The Supreme Court has clarified that Article 8 of the European Convention on Human Rights (ECHR), an individual’s right to respect for private family life and their home, has no bearing on the court’s decision to grant a possession order against a private sector tenant.

Fiona McDonald occupied her home under an Assured Shorthold Tenancy (AST) granted by her parents, who owned the property subject to a mortgage. The mortgage lender appointed a receiver when the parents fell into arrears. Ms McDonald also failed to pay the rent under the terms of the AST, causing the receiver to issue possession proceedings against her.

At first instance, the court made a mandatory possession order under section 21 of the Housing Act 1988 (the 1988 Act) which was upheld by the Court of Appeal.

By the time the case reached the Supreme Court, there were two main issues for consideration:

  1. Was the court, as a public authority, required by the Human Rights Act 1998 to act in a way compatible with the ECHR, such that it had to consider the proportionality of the possession order and the interference with Ms McDonald’s rights under Article 8? Ms McDonald argued that it was and the fact that she suffered with a personality disorder was a relevant consideration that should have been taken into account.
  2. If so, could section 21 of the 1988 Act be construed in a way which was compatible with the ECHR?

On the first point, the Supreme Court ruled against Ms McDonald. Treating the courts as a public authority for this purpose would effectively mean that the ECHR was directly enforceable between private citizens in contract disputes. The 1988 Act already reflects the legislature’s efforts to balance the competing interests of private landlords in the residential sector and their tenants. The Supreme Court went on to say that if it had agreed with Ms McDonald, it would have had to make a declaration of incompatibility on the second issue.

Private sector landlords, and especially those who let their property under ASTs, will welcome the ruling.

McDonald v McDonald [2016] UKSC 28