Can a Tenant facing possession proceedings, defend those proceedings on the basis of the Human Rights Act and the European Convention on Human Rights?
This was considered in the case of McDonald (by her Litigation Friend Duncan Jay McDonald) (Appellant) –v- McDonald and Others (Respondents) UK SC 2014 – 0234.
The Appellant who has had psychiatric and behavioural problems and has not been able to work for 17 years, had lost two Public Sector Tenancies owing to her behaviour.
The Appellant’s parents purchased a property for her to occupy with a loan secured against the property. Under the terms of that loan, the parents were to pay interest on the loan in monthly payments with the loan to be repayable in full on 12 May 2013. The parents initially made the monthly payments but because of financial difficulties they were subsequently unable to maintain them. The lenders appointed a Receiver under Section 109 of the Law of Property Act 1925 who were entitled to take action in relation to the property in the name of the parents as they were the holder of the loan.
The parents had granted their daughter (the Appellant) a series of Assured Shorthold Tenancies of the property, the last of which was granted in July 2008 for a term of one year from July 2008. The Appellant continued to reside at the property as the Tenancy had now become periodic.
Later the Receivers issued Possession proceedings in the name of the Respondents seeking possession of the property.
Proceedings were heard in the Oxford County Court on 4 December 2012 and 7 March 2013. Medical evidence at the Trial indicated that should the Order be granted, the Appellant would have great difficulties securing alternative accommodation and given her health problems there is a significant possibility she would be homeless. Trying to find and moving to alternative accommodation would be very likely to (…significantly detrimental affect on her mental health with the possibility of harm to herself or suicide, or the possibility of violence towards others…….).
The Judge made the Possession Order and concluded that the Appellants reliance on Article 8 of the European Convention on Human Rights (proportionality of an Order against a residential occupier) was not applicable because the party seeking a Possession Order was not a public authority. The Appellant applied to the Court of Appeal but was unsuccessful and was then appealed to the Supreme Court which had to consider the following issues: –
- 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 light of Section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights.
- If so, whether, the relevant legislation, in particular Section 21 (4) of the Housing Act 1988, can be read so as to comply with the conclusion.
- 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 the Judge at first instance said he would have done.
The Supreme Court unanimously dismissed the Appeal concluding that: –
- The Appeal would be dismissed on the first issue. There was no authority for the proposition that a Judge could be required to consider the proportionality of the Order which he would have made under legislation such as the Housing Act 1980 and Housing Act 1989.
- It was not possible to read Section 21 (4) of the Housing Act 1988 in the way contended on behalf of the Appellant. Had the Court found in favour of the Appellant on the first issue, then the only remedy would have been a declaration of incompatibility under Section 4 of the Human Rights Act 1988.
- In the rare cases where the Court is required to assess the proportionality of making a Possession Order the Court’s powers to suspend or postpone the effect of the Order are severely limited by Section 89 (1) of the Housing Act 1980. Cases in which a Judge would be justified in refusing (as opposed to postponing) a Possession Order would be very few and far between. On the evidence in this case it seems likely that the most the Appellant could hope for would be an Order for Possession in 6 weeks time.
In summary, in the Private Sector a Tenant cannot rely on proportionality of the Order using the Human Rights Act and the European Convention on Human Rights to avoid a Possession Order under Section 21 (4) of the Housing Act 1988.