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Social Housing Speed Read – private possession proceedings

McDonald v McDonald & Ors – private possession proceedings at the limits of Article 8 defences

The recent Supreme Court decision McDonald v McDonald & Ors [2016] UKSC 28, concerned three interconnecting legal issues:

  1. When entertaining a claim for possession by a private sector landlord against a residential occupier, is a court required to consider the proportionality of evicting the occupier, in the light of Section 6 Human Rights Act 1998 and Article 8 European Convention on Human Rights (“the ECHR”)?
  2. If so, can Section 21 (4) Housing Act 1988 be read so as to comply with this conclusion?
  3. If the answer to the first and second questions is yes, would the trial judge have been entitled to dismiss the claim for possession in this case, as he said he would have done?

The facts

Ms McDonald suffered from emotionally unstable personality disorder. Her behaviour had caused her to lose two public sector tenancies since 1999. Her parents purchased a property for their daughter to reside in, with assistance of a loan from Capital Homes Ltd (“CHL”). They granted Ms McDonald a series of assured shorthold tenancies (ASTs) of the property.

Ms McDonald’s parents unfortunately encountered financial difficulties and were unable to meet all the interest as it fell due. CHL appointed Law of Property Act Receivers to manage the tenancy in August 2008.

The Receivers took no immediate steps to end the AST or to sell the property. However, the arrears persisted, and therefore the Receivers served a notice under s21 Housing Act 1988 on Ms McDonald on 13 January 2012.

It was argued that if Ms McDonald were to be evicted from her current accommodation, she would have real difficulty in finding alternative rented accommodation in view of her benefits and her mental health history, and therefore homelessness was a significant possibility.

Even if alternative accommodation was found for her, it was argued the stress and upheaval of the move would have a significantly detrimental effect on her mental health.

At first instance, the trial judge held that a possession order would be made as Ms McDonald was not entitled to raise an Art 8 ECHR defence. He did consider that he would have dismissed the claim for possession had Ms McDonald been able to raise such a defence.

The Court of Appeal also dismissed Ms McDonald’s argument, and a further appeal was brought to the Supreme Court.

The judgment

The Supreme Court upheld the decision and concluded that the Court was not required to consider the proportionality of the order as the democratically elected legislature – Parliament – has decided how to properly balance the competing interests of private sector landlords and residential tenants in the provisions of the Housing Act 1988.

The Court clarified that the purpose of the ECHR is to protect citizens from having their rights infringed by the state, and to allow Ms McDonald’s appeal would involve the ECHR effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations.

The Supreme Court concluded it would not be possible to read s21 (4) of the Housing Act 1988 in the way suggested by Ms McDonald. Even if they had been so persuaded, the only remedy would have been a declaration of incompatibility under s4 of the Human Rights Act 1998.

The Law Lords held that even if a proportionality assessment had been appropriate, the most the appellant could have hoped for would be an order for possession in six weeks’ time, rather than a dismissal of the claim altogether.


The decision confirms the widely held view that where a private Landlord seeks possession, the court does not have to consider the proportionality of the decision to evict.

As the Housing Sector is well aware, the Pinnock case requires that where a Registered Provider seeks possession on a mandatory ground, there has to be an assessment of the proportionality of the decision to evict, as whether it is a proportionate means of achieving a legitimate aims.

The Supreme Court judgment in McDonald made reference to earlier decisions on Article 8 defences and reiterated that circumstances in which it would be justifiable to wholly refuse a possession order would be minimal.

So-called “Pinnock defences” hardly, if ever, succeed against public authority landlords unless they are referred to in combination with another public law factor. The Supreme Court noted it was not easy to imagine when a tenant’s Art 8 ECHR rights would be so strong as to preclude the making, as opposed to the short postponement, of a possession order.

If you have any questions on these issues and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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