Dudley Metropolitan Borough Council v Marilyn Mailley
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cotter |
| Judgment Date | 14 September 2022 |
| Neutral Citation | [2022] EWHC 2328 (QB) |
| Docket Number | Case No: F90BM154 |
| Court | Queen's Bench Division |
[2022] EWHC 2328 (QB)
Mr Justice Cotter
Case No: F90BM154
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Michelle Caney (instructed by Dudley Metropolitan Borough Council) for the Claimant
James Stark (instructed by Community Law Partnership) for the Defendant
Hearing dates: 29 & 31 March 2022, 1 April 2022 & 7 June 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant seeks possession of 19 Uffmoor Estate, Halesowen, West Midlands B63 4JR (“No 19”) from the Defendant, Ms Marilyn Mailley.
No 19 was let to the late Mrs Dorothy Mailley, the Defendant's mother, on 2 nd May 1965. The Defendant has lived at No 19 since she was aged 11 years. She is now aged 68.
Had Mrs Dorothy Mailley died at home at any time from the date that Section 30 Housing Act 1980 (the predecessor of Section 87 Housing Act 1985) came into force in October 1980 until the date in October 2016 that it became clear that she no longer had any realistic prospect of returning home (from the nursing home into which she had been admitted for respite care earlier that year), the Defendant would have been entitled to succeed to her mother's tenancy pursuant to Section 87 Housing Act 1985. Further, at the time when she retained mental capacity Mrs Dorothy Mailley could have assigned the tenancy to her daughter Marilyn as a qualifying successor under Section 91(3) Housing Act 1985 (although the Defendant had a lasting power of attorney, she could not use that power for her own benefit). There can be little doubt that Mrs Dorothy Mailley would have wanted the Defendant to continue living at No 19.
Amongst other issues this case raises the effect of a period of time spent in residential care by a person with no mental capacity and whether it should deprive a member of the family who had resided with them at a property of their right to succeed to that property.
The Claimant's case is simple. In October 2016 Mrs Dorothy Mailley, who was then resident in a care home with no prospect of return to her home, ceased to occupy No 19 as her only or principal residence. As such her tenancy ceased to be secure as the tenant condition was not satisfied. The Claimant served a notice to quit upon Mrs Dorothy Mailley at the care home and as a result her tenancy came to an end. Thereafter her daughter, the Defendant, who remained living at the property, was a trespasser, and the Claimant is entitled to possession.
The Defendant defends this claim on a number of grounds
(a) Firstly, that the decision to institute and prosecute these proceedings is unlawful in public law terms. Paragraph 9.10 of the Claimant's Letting Policy states:
“Lodgers left in occupation will not qualify for tenancy transfer or alternative accommodation under 9.10 above if they are not eligible to be accepted on to the Waiting List. Such applicants will be required to leave, subject to review by a Team Manager if requested. The Team Manager may consider exceptional circumstances as described in Section 19.” (Underlining added)
Paragraph 9.8 states:
“Where the property is occupied by someone not qualified to succeed (e.g. because of a previous succession) or where a successor other than a spouse/civil partner/common law partner is under occupying, the provisions in 9.10 for lodgers left in occupation will be applied. If the tenancy cannot be granted, possession will be sought, subject to a review by a Team Manager if the occupant so requests. Where the property has been adapted for the remaining occupier, or the remaining occupier has a learning disability or a severe and enduring mental health issue and could not cope with relocation, the Housing Manager may agree to grant the tenancy or where there are other exceptional circumstances refer as an exception or appeal in accordance with Section 19.”
Section 19 refers to “Exceptions, Appeals and Reviews”. It states at paragraph 19.2:
“Exceptions to policy in the following areas may be agreed by the authorised officers where there are exceptional circumstances:
..
c) To allow an allocation outside the usual occupancy standards or designation or restriction on property types – authorised by Team Manager (Housing Occupational Therapy), Team Manager (Team/Customer Services) or Head of Service.”
It is the Defendant's case that the Claimant failed to follow its own policy in that the Defendant was not given a right of review.
