Supreme Court delivers judgment on proportionality arguments in private landowner possession claims

Since landmark judgments in the Pinnock and Powell cases back in 2011, housing practitioners and legal professionals have questioned how human rights arguments can be applied to possession proceedings in the privately rented sector.  Carmel Ferguson, Solicitor with Housing Rights, considers a recent Supreme Court judgment that delivers clarity on this issue.

Proportionality and possession: a very brief note

The decisions in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186 established that courts must consider whether legal action to recover a dwelling is a proportionate response in cases where possession would otherwise be mandatory, such as possession action against an introductory tenant or an illegal occupant, as long as the party seeking possession is a local authority.  

Although these judgments allow tenants to raise “proportionality” as a defence to possession proceedings, the Supreme Court also made it clear that only in “very highly exceptional cases” will it be appropriate for the court to consider a proportionality argument.  The court held that “where … the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate”.

In Pinnock, the court made it clear that nothing contained in that judgment was “intended to bear on cases where the person seeking the order for possession is a private landowner”, and added that it was “preferable for this court to express no view on the issue until it arises and has to be determined.”

Supreme court considers how proportionality defences affect possession claims by private individuals

In the case of McDonald (by her litigation friend Duncan J McDonald) (Appellant) v McDonald and others (Respondents) [2016] UKSC 28 this issue of how the judgment would bear on a case where a private landowner seeks possession duly came before the Supreme Court for determination.

Ms McDonald is aged 45 and suffers from psychiatric and behavioural problems. In May 2005 her parents purchased a home for her, with the assistance of a loan from Capital Home Loans. Ms McDonald was granted a succession of tenancy agreements by her parents, the last of which was granted in July 2008 for one year.

The parents did not keep up payments on the loan, due to financial difficulties. Rent continued to be paid but arrears, described as “not substantial” persisted. The loan’s eight year term expired in May 2013 and the sum of £164,000 then became due. Receivers were appointed to the property and issued proceedings seeking possession with a view to selling the property in order to release the sum due.

Medical evidence was submitted on behalf of the tenant that she would have real difficulty in finding alternative rented accommodation in view of her mental health history and her behaviour and that there was a significant risk of homelessness as a consequence. The report also stated that in the doctor’s view, homelessness would have a major detrimental effect on her heath and very probably require admission to hospital.

Route to the Supreme Court

The County Court Judge who heard the application for a Possession Order held that it was not open to him to consider the tenant’s Article 8 rights, that is, to consider whether it was proportionate to grant a possession order, as the person seeking a possession Order was not a public authority. He went on to conclude that, had he been entitled to consider proportionality, he would have dismissed the possession application.

The case was appealed to the Court of Appeal, which upheld the County Court decision, holding that Article 8 could not be invoked by a residential occupier in possession proceedings brought by a private sector landowner, as a ground for opposing the making of, or the terms of, the order for possession.

The case was then appealed to the Supreme Court, which set out the three issues to be considered.

Can the appellant rely on Proportionality?

The Court took the view that “although it may well be that article 8 is engaged when a judge makes an order for possession of a tenant’s home at the suit of a private sector landlord, it is not open to the tenant to contend that Article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants”

The Court accepted that a court is a public authority for the purposes of the Human Rights Act but held that ,as explained by Lord Millett in Harrow London Borough Council v Qazi [2004], paras 108-109, the court is “merely the forum for the determination of the civil right in dispute between the parties” and “once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate.”

This did not mean that a tenant could not contend that the provisions of the relevant statute were not compatible with Convention rights, but that argument was not presented and was unlikely to succeed if it had been.

Having reached that preliminary view, the Court then considered the relevant decisions from the ECtHR including Di Palma v United Kingdom (1986) 10 EHRR 149 and Wood v United Kingdom (1997) 24 EHRR CD 69. But “as there is a fundamental difference between public sector landlords (who owe their residential tenants an article 8 duty) and private sector landlords (such as those in the two admissibility decisions described in para 48 above, who do not). Accordingly, we do not consider that the decisions concerning cases where a public sector landlord seeks possession are of much relevance.”

The Court therefore concluded that “In these circumstances, while we accept that the Strasbourg court jurisprudence relied on by the appellant does provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts.

The court dismissed the appeal on the first issue. Although the remaining two questions were then academic, the Court went on to decide them due to the importance of the matters.

If the answer to question 1 is “Yes” Could the relevant legislation be read so as to comply with Convention rights?

The Court concluded that it would not be possible to read section 21 (4) of the 1988 Act in such a way as to include the Article 8 requirements of proportionality. Had the court been persuaded that the appellant was right on the first issue, the only remedy would have been a declaration of incompatibility under section 4 of the Human Rights Act.

If the answers to questions 1 and 2 were yes, would the judge have been entitled to dismiss the claim for possession as he had said he would have dome?

The court held that there were four options available to the court:

It may

(a) make an immediate order for possession;

(b) make an order for possession on a date within 14 days;

(c) in cases of exceptional hardship make an order for possession on a date within six weeks; or

(d) decline to make an order for possession at all.

The cases where it would be justifiable to refuse an order could only be cases in which the landlord’s interest in regaining possession was heavily outweighed by the gravity of the interference in the occupier’s right to respect for her home.

The Court concluded that this was not such a case. “It would be for the appellant to show that a possession order would be disproportionate, and that to refuse a possession order would not prevent the lenders from recovering the sums to which they were entitled. It is difficult to see how the appellant’s circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lenders’ right to be repaid.”

The legislation concerned and its Northern Ireland equivalent

Article 8 of the European Convention on Human Rights  states:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”

Section 6(1) of the Human Rights Act 1998 provides that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”,

Section 3(1) of the 1998 Act provides that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

This case centres around UK housing legislation, particularly the Housing Acts 1980 and 1988, which do not apply in Northern Ireland.

Since April 2007 with the enactment of the Private Tenancies (NI) order 2006,there are two types of  private tenancies  in Northern Ireland

• A tenancy which was created on or after 1st April 2007,which will be either rent controlled or non-rent controlled or
• A tenancy which was created under the rent order which will be restricted, regulated or protected shorthold

The right of a tenant to due process is contained in Article 56 of the Rent (NI)  Order 1978.  Basic information on the legal rights of landlords and tenants in Northern Ireland is available on the housingadviceNI website, published by Housing Rights.  More comprehensive information for housing and legal practitioners can be found in Housing Law in Practice NI.

Relevance of this judgment to Northern Ireland and learning points for advisers

As a Supreme Court decision, this is binding on Northern Ireland courts and decision makers, except where it can be argued that the legislative provisions differ to a considerable extent.

This judgment decides fairly conclusively that an Article 8 defence cannot be used in defending possession proceedings brought by a private landlord. Advisers should however remain open to the possibility of a challenge if a particular piece of legislation appears to be incompatible with the ECHR.

There also remains a possible area of uncertainty in circumstances where a public authority makes use of private rented accommodation to fulfil its statutory duty, for example where the Housing Executive makes use of “single let” accommodation as temporary accommodation for homeless households to whom a statutory duty is owed.