Dudley Metropolitan Council v Marilyn Mailley

Hearing date: 11 October 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 27 October 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The question on this appeal is whether the statutory provisions governing succession to and assignment of secure tenancies in the Housing Act 1985 (“HA 1985”) unlawfully directly discriminate against the appellant because of her status in the circumstances described below.

The appellant is Marilyn Mailley, the adult daughter of the late Dorothy Mailley (I shall refer to Marilyn Mailley as the appellant and to Dorothy Mailley as Mrs Mailley). On 2 May 1965, a property at 19 Uffmoor Estate, Halesowen B63 4JR (“the Property”) was let to Mrs Mailley by the landlord, Dudley Metropolitan Borough Council, the respondent. The Property has three bedrooms and two downstairs living rooms, one of which could be used as a fourth bedroom. Mrs Mailley moved in with the appellant and her two other children, and both she and the appellant, now 68 years old, lived there together as their sole or principal residence until 17 October 2016, when Mrs Mailley (who had vascular dementia and required a high level of physical care) became a permanent resident in a care home with no prospect of returning to the Property.

Mrs Mailley's tenancy became a secure tenancy when the Housing Act 1980 came into force on 3 October 1980, and since 1 April 1986, it has been governed, as a secure tenancy, by the HA 1985. Once Mrs Mailley ceased to occupy the Property as her only or principal residence on 17 October 2016, she could no longer satisfy the “tenant condition” in the legislation. That meant that her tenancy ceased to be secure at that point. Notice to quit was given by the respondent as a result, and the tenancy came to an end at the expiry of the notice on 19 December 2016. The respondent subsequently brought these possession proceedings against the appellant, who remained living at the Property.

Throughout the proceedings, the respondent has accepted a responsibility to re-house the appellant, and there is no question of her being made homeless. However, the appellant does not wish to be re-housed. Her case is that if her mother had not had to move permanently into a care home and had remained living at the Property until her death on 18 January 2018, she would have been entitled to succeed to the secure tenancy as a family member living with her, under section 87(b) HA 1985. Equally, if her mother had assigned the tenancy to her before she lost capacity to do so (pursuant to section 91(3) HA 1985), she could have succeeded to it on that basis. Neither of these eventualities occurred however.

Cotter J rejected the appellant's defence to the respondent's possession claim in a judgment reported at [2022] EWHC 2328 (QB). He found that the appellant is not a disabled person within the meaning of the Equality Act 2010 and although moving out of the Property will cause her significant distress and anxiety, there was a reasonable likelihood that a change of accommodation may have beneficial effects on her. He rejected her argument that the respondent failed to follow its policy in pursuing possession proceedings in this case finding that proper consideration was given to the lettings policy. He also rejected her contention that her eviction from the Property would be an unjustified interference with her article 8 rights under the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). In this regard, the judge recorded that there was no dispute that the respondent had legitimate aims for bringing this claim for possession, namely the management of its pool of scarce housing stock in order to allocate the Property to those most in need of it. The judge found there was exceptionally high demand for large properties (like the Property) and that it was significantly under occupied by the appellant who was living there alone. There was and remains a dire shortage of family accommodation in the Dudley area. He recognised that the appellant, a longstanding resident of the Property whose mother would have wanted her to continue living there, would have been entitled to remain in the Property in different circumstances, but had lost that right. Suitable alternative accommodation was, however, available and the appellant would not be made homeless. Having weighed the competing factors, including the likely benefits for a family in need of suitable housing and the impact on the appellant herself, the judge concluded that eviction was proportionate and justified under article 8. None of these conclusions is challenged on this appeal.

I shall return to Cotter J's conclusions on the lawfulness of the legislative provisions in the HA 1985 but first it is helpful to explain the legislative scheme for secure tenancies.

Secure tenancies

Secure tenancies were introduced by the Housing Act 1980 in order to give security of tenure to tenants of local authorities and other public sector landlords (and also to enable secure tenants to buy their homes at a discount from market value). Unlike the concept of a statutory tenancy under the Rent Acts, a secure tenancy was a tenancy that continued until brought to an end either by the tenant or by court order. If it was a fixed-term tenancy, a periodic tenancy came into being on its expiry. It was also capable of being transferred by assignment or on death. In its original form, the Housing Act 1980 contained provisions about succession in sections 30 and 31. Section 30 dealt with succession on death of a tenant and permitted a deceased tenant's spouse or other family member to succeed to the tenancy if qualified. Such a person was qualified if he or she occupied the dwelling house as their only or principal home at the time of the tenant's death and resided with the tenant throughout the period of twelve months ending with the tenant's death (section 30(1) and (2)).

The HA 1985 was a consolidating Act. Sections 79 to 81 HA 1985 govern when a tenancy will be secure. Significantly, a tenancy is only secure if both the landlord and tenant condition are satisfied. The tenant condition in section 81 HA 1985 is fulfilled where:

“the tenant is an individual and occupies the dwelling-house as his only or principal home …”

Accordingly, there are two parts to the tenant condition. First, the tenant must be in occupation of the dwelling. Secondly, that occupation must be as the tenant's only or principal home.

The circumstances in which a tenant is to be regarded as continuing in occupation of a dwelling as a home even though not actually living there are considered in a number of cases, including some decided under earlier Rent Restriction Acts and the Rent Acts, but the principles laid down in them remain applicable to the tenant condition in HA 1985. In Tickner v Hearn [1960] 1 WLR 1406, the tenant, an elderly woman, lived in a house as a statutory tenant with her adult daughter, protected by the Rent Restriction Acts. On a temporary visit to another daughter in July 1954 she was admitted to a mental hospital suffering from paranoid schizophrenia and remained in the hospital continuously thereafter, although by November 1959, when she was 73, she had improved sufficiently to be entitled to discharge herself at short notice. Her daughter continued to live in the house as their home. In December 1959 the landlord instituted possession proceedings in light of the tenant's long absence. The medical evidence at trial was that it was most unlikely that the tenant would ever leave hospital in the light of the constant psychiatric care she required, though it was accepted that developments in potential treatment that would help her could not be ruled out, and she said many times that she regarded the house as her home and wished to go back there if better. The trial judge refused to make an order for possession and his decision was upheld on appeal. This court emphasised that the question was one of fact and degree and there must be “evidence of something more than a vague wish to return. It must be a real hope coupled with the practicable possibility of its fulfilment within a reasonable time.” It was a borderline case but there was evidence to support the trial judge's conclusion in the facts just described.

Rights of succession were significantly curtailed by section 160 of the Localism Act 2011, but those provisions do not apply to tenancies granted before the section came into force on 1 April 2012: see section 160(6). For secure tenancies granted before 1 April 2012 (and therefore applicable in this case), section 87 HA 1985 continued to apply. It provides:

“87.Persons qualified to succeed tenant

A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either –

(a) he is the tenant's spouse or civil partner, or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death; unless, in either case, the tenant was himself a successor, as defined in section 88.”