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McDonald v McDonald [2016] UKSC 28

Possession claim "This appeal raises three questions. The first is whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights. The second question is whether, if the answer to the first question is yes, the relevant legislation, in particular section 21(4) of the Housing Act 1988, can be read so as to comply with that conclusion. The third question is whether, if the answer to the first and second questions is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. ... The appellant, Fiona McDonald, is aged 45 and, sadly, she has had psychiatric and behavioural problems since she was five. ... In those circumstances, her parents, who are technically the respondents to this appeal, decided to buy a property for her to occupy. ... However, owing to financial difficulties which they unfortunately encountered in their business, they failed to meet all the [loan] interest as it fell due. ... the Receivers served a notice ... indicating that they would be seeking possession of the property."

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.  

Supreme Court

McDonald v McDonald and another (Secretary of State for Communities and Local Government and others intervening)

[2016] UKSC 28B

2016 March 15 16;

June 15

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Reed and Lord Carnwath JSC

Housing— Assured shorthold tenancy— Order for possession— Private landlord seeking possession order— Tenant claiming disproportionate interference with Convention right to respect for home— Whether proportionality test applying— Housing Act 1988 (c 50), s 21(4) (as amended by Housing Act 1996 (c 52), s 98(3)) — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8

The claimants bought a property using money provided by a mortgage lender. In breach of various conditions of the mortgage, the claimants granted an assured shorthold tenancy of the property to their daughter, who had a mental disorder, without informing the lender. On the expiry of the fixed term the tenancy became an assured shorthold periodic tenancy. When the claimants became unable to pay the instalments due, the lender appointed receivers of the property who, under the mortgage conditions, had the same powers as the lender and were agents of the claimants as landlords of the property. The receivers used their powers under the mortgage to serve a notice to quit in their own names on the tenant under section 21(4) of the Housing Act 1988 and commenced possession proceedings in the name of the claimants. Section 21(4) imposed a duty on the court to make a possession order once a valid notice to quit had been served. The judge granted a possession order, rejecting the tenant’s contentions, inter alia, that the making of a possession order would amount to a disproportionate interference with her right to respect for her home, guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court of Appeal upheld the judge’s conclusion that the proportionality test did not apply where possession was sought by a private landlord. The tenant appealed. .

Held, appeal dismissed. Although jurisprudence of the European Court of Human Rights provided some support for the notion that article 8 was engaged when a judge was asked to make an order for possession of a tenant’s home at the suit of a private landlord, it was not open to the tenant, absent any clear and authoritative guidance from the European court to the contrary, to contend that article 8 could justify a different order from that which was mandated by the contractual relationship between the parties or that the judge could be required to consider the proportionality of that order, at least where, as in the instant case, there were legislative provisions which the democratically elected legislature had decided properly balanced the competing interests of private sector landlords and residential tenants. To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention was to protect citizens from having their rights infringed by the state (paras 40–46, 59, 76).

Manchester City Council v Pinnock (Secretary of State for Communities and Local Government intervening) [2011] 2 AC 104B, SC(E) and Hounslow London Borough Council v Powell (Secretary of State for Communities and Local Government intervening) [2011] 2 AC 186B, SC(E) distinguished.

Decision of the Court of Appeal [2014] EWCA Civ 1049B; [2015] Ch 357; [2015] 2 WLR 567B affirmed.

Kerry Bretherton QC and Rebecca Cattermole (instructed by Turpin & Miller LLP, Oxford) for the tenant.

Stephen Jourdan QC and Ciara Fairley (instructed by TLT LLP, Bristol) for the landlords.

James Eadie QC, Jonathan Moffett and Heather Emmerson (instructed by Treasury Solicitor) for the Secretary of State for Communities and Local Government, intervening.

Jonathan Manning, Justin Bates and Alice Richardson (instructed by Bury and Walker LLP, Leeds) for the Residential Landlords Association, intervening by way of written submissions only.

Matt Hutchings and Jennifer Oscroft (instructed by Freshfields Bruckhaus Deringer) for Shelter, intervening by way of written submissions only.

Ms B L Scully, Barrister

Referenced Legislation

Housing Act 1988 (c 50), s 21(4) (as amended by Housing Act 1996 (c 52), s 98(3))

Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8

CASES DATABASE

Full judgment: BAILII

Subject(s):

  • Miscellaneous cases🔍

Date: 15/6/16🔍

Court: Supreme Court🔍

Judge(s):

Parties:

  • Secretary of State for Communities and Local Government🔍
  • Residential Landlords Association Ltd🔍
  • Shelter🔍
  • Fiona McDonald🔍
  • McDonald🔍

Citation number(s):

What links here:
  • No pages link to this page

Published: 20/6/16 21:53

Cached: 2025-04-04 23:33:07

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