Tag Archives: possession procedings

Proportionality assessment did not apply to private possession claim

In the Supreme Court case of McDonald v McDonald and others [2016] Fiona McDonald, was aged 45 and suffered from a personality disorder. In May 2005 her parents bought 25 Broadway Close, Witney (“the property”), with the aid of a mortgage from Capital Home Loans Ltd (“CHL”)

Her respondents granted her a series of assured shorthold tenancies of the property, culminating in one granted in July 2008 for a term of one year. Miss McDonald continued to live at the property.

The parents got into arrears with CHL and do did Miss McDonald’s rent. CHL appointed Receivers of the property. The Receivers subsequently served a notice, in the name of Miss McDonald’s parents, on Miss McDonald indicating they would be re-possessing the property. When that notice expired, they issued possession proceedings in the name of the parents.

Miss McDonald said that the court should have taken into account the proportionality of making an order for possession, for the purposes of Article 8 of the European Convention on Human Rights (“the ECHR), and, that that would have entitled the court to withhold making an order for possession despite being apparently mandated to do so by section 21(4) of the Housing Act 1988 (“the 1988 Act”) and section 89(1) of the Housing Action 1980 (“the 1980 Act”), which restricts how long a court can postpone an order for possession taking effect.

The Supreme Court faced three issues:

1. whether section 6 of the Human Rights Act 1998 (“the HRA”) and article 8 of the ECHR required a court to consider the proportionality of evicting the occupier when entertaining a claim for possession by a private sector owner against a residential occupier;

2. if the answer to 1. was yes, whether the relevant legislation, in particular section 21(4) of the 1988 Act, can be read so as to comply with that conclusion; and

3. whether, if the answer to 1 and 2 was yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done, on the grounds that the claim for possession was disproportionate.

The Supreme Court said where the party seeking possession is a public authority within the meaning of section 6 of the HRA the occupier can raise the question of the proportionality of making an order for possession. However in the case of Manchester City Council v Pinnock [2011], the Supreme Court made it clear that it’s judgment had no application to cases where the person seeking possession was a private landowner.

The Supreme Court’s preliminary view was that it is unarguable for a tenant to say article 8 overrides the contractual relationship between the parties, at least where the legislative provisions of a democratically elected domestic legislature has balanced the competing interests of private sector landlords and residential tenants. Otherwise, the ECHR would be directly enforceable between private citizens so as to alter their contractual rights and obligations.

As to 2. above, had the court been persuaded that Miss McDonald was right on issue 1., a declaration of incompatibility under section 4 of the HRA would have been the only remedy.

As to 3, the judge had not considered whether, if the claim for possession had been disproportionate, there might have been other solutions to the problem than dismissing the claim.

Where (rarely) a court was required to assess the proportionality of making a possession order, it’s powers to suspend or postpone the effect of that order are much restricted by section 89(1) of the 1980 Act.

Very few cases justified a refusal, as opposed to a postponement, of a possession order and could only be cases where the gravity of the interference in the occupier’s right to respect for their home heavily outweighed the landlord’s interest in regaining possession.

Here, it seemed likely that on a proportionality assessment the most Miss McDonald could hope for would have been an order for possession in six weeks’ time – the maximum permitted by section 89(1) of the 1980 Act.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.