Wandsworth London Borough Council v Michalak

JurisdictionEngland & Wales
JudgeLord Justice Brooke,Lord Justice Mance,Mr Justice Park
Judgment Date06 March 2002
Neutral Citation[2002] EWCA Civ 271
Docket NumberCase No: B2/2001/1450 CCRTF
CourtCourt of Appeal (Civil Division)
Date06 March 2002

[2002] EWCA Civ 271




Judge Winstanley

Royal Courts of Justice


London, WC2A 2LL


Lord Justice Brooke

Lord Justice Mance and

Mr Justice Park

Case No: B2/2001/1450 CCRTF

Jan Michalak
Appellant/ Defendant
London Borough of Wandsworth

Jan Luba QC and Zia Nabi (instructed by HCL Hanne & Co) for the Appellant

Anthony Scrivener QC and Jonathan Easton (instructed by DMH) for the Respondent

John Howell QC & Jonathan Karas (instructed by the Treasury Solicitor) for the Secretary of State for Transport, Local Government and the Regions.


Judgment of Brooke LJ

Part No


1. Introduction


2. The Facts


3. The Housing Act defence


4. The Human Rights Act defences


5. ECHR Article 8


6. ECHR Article 14


(i) Do the facts fall within the ambit of one or more of the substantive Convention provisions?


(ii) Was there different treatment as respects that right between the complainant on the one hand and the chosen comparators on the other?


(iii) Were the chosen comparators in an analogous situation to the complainant's situation?


(iv) If so, did the difference in treatment have an objective and reasonable justification?


7. The possession order


Judgment of Mance LJ


Judgment of Park J


Lord Justice Brooke



This is an appeal by the defendant Jan Michalak against an order made by Judge Winstanley at the Wandsworth County Court on 15th June 2001 whereby he was directed to give up possession of 182 Sheepcote Lane, Battersea to the claimants, the London Borough of Wandsworth ("the council"), on or before 13th July 2001. The judge adjourned the council's money claim for damages for use and occupation for trial before the district judge, and we are not concerned with that aspect of the claim.


The facts


The premises in question are a two-bedroomed flat which was let by the council to Mr Jan Lul on 17th June 1985, and which remained Mr Lul's home under a secure tenancy until his death on 14th November 1998. Mr Michalak came, at Mr Lul's invitation, to occupy the second bedroom in the flat about six weeks after the tenancy started, and he has lived there ever since. He claims to be entitled to stay there, notwithstanding the council's desire to obtain possession. The appeal raises issues under Section 87 and 113 of the Housing Act 1985 ("the 1985 Act") and Articles 8 and 14 of the European Convention on Human Rights ("ECHR").


There is no challenge to the judge's findings of primary fact. Both Mr Lul and the defendant were born in Poland, the former in 1914, the latter in 1953. Mr Lul had fought in the Second World War, and then worked in a factory in England until he retired in 1978 at the age of 64. He then made his home as a lodger with Mrs Coffey, who gave evidence at the trial, at an address in Allfarthing Lane, Wandsworth, until he moved to the flat in Sheepcote Lane. One of the reasons why Mrs Coffey had been anxious for Mr Lul to move from her house in 1985 was that she was then pregnant with her second child. When she required him to leave, the council rehoused him as a homeless person who was not intentionally homeless.


The defendant came to England in 1981. His grandfather had a sister whose son had married Mr Lul's sister. In English parlance, Mr Lul was the brother-in-law of the defendant's first cousin once removed. However that may be, when the defendant came to England, he got in touch with Mr Lul as a fairly distant family connection who was willing to be kind to a previously unknown relation, and he was housed with Mr Lul under Mrs Coffey's roof for about three months in 1981 before he went off to live with friends. He later rented premises in Fulham where he lived until Mr Lul invited him to use the other bedroom in his new flat in Sheepcote Lane. In the meantime he had visited Mr Lul from time to time. Mr Lul spoke English, whereas the defendant's English was very poor. There was no other member of the defendant's family living in England, and Mr Lul had only one other distant relative living here.


