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Human Rights & Private Sector Tenants

Published February 2017

McDonald v McDonald [2016] UKSC 28; [2016] 3 WLR 45 was a far from typical claim by a private landlord to recover possession from their tenant by means of a s21 notice. Nonetheless, the Supreme Court took the opportunity to make clear that the individual circumstances of the tenant of a private landlord will never be unusual or unfortunate enough to grant them a defence to a s21 possession claim on the basis of their human rights under Article 8 of the ECHR. This was an orthodox and unsurprising conclusion, which dovetails with the court’s consideration of the position with regard to public landlords in Pinnock [2010] UKSC 45; [2011] 2 AC 104, and Powell [2011] UKSC 8; [2011] 2 AC 186.

The single, unanimous judgment gave three reasons for this conclusion.

The first was that that, as a matter of first principles, the court could not be required to perform a balancing exercise between the tenant’s Article 8 rights, and a private landlord’s rights under Article 1 of the First Protocol to the ECHR, in each and every case where it, as a public authority, was asked to make an order for possession. To even allow for the possibility of this would (a) allow private citizens to re-write contractual bargains that they had struck with each other on the basis of the ECHR; in circumstances (b) where Parliament had legislated as to the effect that a s21 notice was to have on that contract and was therefore to be taken to have itself determined the proper balance to be struck between the parties’ respective Convention rights; and (c) where this would operate capriciously as between private landlords who were and were not able to recover possession without recourse to the courts. There being no support in the Strasbourg jurisprudence for the contrary position, the Supreme Court effectively dismissed the appeal on the basis of this first principles approach.

The second reason was that, even if wrong as to the above, it was not possible to read the underlying legislation in such a way as to allow for such a proportionality exercise to be conducted by the court. The only other option open to the court was to issue a declaration of incompatibility to Parliament in relation to the legislation. It appears from what is said at [45] that the tenant did not advance any argument seeking this. Nonetheless, at [45] and [70], the court concluded that the balance struck by Parliament in the legislation was compatible with the parties’ respective rights under the ECHR.

The third reason was that, even if wrong as to both of the above, the circumstances of the particular tenant were not unfortunate or exceptional enough to make it likely that any proportionality exercise would have resulted in her being given more than the six weeks’ time provided for under the existing legislative provisions for exceptional hardship.

In this respect it is notable that: (a) Miss McDonald suffered from a severe medically diagnosed personality disorder such that she had been unable to work for the last 17 years, and had previously been evicted from two public sector tenancies; (b) there was medical evidence as to the difficulties that she would have in finding alternative housing, the likelihood that she would become homeless, and the impact that this would have on her condition; (c) Miss McDonald’s parents had bought the house for her in light of her condition and the claim was being brought by receivers appointed by their lender; and (d) the court accepted that the rent was always up to date, and that the arrears on the mortgage that the receivers sought to enforce were insubstantial.

If, pace Lord Denning MR in Re Vandervell (No. 2) [1974] Ch. 269, at 322B-C, hard cases used to make bad law, then it would appear that they do not any more.


Written by Jamie Holmes.