McDonald (by her litigation friend) v McDonald (acting by the joint receivers)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Tomlinson,Lord Justice Ryder |
| Judgment Date | 24 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1049 |
| Date | 24 July 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2013/1705 |
[2014] EWCA Civ 1049
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Oxford County Court
His Honour Judge Corrie
20X50223 Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Tomlinson
and
Lord Justice Ryder
Case No: B5/2013/1705
Ms Kerry Bretherton (instructed by Turpin & Miller LLP) for the Appellant
Mr Stephen Jourdan QC & Ciara Fairley (instructed by TLT LPP) for the Respondents
Hearing dates: 4 – 5 March 2014
Miss McDonald resists a claim for possession of her home
The appellant, Miss Fiona McDonald, is forty-three years of age. She has a mental disorder which makes her particularly upset by changes in her environment. She has been evicted from social housing in the past. She cannot work. She is not able to conduct these proceedings: her brother, Mr Duncan McDonald, acts as her litigation friend. She lives in a small property in Witney, Oxfordshire ("the property"). That is her home. Until recently she had an assured shorthold tenancy ("AST") in respect of it. She wants to stay there. An AST is a residential tenancy that allows the landlord to let the property whilst retaining the right to repossess the property at the end of the term. It is a very popular form of tenancy in use today both in the public and private sector.
Through her brother she appeals against a possession order ("PO") made by HHJ Corrie, sitting in the Oxford County Court, on 23 April 2013. Her tenancy did not give the court discretion whether to make a PO. As she had been granted an AST, the statutory provision about making a PO which the judge had to apply, namely section 21 (4) of the Housing Act 1988 ("HA 1988"), imposed a duty on the court to make a PO. Section 21(4) provides:
"…a court shall make an order for possession of the dwelling-house if it is satisfied—
(a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than [an assured shorthold periodic tenancy (whether statutory or not)]; and
(b) the landlord or, in the case of joint landlords, at least one of them has given to the tenant not less than two months' notice in writing stating that he requires possession of the dwelling-house."
Miss McDonald resists the PO on two grounds.
First, she contends that the PO order did not respect the right to respect for one's home guaranteed by Article 8 of the European Convention on Human Rights ("the Convention"). This provides:
"Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Second, Miss McDonald claims that notice to terminate her tenancy was served on her without the appropriate authority from her landlords in the circumstances which I shall now describe.
Miss McDonald's landlords happen to be also her parents, Mr and Mrs Brian McDonald. They raised money from a third party lender, Capital Homes Ltd ("CHL"), to buy the property so she could have a place to live for the foreseeable future. The money was secured by a mortgage over the property dated 13 May 2005. Mr and Mrs McDonald granted their daughter an AST of the property after the date of the mortgage. Miss McDonald paid the rent with housing benefit and Mr and Mrs McDonald used that money to pay the sums payable to CHL.
The conditions of the mortgage prohibited the grant of a tenancy to a tenant who is assisted by social security, as Miss McDonald is. Other tenancies had to be assured shorthold tenancies previously approved by CHL. Mr and Mrs McDonald failed to apply for approval. Moreover a further condition required them to advise CHL if they proposed to enter into a tenancy with a family member. They did not do this either. Moreover, due to a change in circumstances they became unable to pay the instalments needed to meet their obligations to CHL.
On 28 August 2008, CHL appointed receivers of the property, Mr Andrew Hughes and Mr Julian Smith ("the receivers"). Under the conditions, they had the same powers as CHL, and they were the agents of the mortgagors, Mr and Mrs McDonald. At the date of the receivers' appointment, Miss McDonald was in possession under the terms of an AST dated 15 July 2008 expiring on 14 July 2009. She has remained in possession after that date by virtue of a statutory periodic tenancy to which section 21(4)(a) of the HA 1988 applies.
The receivers claimed to use their powers under the mortgage to serve a notice in their own names on Miss McDonald under section 21(4)(b) of the HA 1988 on 13 January 2012 and to commence possession proceedings in the name of Miss McDonald's landlords on 16 April 2013. The only issue about the notice is the fact that the receivers gave it and not the landlords. If the receivers had power to give it, they could do so in their own names because by section 45 of the HA 1988 the word "landlord" includes any person deriving title from the original landlord, which would include CHL, and under the conditions the receivers are able to exercise all the powers that CHL can exercise. If they did not have power to give the section 21 notice, then the notice to quit would be of no effect. Miss McDonald's periodic tenancy would have continued as before.
Before the judge Miss McDonald lost on both grounds on which she resisted the PO. She now appeals on the same two grounds.
Right to a home where court bound to grant a PO (First ground of appeal)
The more substantial ground of appeal is the question whether Miss McDonald can rely on Article 8 as against her landlords. We are principally concerned with Article 8(2). This permits interference with the right guaranteed by Article 8(1) where that is necessary in a democratic society for the protection of the rights and freedoms of others. It is well-established that means that the interference must be proportionate to the importance of the Article 8(1) right.
What is not in dispute
There is no doubt that Article 8(1) is engaged. It is not in dispute that a person may have a home for the purposes of Article 8 without having any proprietary right, and indeed she may have a right to respect for her home even if her occupation is not lawful. The existence of a home in Strasbourg jurisprudence is identified with "efficient and continuing links" in terms of the social and psychological attachment or bond that develops with one's accommodation, and neighbourhood, rather than simply with the concept of a roof over one's head (see generally my judgment in Harrow LBC v Qazi [2002] HLR 14, reversed on other grounds: [2004] 1 AC 893). There is nothing in Article 8 to exclude a home that is or was let to the applicant by a private landlord. The landlords in this case are private citizens.
Nor is there any doubt that the court is a public authority. That means that it may not act in a way which is incompatible with Convention rights. This is shown by section 6 of the Human Rights Act 1998, which provides:
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right….
(3) In this section "public authority" includes—
(a) a court …"
The fact that the court is a public authority is, however, of no consequence unless there is a Convention right which the court's order would violate.
Nor is it in dispute that, where the landlord is a public authority, the tenant may rely on Article 8 or that in that case Article 8 imposes a procedural obligation to provide the tenant with an opportunity to have the proportionality of the possession order determined by a court. The Supreme Court has held that this defence to a possession order will only succeed in a very small number of cases because it will require a very strong case to override the interest of the public authority, which is enforcing its rights of property and discharging its statutory duty with respect to the allocation of its housing stock to homeless persons and in the enforcement of its property rights: see Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow v Powell [2011] 2 AC 186.
What is in dispute
What is in dispute is whether the proportionality test applies where a person can contend that it would be disproportionate under Article 8(2) to make a PO against him as the tenant of a private landlord. This point does not matter in a case where the court must be satisfied as to the reasonableness of making a PO. But it does matter where the landlord relies on a mandatory ground for making a possession order, as in section 21 of the HA 1988.
The judge's reasoning supporting his rejection of Miss McDonald's claim that the PO violated her Article 8 right involved a detailed study of domestic case law concerning possession claims against tenants in the public sector, there being no similar case law dealing with the tenants of private landlords. However, in the end he rejected the arguments on Miss McDonald's...
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