Landlord and tenant – Secure tenancy – Succession – Claimant seeking to succeed to secure tenancy following death of long-term partner – Defendant deciding that claimant not satisfying statutory requirement of having resided with partner for 12 months before death – Whether that requirement justified – Whether infringing claimant’s rights under Article 8 of European Convention on Human Rights – Claim dismissed
The claimant had lived since 1995 in a flat in Battersea Park Road, London SW, which her long-term partner held on a secure tenancy from the defendant council. For most of that period, the claimant had cohabited in the flat with her partner and their four children. However, there was a period between 2010 and 2012 when the relationship broke down and the partner lived elsewhere, while the claimant remained at the flat with some of the children. By January 2012, the relationship had been restored and the claimant’s partner returned to the flat. He became increasingly unwell and died in March 2012 after a few days at a hospice.
The claimant sought to succeed to her partner’s secure tenancy of the flat under the succession provisions of the Housing Act 1985. Since the secure tenancy had been granted before April 2012, the claimant had to fulfil the requirement under section 87, applicable where a couple were not married or civil partners but were living together as if they were, that the person seeking to succeed to the secure tenancy had resided with the tenant throughout the period of 12 months ending with the tenant’s death (the additional condition).
The defendants decided that the claimant was not entitled to succeed to the secure tenancy since she did not fulfil the additional condition in section 87. The claimant applied for judicial review of that decision. She based her challenge on her right to respect for her home and her private and family life under Article 8 of the European Convention on Human Rights and on the prohibition on discrimination under Article 14.
Held: The claim was dismissed.
(1) If two people were living together in the same household, that might be strong evidence that they were living together as if married or as if civil partners, but in each case it was necessary to go on and ascertain, so far as that was possible, the manner in which and why they were living together in the same household. Working out whether a particular couple were in such a relationship was a matter of judgment, in which several factors were taken into account. What mattered most was the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial inter-dependence. Where the facts showed that the two persons had been living together without being married or civil partners, their intentions, as demonstrated by their conduct, were of great importance. Where the relationship was obviously an unsettled one and not apparently regarded by either of them as having any degree of permanence, a conclusion that the two people did not live as if married throughout a period of 12 months could be reached more confidently than a conclusion simply that they did not live as if married. In context, the question of whether a sufficient state of permanence had been reached, so that the surviving party could fairly be said in all the circumstances to be a member of the original tenant’s family, was a question of fact and degree in each case. The longer the relationship, the easier it would be to infer permanence.
(2) Against that background, the requirement that a certain state of affairs had to be demonstrated to exist for a specific period of time served a legitimate aim. The aim was reliability in the assessment of whether two people were living together as if they were spouses or as if they were civil partners. While the additional condition might be something of a blunt instrument, which would not always feature as a specific requirement in particular legislation, that did not mean that it lacked an objective and reasonable justification. Further there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In context, the 12-month period selected was not unduly long. The additional condition was not essential but that did not mean that it could not properly be used: Helby v Rafferty [1978] 2 EGLR 75, Crake v Supplementary Benefits Commission [1982] 1 All ER 498, Chios Property Investment Co Ltd v Lopez [1988] 1 EGLR 98, City of Westminster v Peart (1991) 24 HLR 389, Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 EGLR 132 and Swift v Secretary of State for Justice [2013] EWCA Civ 193; [2014] QB 373 applied.
(3) The legislation in fact worked to confer, rather than deny, rights of succession where a couple lived together as if marred or as if having entered into a civil partnership. The additional condition was directed to achieving a reliable conclusion on the question of whether the couple were so living. In all the circumstances, the power to make a declaration of incompatibility with Article 14 of the European Convention on Human Rights did not engage. The defendants had properly applied the law in accordance with its terms and the claimant was not entitled to the orders she sought.
Iain Colville (instructed by TV Edwards LLP) appeared for the claimant; Wayne Beglan (instructed by the legal department of Wandsworth London Borough Council) appeared for the defendants; Ben Lask (instructed by the Treasury Solicitor) appeared for the interested party, the secretary of state for communities and local government.
Eileen O’Grady, barrister
