Elizabeth Dwomoh unpicks a case concerning the compatibility of section 87 of the Housing Act 1985 with Article 14 and the threshold required for public law and human rights defences.
Key points
- The incapacity of a third party could not be sufficiently certain to provide “status” for an Article 14 claim
- An element of practical realism is required before levelling criticism at a housing provider for failing to provide support to a tenant
In Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB); [2022] PLSCS 155, the High Court has provided useful guidance in relation to the compatibility of section 87 of the Housing Act 1985 with Article 14 of the European Convention on Human Rights when issues of succession and a tenant’s move into permanent residential care arise. The court has also underscored the high threshold required to defend a claim for possession based on human rights and public law grounds.
The problem
The claimant, Dudley Metropolitan Borough Council, granted Dorothy Mailley a tenancy of a house situated in Halesowen, West Midlands. She occupied the property with her daughter, the defendant Marilyn Mailley, for more than 50 years. When the Housing Act 1980 came into force, the tenancy became a secure tenancy.
By October 2016, the defendant’s mother had become seriously ill. She had lost mental capacity and could no longer be cared for at home. The defendant was her attorney, under a power of attorney made in 2013. Accordingly, the defendant could not assign the tenancy to herself.
On 17 October 2016, the defendant’s mother permanently moved into residential care. As she no longer occupied the property as her only or principal home, the council subsequently served notice to determine her contractual tenancy. On expiry of the same, the defendant became a trespasser. The council unsuccessfully tried to help the defendant find alternative accommodation by accepting her onto the housing register and making offers of alternative properties, which she refused.
The defendant’s mother died in January 2018 and the council issued possession proceedings. The defendant defended the same on the basis of the incompatibility of section 87 with Article 14, human rights and public law grounds.
The incompatibility defence
For secure tenancies granted before 1 April 2016, section 87 provided that an individual could succeed to a deceased tenant’s secure tenancy if, at the time of the tenant’s death, the individual occupied the property as their only or principal home. In the case of a family member, the individual would have had to reside with the tenant throughout the period of 12 months ending with the tenant’s death.
Article 14 provides that “the enjoyment of… rights and freedoms… shall be secured without discrimination on any ground such as sex, race… or other status”.
The defendant argued that if section 87 could not be read down as including “the family of those removed from their home by reason of their ill health (and who due to mental incapacity cannot assign their secure tenancies under Section 91(3)) then section 87 was incompatible with Article 14. The High Court rejected the incompatibility defence. It affirmed that only differences in treatment based on an identifiable characteristic or “status” were capable of amounting to discrimination within the meaning of Article 14. “Status” required a characteristic that had the quality of “reasonable certainty”, especially when the discrimination alleged 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. Death was a certainty in respect of inevitability and timing. Capacity, however, could be lost and regained. Identification through the incapacity of a third party could not be sufficiently certain to provide “status” for an Article 14 claim. A right to succeed on a certain and permanent occurrence, via an assignment or the death of a tenant, was not analogous to a right to succeed on an uncertain and possibly temporary basis, which could give rise to a conflict of interest between the tenant and the family member.
The human rights challenge
The defendant contended that the length of her occupation at the property and the negative effect on her mental health if required to move rendered the council’s eviction attempts disproportionate. The council disputed that Article 8 of the Convention had been breached because, in seeking to recover possession of the property, it was pursuing the legitimate aim of allocating its scare resources.
Having regard to the authorities, the court underscored the high threshold required to raise an arguable case on proportionality. It observed that understandable sympathy for an occupier should not lower the same. Additionally, deference should be given to housing management decisions taken by local authorities in allocating their scarce housing stock. In the current case, the defendant’s Article 8 defence did not meet the necessary threshold.
The public law challenge
Although the council accepted it had not followed its own lettings policy by failing to offer the defendant a review before seeking possession, it subsequently did so, but the defendant failed to engage. The High Court observed that a public law defence presents a high hurdle. In the present case the defendant had not cleared that hurdle.
In allowing the claim for possession, the court observed that an element of “practical realism” had to be taken into account before criticism was levelled at a housing provider for failing to provide support to a tenant. Contrary to the defendant’s pleaded case, she accepted she had been supported.
Elizabeth Dwomoh is a barrister at Lamb Chambers
