It is well established since Manchester City Council v Pinnock  3 WLR 1441 and Houslow LBC v Powell  2 WLR 287 that a tenant of a local authority or social landlord is entitled to ask the court to consider the proportionality of any proceedings for possession of their home when the landlord relies upon a mandatory ground.
However in Pinnock their lordships expressly excluded consideration of whether a proportionality defence would be available to tenants of private individuals when delivering their judgment and since Pinnock the issue of whether the defence is available in such circumstances has yet to be decided.
Section 6 of the Human Rights Act 1998 expressly provides that for the purposes of the Act the court is a public body and is subject to an obligation to recognise and secure the rights in Schedule 1 to the act. This obligation arguably would afford a tenant of a private landlord a proportionality defence known as “the Horizontal effect”
Zehentner v Austria (app no 20082/02)  EHRR 22 offers guidance at paragraph 59 stating that “the loss of ones home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under art 8 of the Convention” However this only amounts to guidance and not binding on the domestic courts.
We do however seem to have finally taken a positive step forward in this area following the decision in Malik v Fassenfelt  EWCA Civ 798. Sir Alan Ward in his judgement concluded that there was no reason in principle why a distinction should be drawn between public and private landlords in this context. Unfortunately this issue did not form part of the appeal and Sir Alan Wards comments can only be considered persuasive authority and not binding. Although it may well assist in persuading a county court that Article 8 arguments can be raised in such cases.
Are there likely to be any further developments which will finally provide binding authority? It is clearly becoming a more important issue with more and more people becoming tenants in the private sector, and particularly now that local authorities can discharge their homelessness duties by securing accommodation in the private sector.
Watch this space!
By Amy Tagoe, housing law team