Austin v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | LADY HALE,Lord Kerr,Lord Brown,LORD WALKER,LORD HOPE |
| Judgment Date | 23 June 2010 |
| Neutral Citation | [2010] UKSC 28 |
| Date | 23 June 2010 |
| Court | Supreme Court |
[2010] UKSC 28
Lord Hope, Deputy President
Lord Walker
Lady Hale
Lord Brown
Lord Kerr
Appellant
Jan Luba QC
Desmond Rutledge
(Instructed by Anthony Gold Solicitors)
Respondent
Richard Drabble QC
Shaw Kelly
(Instructed by Southwark Legal Services)
LORD HOPE (with whom Lord Brown and Lord Kerr agree)
The appellant is the brother of the late Alan Austin ("the deceased") who was the tenant of a dwelling-house at 52 Michael Faraday House, Thurlow Street, London. The London Borough of Southwark ("the Council") granted the deceased a tenancy of the premises on 12 July 1983. It was a secure tenancy under the Housing Act 1980. The provisions of that Act were consolidated in the Housing Act 1985 ("the 1985 Act"). In June 1986 the Council brought a claim against the deceased in Lambeth County Court for possession of the premises, relying on the fact that he was in arrears of rent. An order for possession was made against him on 4 February 1987. It was a conditional suspended possession order, issued in the form then current which was Form N28. It provided that it was not to be enforced so long as the deceased paid the arrears of rent, amounting to £3,312.98, by 4 March 1987. The deceased failed to comply with the terms of the order, so on 4 March 1987 it became enforceable. But he remained in the premises, paying rent plus amounts towards the arrears, until his death 18 years later on 8 February 2005.
Prior to his death the deceased had been suffering from a chronic illness which proved to be terminal. The appellant maintains that he moved in to live with his brother in October 2003 and became the deceased's full-time carer. The Council does not accept the appellant's claim that he resided at the premises prior to the deceased's death. This has not yet been established as a fact. The deceased died intestate. No grant of probate or administration has been made, and he has no personal representative. On 11 September 2006 the Council served a notice to quit on the appellant, and in January 2007 it issued proceedings against him in Lambeth County Court for possession of the premises. Those proceedings are currently stayed, pending the outcome of this appeal.
On 29 March 2007 the appellant lodged an application in Lambeth County Court seeking to be appointed to represent the deceased's estate in the possession proceedings which had been brought in 1986, pursuant to CPR 19.8. If so appointed, his intention is to apply to the County Court under section 85(2)(b) of the 1985 Act for postponement of the date for possession in the order that was issued against the deceased in 1987. If that application is successful, it would have the effect of reviving the deceased's secure tenancy. The appellant would then seek to show that he was resident in the premises throughout the period of twelve months that ended with the deceased's death. If that is found to have been the case, the deceased's secure tenancy will vest in the appellant by virtue of section 87 of the 1985 Act.
On 5 September 2007 the appellant's application to be appointed to represent the deceased's estate in the original possession proceedings was dismissed by HHJ Welchman. On 29 January 2008 Flaux J dismissed the appellant's appeal against its dismissal: [2008] EWHC 355 (QB). On 16 February 2009 the Court of Appeal (Pill, Arden and Longmore LJJ) dismissed the appellant's appeal against the order of Flaux J: [2009] EWCA Civ 66. He now appeals to this Court.
The issues
It has until now been assumed that a secure tenancy ends at the moment when the tenant is in breach of the terms of a conditional suspended possession order. In his annotations to the 1985 Act in Current Law Statutes the annotator, Andrew Arden, seems to have entertained no doubt on the point. He said of section 82(2) that when the tenancy is brought to an end by the court under that subsection it ends on the date the court specifies, not at any later date when the tenant is actually evicted. In Thompson v Elmbridge Borough Council [1987] 1 WLR 1425, 1430-1431 Russell LJ described the effect of the subsection in this way:
"In my judgment, once the defendant in proceedings of this kind where there is a suspended order for possession, ceases to comply with the conditions of the order, namely, 'the punctual payment of the current rent and arrears,' and there is a breach of the terms of the order, the tenancy, whatever it may be, from that moment comes to an end."
