McDonald v McDonald and Others: SC 15 Jun 2016

Her parents had bought a house and granted tenancies to their adult daughter (the appellant), who suffered a personality disorder. They became unable to repay the mortgage. Receivers were appointed but the appellant fell into arrears with the rent. The receivers began possession proceedings, and a possession order was made and confirmed. She appealed saying that the judge should have asked as to the proportionality of granting possession under article 8 and, had he done so may have refused to grant possession against her despite the apparently mandatory terms of section 21(4) of the 1988 Act and section 89(1) of the 1980 Act limiting any postponment of possession. The appellant said that the 1980 Act should be read to give a court the discretion to postpone a possession order.
Held: ‘This appeal raises three questions. The first is whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights. The second question is whether, if the answer to the first question is yes, the relevant legislation, in particular section 21(4) of the Housing Act 1988, can be read so as to comply with that conclusion. The third question is whether, if the answer to the first and second questions is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done.’
‘while we accept that the Strasbourg court jurisprudence relied on by the appellant does provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession against her, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts.’


Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Reed, Lord Carnwath


[2016] UKSC 28, [2016] HLR 28, [2016] HRLR 18, [2016] 3 WLR 45, [2016] 2 P andCR DG22, [2016] WLR(D) 312, [2017] AC 273, UKSC 2014/0234


Bailii, Bailii Summary, WLRD, SC, SC Summary


Housing Action 1980 89(1), Human Rights Act 1988 21(4), European Convention on Human Rights 8


England and Wales


Appeal fromMcDonald v McDonald and Another CA 24-Jul-2014
The appellant had a personality dosorder. Her parents bought a house and granted her series of assured shorthold tenancies. After they fell into rrears on the morgtgage, the bank appointed receivers. The rent then also hell into arears, and they . .
CitedDi Palma v United Kingdom ECHR 1-Dec-1986
(Commission/admissibility) The applicant’s lease was forfeited on her non-payment of a service charge and possession was ordered. Her primary claim was made (unsuccessfully) under article 1 of the First Protocol to the Convention. But she also . .
CitedWood v United Kingdom ECHR 2-Jul-1997
(Commission decision as to admissibility) The applicant’s house had been repossessed by a mortgagee when she defaulted on her payments due under the mortgage. Her complaint was found to be manifestly ill-founded, saying ‘In so far as the . .
CitedRopaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
CitedLondon Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
CitedManchester City Council v Pinnock SC 9-Feb-2011
The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .
CitedLondon Borough of Hounslow v Powell, Leeds City Council v Hall etc SC 23-Feb-2011
In each case the tenant occupied the property as his home, but was not a secure tenant of the local authority. The Court was asked whether, in granting a possession order in such a case, the court was obliged to consider the proportionality of the . .
CitedConnors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
CitedMcCann v The United Kingdom ECHR 13-May-2008
The applicant and his wife were secure joint tenants of a house of a local authority under section 82. Their marriage broke down, and the applicant’s wife moved out of the house with the two children of the marriage. She returned after obtaining a . .
CitedCosic v Croatia ECHR 15-Jan-2009
The applicant teacher was provided a flat by her school, which it in had leased from the Yugoslavian Army. That lease expired in 1990. She remained, paying rent to the school. Ultimately the Croatian State, which had assumed ownership of Yugoslavian . .
CitedZehentner v Austria ECHR 16-Jul-2009
ECHR The applicant’s apartment was subject to a judicial sale for non-payment of debt. She was ill, and did not participate in the sale. The local law had time limits for challenging a judicial sale, designed to . .
CitedZrilic v Croatia ECHR 3-Oct-2013
. .
CitedOrlic v Croatia ECHR 21-Jun-2011
. .
CitedBuckland v The United Kingdom ECHR 18-Sep-2012
The applicant alleged that the Court of Appeal’s decision to dismiss her appeal and uphold the judgment making a possession order constituted an unjustified breach of her right to respect for her home and her family life and discriminated against . .
CitedBrezec v Croatia ECHR 18-Jul-2013
. .
CitedPla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
CitedBelchikova v Russia ECHR 25-Mar-2010
. .
CitedKhurshid Mustafa And Tarzibachi v Sweden ECHR 8-Jun-2011
The Strasbourg court considered a claim by applicants who had been evicted by a court order at the suit of their landlords, who had determined their tenancy for installing a satellite dish in breach of covenant.
Held: This infringed the . .
CitedLemo And Others v Croatia ECHR 10-Jul-2014
. .
Lists of cited by and citing cases may be incomplete.

Housing, Human Rights

Updated: 14 July 2022; Ref: scu.565402