted that proportionality defences hardly ever succeed against public landlords except together with some other public-law factor.
The judge had relied on the modest interest arrears and the fact that the rent was up to date. That was only part of the story. The loan expired on 12 May 2013, three weeks after his judgment, and nearly £164,000 was due apart from legal costs. Sale with vacant possession offered the best chance of recovery. It was for Ms McDonald to show that an order would be disproportionate and that refusing one would not prevent the lender from recovering what it was owed. Her circumstances, however unfortunate, could not justify postponing the lender’s right to repayment indefinitely. The most that could have been hoped for was possession in six weeks.
Verdict: The Court unanimously dismissed the appeal. Article 8 did not require an individual proportionality assessment in this private landlord’s possession claim. The Court also explained why the legislation could not be read to require one.
