Married couples and civil partners vs. couples living together as husband and wife – succession rights under the Housing Act 1985

31 March 2017

Turley v (1) Wandsworth LBC and (2) Secretary of State for Communities and Local Government was another challenge to the succession regime under the Housing Act 1985 albeit following amendments made by the Localism Act 2011 (which did not apply to this case) and future amendments, should they be brought into force, under the Housing and Planning Act 2016.

The case concerned the difference in treatment between succession rights of those who are spouses or civil partners of a secure tenant and those who reside with the secure tenant as if husband or wife but are not formally spouses or civil partners. The relevant statutory provisions in this case provide that for a person who is living with a secure tenant as if husband or wife to succeed to the tenancy then they also must be living with the tenant for 12 months prior to his death.

Management and allocation of housing

The general management, regulation and control of housing stock by a local authority is vested in and to be exercised by that authority by virtue of s.21, Housing Act 1985. Part 6, Housing Act 1996 makes provision for the allocation of housing stock. The management and allocation of housing stock, however, is subject to certain statutory constraints. One of those constraints is the ability of an authority to let properties on certain tenancies. For the purposes of this note, a local authority may dispose of land for the provision of housing by letting under a secure tenancy. Selection of persons to be secure tenants must be in accordance with Part 6 Housing Act 1996 requiring persons to be eligible and the allocation to be in accordance with the authority’s own scheme.

Part 4, Housing Act 1985 creates a scheme restricting a landlord’s right to end a “secure tenancy”. Section 79, of the 1985 Act defines a secure tenancy as a tenancy under which a dwelling house is let as a separate dwelling when the “landlord condition” and “tenant condition” are satisfied. Section 79 has effect subject the provisions relating to tenancies that cease to be secure after the death of a tenant (s.79(2)).

The 1985 Act also contains a detailed code under which members of a secure tenant’s family may succeed to the secure tenancy. In respect of a secure tenancy granted before 1 April 2012, succession to the tenancy on the death of the tenant is governed by Housing Act 1985 sections 87–90. Section 87, provides that a member of the secure tenant’s family is qualified to succeed to the tenancy if the property is occupied as the only or principal home at the time the tenant died and for the preceding 12 months unless, in either case, the tenant was himself a successor. A person is a member of another's family if, inter alia, she and that person lived together as husband and wife or as if they were civil partners (section 113).

Parliament’s decision under the 1985 Act to limit the persons and the occasions for automatic succession to a secure tenancy has been discussed in previous cases and it has been held, amongst other things, that “this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms”: Wandsworth LBC v Michalak [2002] EWCA Civ 271; [2003] 1 W.L.R. 617 at [41]. See also, R. (on the application of Gangera) v Hounslow LBC [2003] EWHC 794; [2003] H.L.R. 68, where Moses L.J. elaborated on the policy underlying the restrictions on statutory succession at [22]-[23].

On 1 April 2012, the Localism Act 2011 s.160, amended ss.87 – 90 of the 1985 Act as the provisions apply to England, and inserted a new s.86A. One of the changes was to remove the requirement of 12 months’ occupation with the tenant prior to his death in respect of a person who was living with the tenant as the tenant's wife or husband or civil partner. Such persons under the amendments are to be treated as if a spouse or civil partner rather than being part of a “family members” definition. Family members lost their rights to succession altogether. The amendments do not apply to tenancies granted before 1 April 2012 (s.86A(6) of the 1985 Act and Localism Act (Commencement No.4 and Transitional, Transitory and Saving Provisions) Order 2012 (SI 2012/628) art.6).

European Convention of Human Rights (“the Convention”)

Under Article 8 of the convention everyone has the right to respect for, inter alia, his private and family life and his home. The right is a qualified right and there shall be no interference with it by a public authority except such as is in accordance with the law and is necessary in a democratic society. It is well-established that Article 8 defences can be raised as a defence to possession claims where a court is asked to make an order for possession of a person’s home at the suit of a public authority (see e.g. Manchester City Council v Pinnock [2010] 3 WLR 1441 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 WLR 287).

Article 14 of the Convention contains a prohibition on 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”.

In Michalak – which was concerned with Articles 8 and 14 – the Court held at [46] that the appropriate justification under Article 8(2) can be derived from a statutory scheme and need not always be demonstrated on a case-by-case basis.

Factual Background

In 1995, the Appellant, Susan Turley, moved into a property with her long-term partner, Roger Doyle, and their four children. Wandsworth LBC (“the authority”) was the landlord of the property and Mr Doyle was the sole secure tenant. In 2010, the Appellant’s relationship with Mr Doyle broke down and he left the property although he did not terminate his tenancy. In January 2012, Mr Doyle returned to live at the property with the Appellant and two of their children. Mr Doyle was seriously ill at this stage and passed away on 17 March 2012.

The authority required the Appellant give up possession of the property as, although she was living with Mr Doyle as if husband and wife, she had not been living with him for the requisite 12 months under section 87, 1985 Act.

The Appellant issued a claim for judicial review challenging the decision of the authority that she did not qualify to succeed to the tenancy. The case included a claim for a declaration of incompatibility. Knowles J dismissing the claim held - being prepared to assume that the position of spouses and those living together as husband and wife were analogous - that the 12-month condition was prima facie discriminatory but that the discrimination could be justified.

Court of Appeal

The Court dismissed the appeal. It was plainly a legitimate aim to limit the succession rights of family members to those whose relationship with a secure tenant is one with a degree of permanence. People who are married or civil partners have relationships that are inherently permanent in character and, therefore, it was also a legitimate aim to treat the requirement as sufficiently satisfied in such cases.

The Court really saw the questions before it as whether the 12-month prerequisite was manifestly without reasonable foundation as a criterion for demonstrating the necessary degree of permanence and consistency. The Court held it was not manifestly without reasonable foundation.

The changes made by the Localism Act 2011 did not render the succession regime as it still applies to tenancy granted prior to 1 April 2012 unjustifiable. Neither did any future amendments to the 1985 Act (yet to be brought into force) by the Housing and Planning Act 2016 (see below).

The Court noted that it was important to appreciate that local authorities are not precluded from granting a tenancy to someone who fails to meet the requirements under the statutory regime should there be particular reasons for doing so. In fact, in this case, the authority had offered the Appellant a smaller property in exchange for her current home which she rejected. The court commented that the authority could not be blamed for applying the law in circumstances where social housing is in such short supply.

Going Forward

It is important to note, as indeed the Court had to as it formed part of the legal arguments in the case, that the Housing and Planning Act 2016 will, when brought into force, amend the Housing Act 1985 further so as to bring the succession provisions in relation to tenancies granted prior to 2012 into line with those for tenancies granted since that day (see section 120 and schedule 8, Housing and Planning Act 2016). The amendments will only bite, however, in cases where the tenant dies after the amendment comes into force (see schedule 8, para.3, Housing and Planning Act 2016). The changes will amend the provisions in both in England and Wales although in relation to the latter by a different statutory route (see judgment in Turley at [10]).

The judgment can be found here.