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McDonald v McDonald – Supreme Court says ‘No’ to a Human Rights Defence for vulnerable tenants in the Private Sector

Posted on 24th June 2016

With skyrocketing house prices and ever diminishing numbers of social housing lets there are a growing number of people in the UK that are living in private sector tenancies. These are generally Assured Shorthold tenancies introduced by the Housing Act 1988. When the act came into force in 1989 the strength of person’s rights to reside in their home in exchange for rent to a private individual became diminished. The Act created a “no-fault” notice period, known as a s.21 notice. Where previous tenancies governed by the Rent Act 1977 required a landlord to show some reason for the decision to evict a tenant, a s.21 does not, and all that needs to be proven is that a notice is validly served on the tenant.

The case of McDonald (by her litigation friend Duncan J McDonald) v McDonald and others [2016] UKSC 28 concerns this type of eviction procedure. In 2013 possession proceedings were brought against Jane McDonald, a woman with mental health problems, by the receiver to her parent’s estate. Mr and Mrs McDonald had bought the house for her to live in and let it to her on a series of Assured Shorthold tenancies.

When her parents fell into arrears with the mortgage company they appointed a receiver in bankruptcy to manage the assets, including the property. The receiver served notice and applied to evict Ms McDonald. A possession order was granted at the County Court but subsequently appealed by the tenant. The Court of Appeal agreed with the County Court. The Supreme Court heard the appeal in March 2016 and reserved judgment to a later date. On 15th June 2016 the Supreme Court gave judgement that the appeal would be dismissed.

The main question before the court related to the courts power to consider the Human Rights of a tenant when making a possession order against them. The precedent for doing so has been the subject of many possession hearings and judgements since the case of Kay and Manchester City Council v Pinnock which determined that a persons right under Article 8 (the right to freedom from interference in private and family life) of the ECHR were engaged when possession was sought of a person’s home.

The difference in the case before the court in McDonald v McDonald was that, unlike the previous case law, the landlord in this case was not a public body but a commercial entity, acting on their contractual rights to possession of the property. There is a strong history in UK law of the courts reluctance to interfere with the contractual relationships between private individuals and the contract for a home, it appears, presents no exceptions.

The decision bases its reasoning on two main limbs; Firstly, that the provisions of the Human Rights Act 1998 and the ECHR both purport to apply specifically to the actions of an arm of the state, and that the Respondent in this case (or their receiver) were private individuals. The Appellants raised that it was the Court (which is a public body), and not the Respondent, who made the order for possession and it was therefore the Court that had the duty to ensure that the decisions it makes are proportionate and in line with the ECHR. This argument failed as the Supreme Court found that it would mean that private individuals involved in litigation would be entitled to enforce human rights arguments against each other, instead of against the state as intended.

Secondly, that the laws enacted by parliament that conferred protection to the tenant (the requirement to serve notice of two months and the requirement to obtain a possession order) were intended to strike a balance between the tenants rights to a home life and the landlords rights to property, protected under Article 1 of the first Protocol to the ECHR. In the courts judgement, the law as written adequately balanced these competing interests. It was also voiced that those tenants who did not require a court order to be evicted would not benefit from the arguments raised, and that the decision to include a human rights defence to proceedings may even serve as an incentive to landlords to illegally evict their tenants.

Despite the appeal being dismissed at the first point raised, the court did go on to consider whether s.21(4) of the Housing Act 1988 (as amended) could be read as imparting a power to the court to consider the proportionality of granting possession (it could not) or whether a different outcome may have possible if it could (it would not). In the latter consideration, it was found that Parliament had accounted for the possibility of exceptional hardship to the tenant through the discretion of courts to extend a possession order for up to six weeks in exceptional circumstances.


Overall, the decision presents a resounding “no” in relation to the question of whether an eviction from a private sector tenancy can be subject to the analysis of whether it is proportionate to the right for respect of the tenants’ home and family life, at least in relation to the individual circumstances of the tenant. This approach is almost directly contrary to the examples of successful human rights defences in the social housing sector, which have largely focussed on the individual circumstances of the tenant and the actions of the parties.

In this case, the court was not called to consider the legality of the regime of all mandatory grounds for possession of a property in light of ECHR case law. The decision made is analogous to the “Gateway B” defence in Kay v Lambeth LBC where a Defendant may raise the defence relevant to their particular circumstances. The door to “Gateway A”, a challenge to the compatibility of Parliament’s enacted law, have (for now) been left ajar.

Finally, in line with the lower courts, the Supreme Court has upheld the view that not just anyone can be judged for breaching Human Rights. Even in the courts, a private individual or company is free from the scrutiny and obligations placed on the state.

The Judgement and press release can be found here.