The Court of Appeal today upheld a county court ruling endorsing a local authority’s decision that a woman must vacate a council flat after her husband had terminated the tenancy.
The council became aware of the wife’s continued presence at the flat only when their officers attended to board up the premises.
The court was told that Kensington and Chelsea Royal London Borough Council granted a tenancy of 28 Bracewell Road, London W10, to the husband in 1970. At that time, it was common practice to grant sole tenancies to the male spouse of a married couple who were both intending to reside in the same premises.
The wife left her husband on two occasions, but, from 1982, they shared the property although, during that time, they lived “separate lives”. The wife was aware that she was not a tenant of the property, and, in 1991, the husband told the council that he did not want her to become a joint tenant.
In 2001, the husband terminated the tenancy, and the council transferred it to another, smaller flat the husband’s sole use. The council claimed that, thereafter, the wife became a trespasser in the Bracewell Road property.
The county court judge found that if the council had known that the wife was also living in that property they would not have transferred the tenancy to the husband’s new home.
Challenging the judge’s decision on the basis that the wife’s rights under Articles 8 and 14 of the European Convention on Human Rights had been breached, Andrew Short, counsel for the wife, argued that the authority had acted in a discriminatory manner when granting the husband a sole tenancy of the property in 1970.
Mr Short said that it was immaterial that the wife did not ask to be made a joint tenant in 1970, or that social conditions had changed.
However, dismissing the appeal, Arden LJ said that the council had “no positive obligation, whether for Article 8 or 14 purposes, to treat the appellant as a remaining joint tenant under their housing allocation scheme policy unless they knew that the appellant was in occupation before they transferred the tenancy”.
The council do not dispute that the wife is entitled to the sole tenancy of a one-bedroom council flat. However, the ruling states that, unlike a remaining joint tenant under the housing allocation scheme, the wife is obliged to go into temporary accommodation before being provided with a new flat.
Kensington and Chelsea Royal London Borough Council v O’Sullivan and another Court of Appeal (Aldous, Waller and Arden LJJ) 25 March 2003.
Andrew Short (instructed by Peter Kandler & Co) appeared for the appellant; Mark Lowe QC and Richard Nall-Cain (instructed by the solicitor to Kensington and Chelsea Royal London Borough Council) appeared for the respondent; the husband was not represented and did not appear.
References: PLS News 26/3/03