The defendant moved to Sheepcote Lane on the basis that he would contribute £25 per week towards Mr Lul's rent when he was working. In the event he only made these payments during an 11 month period in 1986–7 because for the rest of the time he was out of work. He did not draw state benefits of any kind, and the judge found that he must have subsisted on Mr Lul's good grace towards him. He used to address Mr Lul by a Polish word which might be translated "uncle", which the judge took to be an affectionate form of address by a younger member of a family to an older member of the family who was distantly related to him.


The judge found that while he was living in Sheepcote Lane, the defendant cooked some meals for Mr Lul, and did some of his shopping, and he also gave him a helping hand with his washing, particularly towards the end of his life when he was incontinent from time to time. The judge said that the defendant was helping to a degree to care for Mr Lul, but he was not a full time carer. This was in no sense a loving or a caring relationship. The defendant merely had a relationship of respect for the older man, and he was willing to help somebody who had helped him and had shown him kindness when he first came to England.


The judge found that the two men led their own lives. The defendant had his own social life, which the judge found to be illustrated by the fact that on the night Mr Lul died the defendant was out at the cinema with a lady friend, with whom he subsequently spent the night.


The Housing Act defence


After Mr Lul died, the council served a notice to quit on his personal representatives, and when this notice expired, they sought possession of the premises from Mr Michalak on the basis that he had no legal right to remain there after Mr Lul's secure tenancy expired.


Any statutory provisions apart, the council was clearly correct. At common law Mr Michalak was a trespasser. He has sought to overcome the common law position, however, by relying on statutory defences, both under the 1985 Act and under the Human Rights Act. His primary defence in this context was that he was a member of Mr Lul's family within the meaning of section 87 of the 1985 Act and that he had resided with Mr Lul at the premises for a period far longer than the 12 month period mentioned in section 87(b). He therefore maintained that he was qualified to succeed Mr Lul under a secure tenancy, as that section provides.


The difficulty with this argument, as Mr Luba QC, who appeared for Mr Michalak recognised, is that both sections 87 and 113 fall within Part IV of the 1985 Act, and section 113(l) provides that:

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

(a) he is the spouse of that person, or he and that person live together as husband and wife, or

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

Section 113(2) makes provision ancillary to section 113(1)(b) for relationships by marriage (rather than blood) and by half-blood (rather than whole blood), and for stepchildren and illegitimate children, none of which are relevant in the present context.


Mr Luba was unable to find any reported case since 1980 (when an equivalent provision was first introduced in section 50(3) of the Housing Act 1980) when it had even been argued that the list now contained in section 113(1) of the 1985 Act was not an exhaustive list. He showed us, indeed, that in Harrogate Borough Council v Simpson (1985) 17 HLR 205 Watkins LJ clearly treated section 50(3) as a definition section (see pp 207 and 208). This approach did not, however, form part of the basis on which this court decided that case, and Mr Luba ingeniously sought to argue, by reference to other provisions of the 1985 Act, that if the draftsman had meant the list to be exhaustive he should have used the word "means" (as in sections 113 or 116) and that the existence of the list should not be taken to exclude other members of the former tenant's family residing with him on his death, such as Mr Michalak, if they can properly be so described. Mr Luba sought to get round the difficulty posed by section 117 of the Act, which is entitled "Index of defined expressions" and contains a signpost to section 114 for the expression "family (member of)", by fastening on the opening words of that section:

"The following Table shows provisions defining or otherwise explaining expressions used in this Part …"

Mr Luba said that the words in section 113 did not define the expression "member of another's family": they merely explained it.


This appears to me to be a distinction without a difference. In my judgment the editors of the Housing Law Reports were correct when in their introductory note to Harrogate Borough Council v Simpson (1985) 17 HLR 205 they wrote, in relation to section 50(3) of the Housing Act 1980:

"In defining the term ['member of family'] statutorily, Parliament clearly sought to distance itself from the case law which had grown up around the term under the Rent Acts: see now Rent Act 1977 s2 and Sched 1, Part I. In that Act, the same term 'member of family' is used, but not defined, and reliance is placed on earlier judicial definitions."


There is a useful list of leading cases concerned with the Rent Act meaning of the phrase in Halsbury's Statutes, 4th Edition, 1997 Reissue, Vol 23 at pp 963–4....

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