McDonald v McDonald [2016] UKSC 28

Fiona McDonald, a vulnerable tenant with mental health issues, faced eviction from a property bought by her parents through a buy-to-let mortgage after receivers were appointed. The Supreme Court held article 8 proportionality cannot be invoked against private sector landlords seeking possession.

Facts

The appellant, Fiona McDonald, aged 45, suffered from longstanding psychiatric and behavioural problems, including an emotionally unstable personality disorder. Unable to work or sustain prior public sector tenancies, her parents (the respondents) purchased 25 Broadway Close, Witney in May 2005 with a loan from Capital Home Loans Ltd (CHL), secured by a registered legal charge. They granted her a series of assured shorthold tenancies (ASTs), the last being a one-year term from 15 July 2008, with rent covered by housing benefit.

The respondents fell into arrears with the interest payments on the loan due to business difficulties. In August 2008, CHL appointed receivers under section 109 of the Law of Property Act 1925. In January 2012, the receivers, acting in the respondents’ name, served a section 21 notice under the Housing Act 1988, and on its expiry in March 2012 issued possession proceedings in Oxford County Court.

Expert psychiatric evidence from Dr Sargent indicated that eviction would have a major detrimental effect on the appellant’s mental health, with the possibility of homelessness, self-harm, suicide, or violence to others.

Issues

The appeal raised three questions:

1. Whether a court, when entertaining a possession claim by a private sector owner against a residential occupier, must consider the proportionality of eviction under section 6 of the Human Rights Act 1998 and article 8 ECHR.
2. If so, whether section 21(4) of the Housing Act 1988 can be read compatibly under section 3 of the 1998 Act.
3. If so, whether the trial judge would have been entitled to dismiss the possession claim, as he indicated he would have done.

Arguments

Appellant

Ms Bretherton QC argued that, because a court is itself a public authority under section 6(3)(a) of the 1998 Act, no judge may make a possession order without considering article 8 proportionality. The position of a private sector tenant was said to be similar to that of a public sector tenant under Manchester City Council v Pinnock and Hounslow LBC v Powell, subject to a balancing exercise with the landlord’s A1P1 rights. It was further argued that section 21(4) could be read down in the same way as the provisions considered in Pinnock and Powell.

Respondents

Mr Jourdan QC relied on the Commission decisions in Di Palma v United Kingdom and Wood v United Kingdom, which held that purely private law relationships did not engage the State’s Convention responsibilities. The statutory scheme already reflected Parliament’s balance between landlord and tenant interests.

Judgment

First issue: proportionality

The Supreme Court (Lord Neuberger and Lady Hale, with whom Lord Kerr, Lord Reed and Lord Carnwath agreed) held that, although article 8 may be engaged when a court makes a possession order at the suit of a private sector landlord, it is not open to a tenant to argue that article 8 justifies a different order from that mandated by the contractual relationship, where Parliament has enacted legislation balancing competing interests. The Protection from Eviction Act 1977, section 89 of the Housing Act 1980, and Chapters I and IV of the 1988 Act reflect that legislative balance.

The Court emphasised that to hold otherwise would mean the Convention being directly enforceable between private citizens to alter contractual rights, contrary to its purpose of protecting citizens from State infringement. It would also unpredictably interfere with the landlord’s A1P1 rights and create a perverse incentive to avoid courts by using self-help. The Court endorsed Lord Millett’s observation in Harrow LBC v Qazi that the court is merely the forum for determining civil rights between the parties.

Examining the Strasbourg jurisprudence, the Court found the Commission decisions in Di Palma and Wood remained authoritative for private sector cases. Cases such as Zehentner v Austria, Zrilić v Croatia, Brežec v Croatia, and Mustafa and Tarzibachi v Sweden did not establish that article 8 could be invoked to curb a private landlord’s contractual right to possession where the statutory regime was not itself said to infringe the Convention.

Second issue: section 3 reading down

Although obiter, the Court held section 21(4) could not be read down to require proportionality assessment. Demoted and introductory tenancies under the 1996 Act involved public authority landlords subject to public law constraints, reasons-based processes, and section 6(1) of the 1998 Act. Section 21(4) is purely mechanical. Drawing on Lord Rodger’s distinction in Ghaidan v Godin-Mendoza between interpretation and amendment, reading in a proportionality requirement would not ‘go with the grain of the legislation’ but positively contradict its essential principle that private landlords following correct procedures should have a high degree of certainty of regaining possession.

Third issue: would dismissal have been justified?

Even had proportionality been available, the Court doubted the judge’s obiter view that he would have dismissed the claim. The court has four options under section 89(1) of the 1980 Act: immediate possession, possession within 14 days, possession within six weeks in cases of exceptional hardship, or refusal of an order. Refusal would be appropriate only where the landlord’s interest is heavily outweighed by the gravity of interference with the occupier’s home. Given the loan was due to be repaid shortly after judgment, with around £164,000 outstanding, and sale with vacant possession was likely necessary, the most the appellant could realistically have hoped for was a six-week postponement.

Implications

The decision draws a clear distinction between possession claims brought by public authority landlords (where Pinnock and Powell require courts to consider proportionality in exceptional cases) and those brought by private sector landlords (where article 8 cannot be invoked to override the contractual and statutory framework). The judgment reinforces that the Convention primarily protects individuals against the State, not against other private parties, and that Parliament’s legislative balance between landlord and tenant interests in the private rented sector is to be respected.

For practitioners, the case confirms that section 21 ‘no fault’ possession proceedings against AST tenants cannot be resisted on article 8 proportionality grounds. The decision is significant for the buy-to-let and private rental sectors, providing certainty that compliance with section 21 procedural requirements will secure possession. The Court left open the possibility of a challenge to the statutory regime itself as failing to protect article 8 rights, but no such argument was advanced here. The judgment also clarifies the limits of section 3 of the 1998 Act, distinguishing interpretation from impermissible amendment, and indicates that even where proportionality is available, outright dismissal of possession claims will be exceedingly rare.

Verdict: Appeal dismissed. Article 8 proportionality cannot be invoked by a residential occupier against a private sector landlord seeking possession under section 21 of the Housing Act 1988; section 21(4) cannot be read down to require such an assessment; and in any event the trial judge would not have been entitled to dismiss the possession claim.

Source: McDonald v McDonald [2016] UKSC 28