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McDonald: Settling unanswered questions

David Sawtell and Erol Topal consider the Supreme Court decision on the application of article 8 to private sector lettings (Solicitors Journal article)

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In the much-awaited decision in McDonald (by her litigation friend Duncan J McDonald) v McDonald and others [2016] UKSC 28, the Supreme Court unanimously rejected the notion that the court must consider proportionality under article 8 of the European Convention on Human Rights (ECHR) where a claim for possession is brought by a claimant that is not a public authority – a question left unanswered in its judgment in Manchester City Council v Pinnock [2011] 2 AC 186.

The appellant in McDonald suffered from a personality disorder. Aged 46, she had not worked since 1999, during which period she had lost two public sector tenancies. Her parents, with the assistance of a mortgage, purchased a property and let it to her under an assured shorthold tenancy, but they were unable to meet loan repayments and the lender appointed receivers. The receivers sought possession and served notice on the appellant under section 21 of the Housing Act 1988. At the possession trial, the judge making the order for possession indicated that, on balance, he would have dismissed the claim had he been required to consider proportionality. The Court of Appeal dismissed an appeal.

Before the Supreme Court it was argued that article 8 was engaged in private claimant cases because the court that would grant the possession order was itself a public authority; however, that argument was rejected.

In its preliminary view, the court concluded that article 8 could not be used to justify a different order than that mandated by the contractual relationship between the parties, particularly where legislation had been enacted to balance the competing interests of private sector landlords and residential tenants. To do otherwise could render the ECHR directly enforceable as between private citizens so as to alter their contractual rights and obligations.

Other Strasbourg authorities provided some support for the contention that article 8 was engaged in a claim for possession against a residential occupier, but they were inconsistent and did not support the notion that the judge hearing a claim for possession was required to consider proportionality.

The legislative framework of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980, and chapters 1 and 4 of the 1988 Act reflect the state’s assessment of where to strike a balance between the article 8 rights of residential tenants and the article 1, protocol 1, rights of private sector landlords when contractual rights have ended.

Article 8 argument

Having rejected the tenant’s argument that she could raise an article 8 defence, the Supreme Court went on to consider what the result would have been if she had been able to raise this as an argument. This part of the decision is strictly obiter, but it provides very useful guidance for practitioners seeking to either raise or defeat this defence where there is a public authority landlord.

The charity Shelter filed evidence to show that the proportionality defence permitted by Pinnock rarely, if ever, succeeds against public authority landlords. In McDonald, the court confirmed that it is not easy to imagine circumstances where the occupier’s article 8 rights would preclude the making of a possession order, as opposed to a short postponement.

In McDonald, the court noted that the purchase mortgage had expired before the judge gave his judgment and that the lenders would be entitled to their money back. The best chance to recover it would be to sell the property with vacant possession. It was difficult for the court to see how the appellant’s circumstances could justify postponing indefinitely the lenders’ right to be repaid.

Public or private landlord?

The dividing line between private landlords and public authorities can become blurred. Local housing authorities have increasingly used different bodies to fulfil their public housing duties.

In R (on the application of Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, the Court of Appeal held that a number of bodies acting as ‘social landlords’, including housing associations, are assumed to be public authorities when managing (including evicting from) social housing.

When considering whether the act of eviction is public or private, the court has to consider its context and weigh up a range of factors. In R (on the application of Macleod) v Governors of the Peabody Trust [2016] EWHC 737 (Admin), it was emphasised that the Weaver principles have to be applied to the facts of each particular case.

The McDonald decision is to be welcomed because it settles an extremely important unanswered question. However, practitioners will need to consider carefully whether an article 8 defence will lie against a particular landlord in respect of an individual decision to evict. McDonald emphasises the importance of this distinction. SJ

David Sawtell & Erol Topal / 12th Jul 2016


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