In Burrows v Brent London Borough Council [1996] 1 WLR 1448, 1457 Lord Jauncey of Tullichettle, referring to the decision in Thompson, said that if the court makes an order but postpones the date of possession the tenancy will not be terminated under section 82(2) until any condition imposed under subsection (3) has been breached by the tenant. He added these words:
"However, the court's power to make an order postponing the date of possession is not restricted to exercise on the first application for an order for possession but may be exercised on the application of either party at any time prior to execution of that order and even after the secure tenancy has ended by reason of section 82(2). This is made clear by the words in section 85(2) 'or at any time before the execution of the order:' see also Greenwich London Borough Council v Regan, 28 HLR 469, 476, per Millett LJ. In such an event the secure tenancy is reinstated or revived subject to any conditions imposed under subsection (3)."
Encouraged by observations to the contrary effect by Lord Neuberger of Abbotsbury in Knowsley Housing Trust v White [2009] AC 636, para 91, the appellant now seeks to challenge this assumption. He submits that a secure tenancy does not end on breach of a conditional suspended possession order but endures until the order for possession is executed. That is the first issue in this appeal. On the assumption that a secure tenancy ends on breach of the terms of a conditional suspended possession order, a former tenant who continues in occupation assumes an unusual status. It has come to be known as that of a "tolerated trespasser". Commenting on this expression in Knowsley, paras 3-4, Lord Walker of Gestingthorpe described the phrase as rather unfortunate, but he concluded that it was too firmly embedded to be dislodged. If the appellant is right on the first issue, however, the deceased was still a tenant when he died. The description of him and so many other secure tenants who are in the same position as he was as "tolerated trespassers" will be consigned to history.
The appellant has an alternative argument, should he not succeed on the first issue. Until now it has been assumed that the right of a former secure tenant to apply for postponement of the date for possession to enable him to remedy the default, and thus revive a secure tenancy under section 85(2) of the 1985 Act according to the principles described by Millett LJ in Greenwich London Borough Council v Regan (1996) 28 HLR 469, 476, did not survive the death of the former secure tenant. In Brent London Borough Council v Knightley (1997) 29 HLR 857, 862 Aldous LJ said that the right to apply for a postponement of an order for possession was not an interest in land capable of being inherited. It was held that the daughter of a deceased tolerated trespasser who had resided with her could not apply under that subsection for the revival of the tenancy. The appellant submits that that case was wrongly decided. So the second issue is whether the former tenant's statutory right to apply to postpone the date for possession, and thus revive the secure tenancy, survives his death and passes to the estate of the deceased former tenant.
In support of the position which he seeks to advance on the second issue the appellant submits that the statutory right to apply to the court under section 85(2) is a "possession", the enjoyment of which is protected within the meaning of article 1, Protocol 1 of the European Convention on Human Rights. If so, he submits that a construction of section 85(2) which holds that the right determines on death would be contrary to that provision and should not be adopted. Those are the third and fourth issues. The fifth issue is whether, if the statutory right to apply under section 85(2) endures beyond the death of a former tenant, the deceased was a person who had an interest in a "claim" for the purposes of CPR 19.8 and, if so, what claim. But the respondent accepts that, if the claimed right did exist at the date of the deceased's death, the appellant would be entitled to apply to the court under that rule.
The statutory provisions
It is not necessary to do more to describe the general background than to refer to Lord Neuberger's summary of the law governing residential security of tenure in Knowsley [2009] AC 636, paras 30-47. There were three appeals in that case. They raised issues about the effect of suspended possession orders on the status and rights of secure tenants under the 1985 Act and assured tenants under the Housing Act 1988. It was held that an assured tenancy subject to a suspended possession order ended only when possession was delivered up, but that reconsideration of the approach that had been adopted to secure tenancies under the 1985 Act was inappropriate since it derived from long-standing authority, had been applied in numerous cases and would be resolved by section 299 of and Schedule 11 to the Housing and Regeneration Act 2008 ("the 2008 Act") which had amended and clarified the law. I shall come back to examine that part of the decision in Knowsley later. As we are concerned in this case only with secure tenancies, I shall concentrate on the relevant provisions of the 1985 Act as...
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