Possession: succession when tenant moves permanently into residential care

A daughter lives with her mother, a secure tenant, for more than 30 years. The tenant makes a power of attorney. Her daughter is appointed the sole attorney. The tenant falls ill and is cared for by her daughter at home. On medical advice the tenant moves into residential care on a temporary basis, which subsequently becomes permanent. While in care, the mother develops dementia and loses mental capacity. Although it would have been her wish for her tenancy to be assigned to her daughter, this cannot occur with her daughter as her attorney. The local authority determines that the mother has lost security of tenure, by virtue of the fact that she no longer occupies the property as her only or principal home. A notice to quit is subsequently served to bring her contractual tenancy to an end. The mother dies, but possession proceedings are issued after the daughter fails to vacate the property. Can the daughter successfully defend the claim by contending that section 87 of the Housing Act 1985 was incompatible with article 14 of the European Convention on Human Rights? The High Court was asked to determine this issue, among others, in Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB); [2022] EWHC 2328 (QB). It was argued on the daughter’s behalf 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 ECHR. In short, it was contended that there was no rational connection with a legitimate aim for a qualifying successor whose parent had been required to cease to occupy the property in such circumstances to be treated differently from a qualifying successor whose parent died at home. The High Court rejected the incompatibility defence. It noted that only differences in treatment based on an identifiable characteristic or “status” were capable of amounting to discrimination within the meaning of article 14. Assuming status was identifiable solely through the circumstances of others, a characteristic was still required. Earlier case law had already determined that an individual’s own capacity was not sufficient status for the purpose of article 14. Status required a characteristic that had the quality of “reasonable certainty” all the more so when considering discrimination which concerned an ability to make a permanent change, i.e. 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. Additionally, the High Court found that 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. Such a basis could give rise to conflict. For example, if a family member succeeded at the date the tenant ceased to occupy the property as their only or principal home due to ill health and also being unable to assign their tenancy, the original tenant would lose their statutory rights even if they subsequently regained capacity. Lastly, section 87 was deemed to achieve the legitimate aim of striking a balance between those entitled to succeed and those who were not, by proportionate means. The daughter’s public law and human rights defences also failed. The court granted the local authority possession. Elizabeth Dwomoh is a barrister at Lamb Chambers