Susan Turley v London Borough of Wandsworth and Another

JurisdictionEngland & Wales
JudgeLord Justice Underhill,Sir Stephen Tomlinson,Lord Justice Jackson
Judgment Date24 March 2017
Neutral Citation[2017] EWCA Civ 189
Docket NumberCase No: C1/2014/4287
CourtCourt of Appeal (Civil Division)
Date24 March 2017
Between:
Susan Turley
Appellant
and
London Borough of Wandsworth
Secretary of State for Communities and Local Government
Respondents

[2017] EWCA Civ 189

Before:

Lord Justice Jackson

Lord Justice Underhill

and

Sir Stephen Tomlinson

Case No: C1/2014/4287

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM High Court, Queen's Bench Division,

Administrative Court

Mr Justice Knowles CBE

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Iain Colville and Mr Richard Granby (instructed by TV Edwards LLP) for the Appellant

Mr Wayne Beglan (instructed by Legal Services, London Borough of Wandsworth) for the First Respondent

Mr Ben Lask (instructed by the Treasury Solicitor) for the Second Respondent

Hearing dates: 30 November and 1 December 2016

Written submissions: 17 and 23 February 2017

Approved Judgment

Lord Justice Underhill

INTRODUCTION

1

The Appellant, Susan Turley, was the long-term partner of Roger Doyle. They had four children. In 1995 they moved into a four-bedroom house in Battersea Park Road in London: it was on the ground floor and had a garden. Mr Doyle was the sole tenant. The landlord was the First Respondent, the London Borough of Wandsworth ("the Council"). The tenancy was a secure tenancy within the meaning of the Housing Act 1985. In 2010 there was a breakdown in the relationship between the Appellant and Mr Doyle, and in December he moved out (though without giving up the tenancy), leaving her living in the flat with the younger children, then aged 17 and 15. He came back in January 2012, but he was by then seriously ill and sadly he died on 17 March that year.

2

The regime under the 1985 Act as it stood in 2012 provided for family members who were residing with a secure tenant at the time of his or her death in certain circumstances to succeed to the tenancy. However, on the ordinary reading of the provisions in question, which I set out below, the Appellant does not fall within the definition of a family member and so has no entitlement to succeed to Mr Doyle's tenancy. The Council has accordingly required her to vacate the house. The essential issue raised by this appeal is whether that state of affairs gives rise to a breach of her rights under the European Convention of Human Rights.

3

By a judgment handed down on 8 December 2014 Knowles J dismissed the Appellant's claim. She appeals to this Court with the permission of Moore-Bick LJ. She has been represented before us by Mr Iain Colville and Mr Richard Granby the Council by Mr Wayne Beglan; Mr Colville and Mr Beglan appeared below. Because the case includes a claim for a declaration of incompatibility the Secretary of State for Communities and Local Government was joined as an interested party, and is the Second Respondent before us. He is represented by Mr Ben Lask, who also appeared below.

4

On 8 February 2017, when this judgment was in an advanced state of preparation, the Supreme Court handed down its judgment in In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8, [2017] 1 WLR 519, which arguably has a bearing on the issues raised by this appeal. We gave permission for the parties to lodge written submissions addressing the implications of that decision.

THE STATUTORY PROVISIONS

5

The right of succession to a secure tenancy is governed by section 87, which forms part of Part IV, of the 1985 Act. This reads (so far as relevant) as follows:

"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;

…"

"Spouse" is not a defined term but it evidently connotes legal marriage; "civil partner" means a partner under the Civil Partnership Act 2004. For convenience, I will use the term "spouse" to cover both. I will refer to the latter part of limb (b) as "the twelve-month condition".

6

Who counts as a "member of the tenant's family" for the purposes of Part IV is defined by section 113 of the Act as follows:

"(1) A person is a member of another's family within the meaning of this Part if –

(a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or

(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.

(2) For the purpose of subsection (1)(b) –

(a) a relationship by marriage or civil partnership shall be treated as a relationship by blood,

(b) a relationship of the half-blood shall be treated as a relationship of the whole blood,

(c) the stepchild of a person shall be treated as his child, and

(d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father."

For convenience I will in this judgment refer to a person falling within the second half of section 113 (1) (a) ("or he and that person" etc) by the term – inaccurate but hallowed by long usage – "common law spouse". I will refer to family members of the kinds identified in section 113 (1) (b), as glossed in sub-section (2), as "blood relatives" (though strictly that too is not quite accurate because of the inclusion of step-children).

7

It will be seen that (subject to the points which I consider below) the Appellant has no right to succeed to Mr Doyle's tenancy under those provisions because (1) she was not his spouse or civil partner so as to fall under limb (a) of section 87; and (2), although she was a member of his family because they were living together as husband and wife within the meaning of section 113 (1) (a), she could not satisfy the twelve-month condition in limb (b) of section 87: only about three months elapsed between his moving back in and his death. (I should say that the Council disputes whether Mr Doyle was in any event still a secure tenant at the time of his death; but that question can be ignored for present purposes.)

8

It is convenient to mention at this stage two changes, or imminent changes, in the relevant law since the date with which we are concerned.

9

First, the Localism Act 2011 inserted, for secure tenancies granted after 1 April 2012, a new section 86A into the 1985 Act. One of the effects of that section was to equate the position of a common law spouse with that of a legal spouse and thus to remove the effect of the twelve-month condition in such a case. (Another was to remove the succession rights of the other family members altogether.) That change did not apply to Wales, where section 87 remains in force even for tenancies granted after 1 April 2012. Section 86A does not apply in the present case because Mr Doyle's tenancy was granted before 1 April 2012.

10

Secondly, the Housing and Planning Act 2016 will, when it is brought into force, amend the 1985 Act further so as to bring the succession provisions for pre-1 April 2012 secure tenancies into line with those for tenancies granted since that date. However it will only do so in cases where the tenant dies after the amendment has come into force (see section 86G, introduced by Schedule 8 of the Act, and in particular sub-section (8)). We were told that changes will also be made to the legislation in Wales, though by a different statutory route.

THE APPELLANT'S CASE IN OUTLINE

11

The Appellant's case is based on articles 8 and 14 of the Convention. Those articles read as follows:

" Article 8: Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14: Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

12

The Appellant contends that there is no material difference, from the point of view of succession to a secure tenancy, between the status of spouses and common law spouses – or, to put it another way, their situations are in the relevant respects analogous. If that is so, the fact that the succession rights of the former are unconditional while those of the latter are subject to the twelve-month condition would prima facie constitute discrimination, contrary to article 14, in an area affected by Convention rights, namely occupation of the home, which falls under article 8. Although the difference in treatment would not involve a breach of article 14 if it could be justified the Appellant says that no justification can be shown in this case.

13

The Appellant's primary case is that in order to avoid that breach of her Convention rights the relevant provisions of the 1985 Act can be construed, in accordance with section 3 of the Human Rights Act 1998, so as to accord her a right to succeed to the tenancy; or that the Council is in any event obliged by section 6 of the 1998 Act to grant her a fresh secure tenancy of the flat. As a fallback she seeks a declaration of incompatibility under section 4.

THE JUDGMENT OF KNOWLES J

14

Knowles J was prepared to assume that the position of spouses and common law spouses was analogous...

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