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The case - McDonald v McDonald  UKSC28.
The Supreme Court was asked to reinterpret Section 21(4) of the Housing Act 1988, which provides that a Court shall make a Possession Order where proper Notice has been served, to be subject to a proportionality assessment.
This would put private sector tenancies in line with public authority ones, which have Article 8 proportionality, following the case of Manchester City Council v Pinnock.
The Tenant’s case had 3 main points:
1. That when a Court is asked to grant possession by a private Landlord, it should consider whether an Order for Possession would constitute a disproportionate interference with the Tenant’s rights under Section 6 of the Human Rights Act 1998 and Article 8 of the convention
2. If a Court did have to consider whether a Possession Order was proportionate, can Section 21 (4) of the Housing Act 1988 be construed to comply with that requirement
3. If the answer to both of the above questions was yes, would the Trial Judge then be entitled to dismiss the claim for possession.
The Supreme Court emphasised when considering the issue of proportionality that it was also open to a private sector Landlord to argue that any delay in giving possession of his property was an infringement of his rights under Article 1 of the convention (the right to peaceful enjoyment of possessions). A Judge considering an Order for Possession against a residential occupier request by a private sector Landlord would therefore have to balance the Landlord’s Article 1 rights against the occupier’s Article 8 rights.
Deciding that granting a Possession Order following service of a Section 21 Notice was not a disproportionate interference with the Tenant’s rights under the convention, meant it was unnecessary for the Court to consider the second and third issues raised in the Appeal.
The Supreme Court felt however, that the second and third issues offered significant importance and went on to consider those issues as well. The Court considered it was possible to read proportionality into the lawfulness of the public authority’s actions in seeking possession. The same flexibility however, was not present in the language of Section 21 (4) of the Housing Act 1998. There was nothing which pointed to a requirement that the Court should consider proportionality of an Order for Possession.
In respect of the Judge’s entitlement to dismiss a claim, the Court referred to the limitations placed on the Judge to suspend or postpone a Possession Order by Section 89 (1) of the Housing Act 1980. The refusal of an Order, where that is possible, is extremely rare. On the facts of this case, the Supreme Court felt that the most the Tenant could hope for, if proportionality of settlement should have been made, would be for a possession in 6 weeks, the maximum permitted by Section 89 (1) of the Housing Act 1980.
Given the implications there would be for the statutory process, it is not considered this decision is particularly surprising. The case settles the matter at this time, however, it should not be forgotten there were 3 occasions when similar arguments were placed before the House of Lords concerning public sector Tenants which were rejected. It was only after the case of Pinnock was taken to Strasbourg that the Law was changed.
As such, if a similar case is taken to Strasbourg, there maybe a different decision.
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