Does An Order Under Section 21 Housing Act 1998 Have To Be Proportional?

Section 21 of the Housing Act 1988 is a provision often used by landlords to gain possession of residential property on expiry of a tenancy. It is, by design, an ‘accelerated’ procedure which, usually, is a far more streamlined means for a landlord to gain vacant possession than the section 8 alternative. The Supreme Court has this week given Judgment on the issue as to whether the court should also consider the proportionality of evicting the occupier in light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights.


In McDonald (by her litigation friend DM) v McDonald and others [2016] UKSC 28, the appellant was 45 years old, having suffered with psychiatric and behavioural problems since she was 5. She was described by the psychiatric expert in the case as having ‘an emotionally unstable personality disorder and at times when her mental state has deteriorated she has presented with frank psychotic problems.’ In order to assist, her parents decided to buy a property for her to live in, for which they obtained a mortgage, secured against the property in the usual way. The appellant’s parents, who were in fact the respondents to the appeal, granted a series of shorthold tenancies to the appellant, as a result of which the rent was covered by housing benefit. The mortgage was an interest only arrangement for an eight-year term.

Unfortunately, owing to financial difficulties, the respondents were unable to keep up with the interest payments and as a result proceedings were brought on behalf of the mortgagee under section 21 of the Housing Act 1988 to regain possession.

At the possession hearing the appellant relied on article 8 of the European Convention on Human Rights, and the Judge held that, subject to such reliance, the court had no alternative but to make an order for possession. The Judge stated that it was not open to the court to consider the proportionality of making such an order against a residential occupier, as the applicant was not a public authority. The decision was appealed to the Court of Appeal and subsequently to the Supreme Court.

The main issue of the appeal centred around whether when determining a claim for possession by a private sector landlord against a residential tenant, should the court be required to consider the proportionality of evicting the occupier, in light of the aforementioned jurisprudence.

The Supreme Court held that, in the absence of any clear and authoritative guidance from the European Court of Human Rights to the contrary, although it might well be that article 8 of the Convention was engaged when a judge made an order for possession of a tenant’s home at the suit of a private sector landlord, it was not open to the tenant to contend that article 8 could justify a different order from that which was mandated by the contractual relationship between the parties, at least where there were legislative provisions which the democratically elected legislature had decided properly balanced the competing interests of private sector landlords and residential tenants. In effect, the provisions of the 1977 Act, section 89 of the 1980 Act and Chapters I and IV of the 1988 Act reflected the state’s assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract had ended. To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention was to protect citizens from having their rights infringed by the state.


Accordingly, the Supreme Court has confirmed that when determining a claim for possession under section 21 of the Housing Act 1988 by a private landlord as against a residential tenant, the court is not required to consider the proportionality of the order. Thus, regardless of the level of sympathy held by the Judge as to the tenant’s personal circumstances, he or she must uphold the landlord’s right to possession.