(b) Secondly, that the Defendant's eviction from No 19 would be a breach of Article 8(2) ECHR in that it would not be proportionate to a legitimate aim and unlawful as a matter of public law having regard to the personal circumstances of the Defendant. In particular the relevant circumstances are the likely consequences for her mental health were she to be evicted from her home.
(c) Thirdly, that properly interpreted in accordance with Section 3 Human Rights Act 1988, the Defendant should be treated as having been entitled to succeed to her mother's secure tenancy when she was removed permanently from her home. If Section 87 Housing Act 1985 cannot be read down as including within those entitled to succeed the members of 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) Housing Act 1985 to qualifying successors when they are removed from their homes due to ill-health), then Section 87 Housing Act 1985 is incompatible with Article 14 ECHR. There is no rational connection with a legitimate aim for a qualifying successor whose parent has been required to cease to occupy the property in such circumstances to be treated any differently from a qualifying successor whose parent died at home and a declaration to that effect should be made under Section 4 of the Human Rights Act 1998.
Following the amendment of the defence in 2019 and the transfer of this claim to the High Court the Secretary of State for Communities and Local Government was informed of the application for a declaration of incompatibility but has not chosen to intervene to advance any justification for the difference in treatment of a person in the Defendant's position from the qualifying successor of a parent who dies at home or is capable of assigning the tenancy to the successor when due to ill-health they have to be removed into residential care.
Evidence
I heard from Ms Kamlesh Sharma and Ms Cheyrl Scrivens on behalf of the Claimant and also the Defendant. There was also a large bundle of relevant documentation.
I also heard expert evidence from Dr Series, a consultant old age psychiatrist on behalf of the Claimant and Dr Waheed, a consultant liaison psychiatrist, on behalf of the Defendant.
Unfortunately, ill health due to COVID resulted in a protracted hearing.
Chronology
Having considered all the evidence I make the following findings.
The Defendant was born in 1954. The Defendant's mother was offered the tenancy of 19 Uffmoor Estate, and it commenced on 24 th May 1965. 1 No 19 is a three-bedroom house with two living rooms downstairs, the second of which could be used as a fourth bedroom. It is situated on a corner plot, with a large front, side and rear
gardens, and sufficient space to park a car. The Property would normally be allocated to a family. It was let Mrs Dorothy Mailley as such in 1965:“Family 4 Tenant D. Mailley 2 Boys 1 girl”
Save for period when she was at university between 1972 and 1975 the Defendant has lived at 19 Uffmoor Estate. It has been her only and principal since 1965. She had two younger brothers Chris and Bill both of whom left home.
On 3 rd October 1980 the Housing Act 1980 came into force and Mrs Dorothy Mailley became a secure tenant.
On 19 th August 1998 the Claimant declined Mrs Dorothy Mailley's request that the Defendant be added as a joint tenant. It was stated that she was not eligible to be offered a house in accordance with the Claimant's policy. As the Defendant stated the request was not taken further.
The Defendant became involved in the care successively of her maternal uncle Cyril, his estranged wife Joan and then her mother Dorothy. Cyril died in 2002. His belongings are now at No19. Joan died in 2011. Her belongings are also at No 19 which now contains property from three relatives (the Defendant's grandmother, her uncle Cyril and Aunt Joan). The Defendant's nephew Simon and his daughter stayed at the property for a while; some of their belongings also remain in the house.
In 2013 Mrs Dorothy Mailley signed a power of attorney in favour of her daughter. After this took place an assignment of the tenancy would have required someone to consider Ms Mailley's best interests. The Defendant could not have signed it over to herself.
In 2014 Mrs Dorothy Mailley became seriously ill with a problem with her gall bladder and was admitted to hospital. On being discharged from hospital she required substantial care at home which was provided by the Defendant with carers from the local authority. She suffered from osteoarthritis, her mobility was very limited and she developed vascular dementia which began to deteriorate.
In March 2016 Mrs Dorothy Mailley developed a pressure sore on her spine and was taken for respite care at Netherton Care Home. 2
On 19 th July 2016 there was a best interests meeting at Netherton Green Nursing Home and it was agreed that Mrs Dorothy Mailley should stay there. As a direct result of this decision the Defendant became very upset. As was reported to the GP on 25 th...
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