Local authority – Secure tenancy — Succession — Foster child claiming entitlement to succeed to secure tenancy as member of tenant’s family – Whether foster child constituting member of family for purposes of section 87 of Housing Act 1985 — Whether excluding foster child breaching European Convention of Human Rights – Appeal and cross-appeal dismissed
The deceased became the foster mother of the second appellant in 1967. In 1986, the local authority granted the deceased a secure tenancy of a two-bedroomed house on the express basis that the property would be occupied by her and her “son”. The second appellant thereafter always lived in the property except when attending university and for six months as part of a training contract.
When the second appellant returned home, his foster mother was diagnosed with a serious illness and he became her primary carer. She died in 2005, at which time the second appellant had been back home for one week short of 12 months. The respondent local authority served a notice to quit on the deceased’s personal representatives and the second appellant and issued a claim for possession. The judge granted possession, holding that although the respondents were estopped from denying that the second appellant was a member of the deceased’s family for the purposes of section 113 of the Housing Act 1985, he had not been living in the property for the 12 months prior to her death.
The second appellant appealed, but he did not seek a stay of execution and vacated the premises as ordered. The property was let to new tenants under a secure tenancy. The Court of Appeal set aside the possession order and remitted the matter for rehearing. Attempts at compromise failed, but the respondents changed their position and no longer disputed that the appellant satisfied the residence requirement for succession. Accordingly, the second appellant applied to join the subsequent tenants and issued his own claim for possession against them. The judge dismissed both the respondents’ claim for possession and the second appellant’s claim.
The second appellant appealed, contending that he was qualified to succeed to the tenancy on the ground that he came within the meaning of “another member of the tenant’s family” for the purposes of sections 87 and 113 of the 1985 Act, read together with Articles 8 and 14 of the European Convention on Human Rights. The subsequent tenants cross-appealed against a decision dismissing their application for costs against the respondents.
Held: The appeal and cross-appeal were dismissed.
If the issue depended only on the construction of section 87 of the 1985 Act, there would be a clear answer since the appellant was undoubtedly a “member of the tenant’s family” within the extended meaning given to that expression: Brock v Wollams [1949] 2 KB 388 and Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 considered. However, the latter case concerned the Rent Act 1977 and that legislation differed from the Housing Acts dealing with public sector housing.
It was necessary to examine the purpose of the legislation and the context; although the purpose of the 1985 Act was essentially the same as that of the 1977 Act, context remained important. That context was supplied by section 113 of the 1985 Act. Unlike the Rent Act cases analysed in Fitzpatrick, the 1985 Act defined members of a person’s family: namely, a person was a member of another’s family if he was that person’s child. However, section 113(2) went further and narrowed the meaning of the words in section 113(1)(b). There was a heavy emphasis on the blood relationship. Significantly, the meaning of “child” was expanded to include a stepchild and illegitimate child, but it did not include a foster child. The words “a person is a member of another’s family within the meaning of this Part if…” were thus to be construed to mean that a person was a member of the family only if he could bring himself within its ambit.
“Child” had to be limited to the categories stipulated in section 113(2), namely blood relationships, stepchildren and illegitimate children. When parliament wanted to extend the meaning to cover de facto relationships, it did so expressly; for example, it defined “spouse or civil partner” to include those who lived together as husband and wife or were civil partners. Absent such amplification, it was not possible to extend the meaning of a “child” to include a foster child. That definition of the terms distinguished the Housing Act cases from those under the Rent Act and the flexibility afforded by Fitzpatrick did not apply: Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271; [2003] 1 WLR 617 considered.
Furthermore, although the second appellant’s right to private and family life under Article 8 of the Convention were engaged, the exclusion of foster children was objectively justified and there was no need to extend the ordinary and natural meaning of the words of the statute. It followed that the legislation was compatible with the appellant’s Convention rights but unfortunately for this particular foster child, he did not qualify to succeed to the tenancy.
Furthermore, there was no reason why the respondents, rather than the second appellant, should be ordered to pay the costs of the subsequent tenants.
Jan Luba QC and Adam Fullwood (instructed by Howells LLP, of Sheffield) appeared for the first and second appellants; Bryan McGuire QC and Tom Tyson (instructed by the legal department of Sheffield City Council) appeared for the respondents; Jonathan Karas QC and Ben McCormack (instructed by the pro bono unit) appeared for the third and fourth appellants.
Eileen O’Grady, barrister
