Housing – Secure tenancy – Possession – Defendant’s mother holding secure tenancy of property – Mother entering care home with ill health and dementia – Defendant remaining in property – Claimant local authority serving notice terminating tenancy on cessation of occupation as only or principal residence – Claimant seeking possession following mother’s death – Whether legislation unlawfully discriminating against defendant – Whether defendant having status to bring discrimination claim – Whether defendant having right of succession – Claim allowed
In 1965, a three-bedroom property at 19 Uffmoor Estate, Halesowen, West Midlands, was let to the defendant’s mother by the claimant local authority on a secure tenancy. The defendant had lived there since she was 11 years old and was now aged 68. In October 2016, the mother, who was then resident in a care home with no prospect of returning home, ceased to occupy the property as her only or principal residence.
The claimant served a notice to quit upon the mother at the care home and her tenancy came to an end as she no longer met the “tenant condition” in section 81 of the Housing Act 1985.
The claimant sought possession from the defendant, who remained living at the property, on the basis that she was a trespasser. Had the mother died at home, the defendant would have been entitled to succeed to her mother’s tenancy pursuant to section 87 of the 1985 Act.
The defendant resisted the claim on the grounds that: (i) the decision to institute and prosecute the proceedings was unlawful; (ii) the defendant’s eviction would be a breach of article 8(2) of the European Convention on Human Rights; and (iii) if section 87 of the 1985 Act could not be read as entitling the defendant to succeed to her mother’s secure tenancy, it was incompatible with article 14 of the European Convention.
Held: The claim was allowed.
(1) It was the defendant’s case that the decision to bring the proceedings was unlawful in public law terms as the claimant failed to follow its own policy in that the defendant was not given a right of review. However, a public law defence presented a high hurdle. On the facts of this case the defence did not come close to clearing it: Doran v Liverpool City Council [2009] 1 WLR 2365; [2009] PLSCS 77 and Leicester City Council v Shearer [2014] HLR 8 considered.
(2) As regards article 8, the question for the court was whether the eviction of the defendant was proportionate to the claimant’s legitimate aim in seeking to recover possession of the property for the purpose of its housing management functions. It was not a question of exceptional circumstances rather of proportionality: Manchester City Council v Pinnock [2010] UKSC 45; [2010] 3 EGLR 11 considered.
The threshold for raising even an arguable case on proportionality was high and would be reached in only a small number of cases. Also, deference had to be given to housing management decisions by a local authority in respect of its scarce housing stock and the court should not let understandable sympathy for an occupier lower the high threshold: Corby Borough Council v Scott [2012] EWCA Civ 276; [2012] HLR 23; [2012] 21 EG 100 and Thurrock Borough Council v West [2012] EWCA Civ 1435; [2012] PLSCS 241; [2013] HLR 5 considered.
The consideration of article 8 defences in housing matters was highly fact specific. Considering all the competing factors, including the likely benefit for a family and impact on the defendant, eviction was proportionate and justified under article 8. The defendant did not want to move and the process would cause some anxiety. However, if she remained in the property it would be significantly underoccupied and she would be at risk of injury due to its cluttered state. If she moved a family would get suitable accommodation, as would the defendant.
(3) The defendant lacked status for an article 14 claim. Assuming status could be identifiable solely through the circumstances of others a characteristic was still required, which had to be something more than being identified through the discrimination. An individual’s own capacity was not a sufficient status for the purposes of article 14. Status required a characteristic which had the quality of reasonable certainty a fortiori when considering discrimination which concerned an ability to make a permanent change, ie, assign a tenancy.
The main determinant of impaired capacity was cognition and any condition affecting cognition could affect capacity. Whereas death was a certainty both in terms of inevitability and timing (ie, when it occurred), capacity might be lost and gained and the material time might be down to a chance occurrence (eg, a temporary deterioration in symptoms), or manipulated, for instance by a relative who wished to delay the assessment until they had lived in the property with the tenant for the qualifying period of 12 months.
The lack of certainty also had practical significance. Unless a notice to quit had been served, and the relevant time period expired, the tenant could resume occupation even if the relevant property had for a period of time ceased to be their principal place of residence. There could be direct conflict with a relative who wished to succeed to the tenancy (who might not want/agree with the tenant’s return to the property). Given the advances in old age care and increased number of people who had temporary or respite care the potential for problems would be very real. Identification through the incapacity of a third party could not be sufficiently certain to provide status for an article 14 claim.
(4) Even if the defendant had status to bring an article 14 claim, her defence would still fail because her position was not analogous with that of a potential successor of a tenant who died at home. A right to succeed on a certain and permanent occurrence was not analogous to a right to succeed on an uncertain and possibly temporary basis. Moreover, any difference in treatment was justified as section 87 of the 1985 Act achieved, by proportionate means, the legitimate aims of striking a balance between those who were entitled to succeed and those who were not. That enabled tenants, local authorities and others to identify with certainty those who were entitled and eligible to succeed to a secure tenancy and when, and of ensuring that social housing was fairly and appropriately distributed in line with the incremental reduction in succession rights.
Accordingly, the claim succeeded and an order for possession would be made.
Michelle Caney (instructed by Dudley Metropolitan Borough Council) appeared for the claimant; James Stark (instructed by Community Law Partnership, of Birmingham) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Dudley Metropolitan Borough Council v Mailley
