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Court dismisses ECHR defence to possession order

By Chloe Smith » The Supreme Court has ruled that private tenants cannot rely on the right to a private and family life under the European Convention on Human Rights to challenge a mandatory possession order.

In McDonald v McDonald a 46-yearold woman who suffers from mental health issues sought to challenge a possession order after financial difficulties meant her parents could not afford loan payments.

Fiona McDonald claimed that in light of section 6 of the Human Rights Act, which makes it unlawful for public bodies to act in a way incompatible with the ECHR, the court was required to consider the proportionality of evicting her.

Previously, a High Court judge ruled that the court was not required to consider proportionality – but that if it could, he would have said the possession order was disproportionate. The Court of Appeal dismissed her appeal and the Supreme Court unanimously upheld the rulings.

In a joint ruling, Lord Neuberger and Lady Hale said that, although article 8 was engaged, McDonald could not use it to challenge an order that had been contractually agreed between the parties, ‘at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants’.

To hold otherwise would mean the ECHR could be used to alter contractual rights and agreements between private citizens, they said.

Michael Paget, a barrister at Cornerstone Barristers, said the ruling meant that ‘no matter how sympathetic a judge is to a tenant’s personal plight’ they must uphold the landlord’s right to possession.

He said: ‘The judgment in McDonald stops the expansion of human rights arguments in housing law. It reinforces the supremacy of domestic law. Parliament has struck a balance between the rights of landlords and tenants and the courts will apply the intention of parliament without modification.’

David Smith, a partner at London firm Anthony Gold, said the decision will make it difficult for any mandatory grounds for possession to be challenged in a similar way. Any claim will have to bring forward new arguments to justify taking the ECHR into consideration. He added that any other ruling would have destroyed section 21 of the Housing Act 1988.

[Courtesy: The Law Society Gazette]