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Private landlords and article 8 - Are we there yet?

At the time of the decisions in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow v Powell [2011] 2 AC 186 it was thought that a seismic shock wave would be sent through the Courts requiring them in every claim for possession of residential premises by a public sector landlord to undertake a time consuming balancing exercise to assess the “proportionality” of making an order for possession. The Courts, it was thought, would be overwhelmed. This has in fact not proved to be the case. The County Court has become adept at weeding out the weak cases early on and even where the article 8 point is run to trial the Court has, by and large, been robust in its approach. The one issue which has remained unresolved for a surprisingly long time is the question of the extent to which the principles set out in Powell and Pinnock would apply in a possession claim where the land owner is a private individual and not part of the public sector.

In McDonald v McDonald [2014] EWCACiv 1049 the Court of appeal has finally had the opportunity to consider the principles in a case involving the landlord’s use of s21 Housing Act 1988 to regain possession of a house. The facts are slightly unusual.

The Appellant (Miss McDonald) was the assured shorthold tenant of a small house in Witney in Oxfordshire. She had serious mental health problems and so appeared by a litigation friend, her brother. The landlords were in fact her own parents. They had taken out a mortgage in order to buy the property for their daughter. She was in receipt of housing benefit, and this was used by her parents to pay the mortgage instalments. Unfortunately the terms of the mortgage prohibited letting to state-supported tenants, and also required notification to the lender if the tenant was a family member. The McDonald parents had not done this. Moreover they fell into arrears with the mortgage. The mortgagees sought possession (through receivers) under the terms of the mortgage.

At trial the Appellant argued first that the receivers were not able to bring possession proceedings in the way they had and, second, possession would be an interference with her rights under article 8. She lost on both matters and appealed.  Giving the leading Judgment Arden LJ concluded as follows:

i) There is no “clear and constant” jurisprudence of the Strasbourg court that the
proportionality test implied into Article 8(2) applies where there is a private
landlord.
ii) Even if the proportionality test had applied in this case, the court would still
have made a possession order.
iii) In any event, the CA is bound by Poplar Housing and Regeneration
Community Association Ltd v Donoghue [2002]
QB 48 to hold that section 21
of the HA 1988 is compatible with the Convention. That precludes the CA
from holding that the proportionality test applies.
iv) In the circumstances, the question of interpreting section 21 of the 1988 Act to conform to Convention rights does not arise.

The appeal was therefore dismissed and the possession order allowed to stand. Private landlords will breathe a sigh of relief at the result, but the decision perhaps raises more questions than it answers.

Point (iii) is of particular interest. Arden LJ referred to paragraph 69 of Donoghue where Lord Woolf held that Parliament had struck the balance between the needs of social tenants (or prospective social tenants) as a whole on the one hand and the individual tenant in a particular case on the other when it enacted s21 of the Housing Act 1988. The scheme of the Act was not therefore per se incompatible with the Human Rights Act 1998 and the Convention. In those circumstances, it was held, there could be no challenge under Article 8 because Parliament having already struck the balance, the eviction was by definition “proportionate”.

This reasoning also formed the basis of the decision of the House of Lords in Kay v Lambeth  [2006] 2 AC 265.  In the well known passage at para 110, Lord Hope held that a tenant of residential accommodation belonging to a social landlord could not challenge his eviction under Article 8 on the basis of is own personal circumstances.  He held that the only valid challenges could be  on the basis either (a) that the legislation under which the possession was sought was itself unlawful as being in breach of the Convention (and the Human Rights Act 1998) or (b) that the decision to evict was unlawful in a public law sense.  So called “gateway (a)” and “gateway (b)”.

The finding in relation to the use of Article 8 in individual cases was precisely what was then reversed at para. 49 in Pinnock (supra).  The effect of Pinnock was that gateway (a) and gateway (b) remained, but that a tenant could also rely on Article 8 directly.

But at para 55 of McDonald Arden LJ says:

“[Counsel for the tenant] submits that Poplar applies to the question whether the scheme of the legislation is incompatible with Article 8 and not the question whether, as a matter of interpretation, it would be possible to read in Article 8 to deal with the exceptional case where Article 8 prevents the court from making a PO. This is very difficult to follow. I do not consider that this distinction can be made. Once it is decided that section 21(4) is compatible with Article 8, it is not open to a court bound by that decision to deal with the matter. This court is bound by the ruling in Poplar.”

It is suggested that the only thing that is difficult to follow is this reasoning.  Counsel for the tenant was quite right.  The whole point of the decision in Pinnock  was that a tenant should be able to challenge eviction using Article 8, notwithstanding that the legislation giving rise to the landlord’s right to possession was per se lawful.  The Court always retained the power to carry out a “proportionality” exercise, notwithstanding that there was no domestic law defence.  However, the McDonald decision seems to take matters back to the position after Kay and Donohue - a position which was reversed in Pinnock. It is suggested that it is simply not right to say, as the Court of Appeal seems to be doing, that once it is found that a private landlord’s claim for possession is lawful under domestic law, that is an end to it.

Of course in Pinnock the land owner was a public authority (and therefore a “public authority” for the purposes of the Human Rights Act 1998), so can be distinguished on that basis.  But there is little discussion in McDonald of the role of the Court as a “public authority” itself under s6 Human Rights Act 1998.  Ward LJ’s obiter comments on these issues in Malik v Fassenfelt [2013] EWCA Civ 798 (where he concludes the Court must carry out a balancing exercise between two private individuals) are dismissed with no real consideration.  There was no discussion of cases such as Venables v News Group Newspapers Ltd and others [2001] Fam 430 or Campbell v MGN [2004] 2 AC 457 where the Courts have routinely applied and balanced competing Convention rights between two private individuals. Indeed in Campbell Lord Nicholls says in terms:

“The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority” [17].

Admittedly that was in connection with an action for breach of confidence under the common law.  But it is not at all clear why such principles should not also apply in a case between two private individuals with competing property rights.  Unfortunately, the McDonald case does not give us those answers.

Conclusion

The McDonald decision is clearly to be welcomed.  Proceedings under s21 form a large part of the list on possession days in the County Court.  Private landlords now know for certain that they will not have to meet an Article 8 challenge.  However, the shortcomings in the reasoning in McDonald make it unclear how far the principle will go.  Is it only where a private landlord’s right to possession arises out of statute, or will it also apply to trespassers?  And even then will the situation be the same for ab initio trespassers as well as trespassers who are holding over after termination of a tenancy or licence?  When one door closes, another one opens