Landlord and tenant – Housing Act 1985 – Secure tenancy – Succession – Appellant seeking to succeed to secure tenancy following death of long-term partner – Appellant not satisfying requirement under section 87 of 1985 Act of having resided with partner for 12 months before death – Whether that requirement justified – Whether infringing claimant’s rights under Articles 8 and 14 of European Convention on Human Rights – Appeal dismissed
From 1995, the appellant lived with her long-term partner in a four-bedroom flat of which the partner was the sole tenant under a secure tenancy from the first respondent local authority. In December 2010, the partner moved out following a breakdown in the relationship, leaving the appellant in the flat with their two younger children. The partner moved back into the flat in January 2012. By that time, he was seriously ill and he died in March 2012.
The appellant sought to succeed to the secure tenancy of the flat pursuant to Part IV of the Housing Act 1985. However, on the ordinary reading of the succession provisions as they applied to tenancies granted before April 2012, she was not a person qualified to succeed, within the meaning of section 87 of the 1985 Act, since was neither the tenant’s spouse or civil partner nor another member of the tenant’s family who had resided with him throughout the period of 12 months ending with the tenant’s death.
Although the appellant qualified as a “member of the tenant’s family” as defined in section 113, being a person with whom the tenant had lived as husband and wife, she could not satisfy the additional condition of 12 months’ residence ending with the tenant’s death because her partner had been absent from the flat for most of the relevant period.
The first respondents decided that the appellant was not entitled to succeed to the tenancy. The appellant challenged that decision by way of judicial review. She contended that the application of the “12-month condition” amounted to a breach of her right to respect for her home and private life under Article 8 of the European Convention on Human Rights and was discriminatory contrary to Article 14.
Dismissing the appellant’s claim, the judge held that, even assuming that the position of spouses and common law spouses was analogous, the application of the 12-month condition to common law spouses was nonetheless justified: see [2014] EWHC 4040 (Admin); [2014] PLSCS 347. The appellant appealed.
For tenancies entered into after April 2012 in respect of properties in England, the 12-month condition no longer applied to those in the position of the appellant since, by virtue of section 86A as introduced by the Localism Act 2011, a “common law” spouse who was person living with the tenant as husband and wife was equated with a legal spouse or civil partner.
Held: The appeal was dismissed.
(1) The application of the 12-month pursued a legitimate aim in achieving reliability in the assessment of whether two people were living together as if they were spouses or civil partners. Whether a couple were living together as if married depended on an assessment of a number of factors and was not always easy to decide, but the length of time that they had been living together was important: Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; 2004] 2 EGLR 132 and Chios Property Investment Co Ltd v Lopez (1987) 20 HLR 120; [1988] 1 EGLR 98 applied.
Local authority secure tenancies were a valuable and limited resource. Although it had long been policy to grant a right of succession to family members for whom the property had also been their home, it was also necessary to have regard to the interests of others who were on the council waiting list, and of councils themselves in making best use of housing stock. There was therefore a policy of requiring a degree of permanence in the relevant relationship, since it would not be fair to grant succession rights to family members whose relevant relationship with the tenant was essentially transient. While the necessary degree of permanence was inherently present in the case of spouses who had entered into a legal marriage or civil partnership, there was no such formal commitment in the case of a common law spouse or other family member of the kind defined in section 113. The purpose of imposing the 12-month condition was that a reasonably long period of living together might be taken to demonstrate the same element of permanence and constancy in the relevant relationship.
It was legitimate to seek to limit rights of succession to family members whose relevant relationship was of a permanent character, and also, subject to the issue of proportionality, to treat that requirement as sufficiently satisfied in the case of legal spouses but not by other relationships which did not involve the same formal commitment.
(2) The present case involved general measures of economic and social strategy, in which the state should be accorded a wide margin of appreciation with regard to proportionality. The applicable test was therefore whether the measure was manifestly without reasonable foundation. In that regard, cases involving access to social housing should be treated the same as those concerning access to welfare benefits. Both represented public resources the conditions for access to which had pre-eminently to be a matter for political judgment: Carson v United Kingdom (2010) 51 EHRR 13, Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271; [2003] 1 WLR 617 and R (on the application of Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173 applied.
Applying that test, the 12-month condition was proportionate. The imposition of that condition was not manifestly without reasonable foundation as a criterion for demonstrating the necessary degree of permanence and constancy. The fact that a couple had been living together for a minimum period of time was the best available objective demonstration that their relationship had the necessary quality of permanence and constancy. If a period much less than 12 months were chosen, its value as a marker of a permanent relationship would be slight.
The mere fact that the statutory regime had now changed did not mean that the old regime had always been unjustifiable. The changes made in 2011 did not derive from any acknowledgment that that was the case. Nor, once the change was made, was it unjustifiable not to render it retrospective. The decision whether to make a change of that character retrospective was itself a question on which the legislature was entitled to a wide margin of appreciation. The government had taken the straightforward view that the entire package of changes to succession rights introduced in 2012, of which the removal of the 12-month condition was only part, should apply prospectively only, so as to avoid unsettling existing legal rights and expectations: R v Secretary of State for Work and Pensions, ex parte Hooper [2005] UKHL 29; [2005] 1 WLR 1681 and Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39; [2009] ICR 762 applied.
(3) Accordingly, the judge had been entitled to find that, even if the situations of common law spouses and married spouses were analogous for the purpose of Article 14 of the Convention, the difference in treatment between them was justified: Swift v Secretary of State for Justice [2013] EWCA Civ 193; [2014] QB 373 considered.
The comparatively brief interruption in the appellant’s relationship with her partner, after a long period of living together, had the consequence of depriving her of the right to succeed to the tenancy of the property that had been her home for many years. However, the fact that bright-line rules would sometimes have hard effects did not itself render them unlawful. The first respondents could not be blamed for insisting on the rules in circumstances where there was an acute shortage of social housing.
Iain Colville and Richard Granby (instructed by TV Edwards LLP) appeared for the appellant; Wayne Beglan (instructed by Wandsworth London Borough Council Legal Services) appeared for the first respondents; Ben Lask (instructed by the Treasury Solicitor) appeared for the second respondent.
