A decision of the UK Supreme Court published Wednesday, 15 June 2016, held that their Human Rights Act and Article 8 European Convention on Human Rights (the “Convention”) does not apply in claims for possession of properties, between private parties.

The appellant suffered with psychiatric and behavioural problems since the age of five. Due to her behaviour the appellant lost two public sector tenancies, after which her parents bought a property for her to occupy. The property was subject to an assured tenancy (which has the benefit of certain statutory protections in the UK), on the basis that the rent would be covered by housing benefit. Due to financial difficulties however, the appellant’s parents failed to meet the full mortgage repayments. The ruling examined three substantial questions;

  1. Can a court, when entertaining a claim for possession by a private sector owner against a residential occupier, consider the proportionality of evicting the occupier, in the light of section 6 Human Rights Act 1998 and article 8 of the Convention?

The Court reasoned that the answer to this question was based on the facts at hand. If proportionality were to arise it would have to be determined if the relevant parties circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. It was found that this was not the case here.

  1. Whether the relevant legislation, in this instance section 21(4) of the UK Housing Act 1988, can be read so as to comply with the rights set out in the Convention?

The Court was of the view that so far as is possible to do so, primary legislation and subordinate legislation should be read and given effect in a way that is compatible with the Convention. In this instance the relevant legislation provides that the court shall make an Order for possession of a dwelling house let on a ‘periodic assured tenancy’, if satisfied that the landlord has served the correct notice. The appellant argued that because of more flexible housing legislation in that regard, the court should read into s21(4), a requirement to assess the proportionality of making an Order. These arguments were rejected. It was held that the same flexibility was not inherent in the section at issue to enable the court apply proportionality in the way contended for by the appellant.

  1. If the answer to the first and second question was yes, would the trial judge have been entitled to dismiss the claim for possession?

If the appellant had succeeded in showing an arguable case and the relevant housing legislation was read in such a way so as to apply a proportionality assessment, it may have meant that the personal circumstances of the appellant could have been considered sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate.

For the reasons as outlined at paragraphs one and two above the appeal was dismissed by the Supreme Court.

This judgment is of particular interest as it raises the possibility of the Human Rights legislation having an impact on litigation between private parties.

For a link to the full decision in McDonald v McDonald and others 2016 UKSC 28, please click here.