Statutory succession to secure tenancies upon death of secure tenant, and unlawful discrimination

06 November 2023

Ryan Anderson considers the decision of Dudley Metropolitan Council v Mailley [2023] EWCA Civ 1246.  The decision considers the key principles for statutory succession and a finding of unlawful discrimination, and highlights the reduction in statutory succession rights and the pertinence of local authority ability to manage social housing stock in order to justify a difference in treatment.

The Court of Appeal rejected the proposal that the child of a tenant who was permanently removed from her home due to ill health, and who lacked the capacity to assign her tenancy to a potential statutory successor, is protected under Article 14 of the ECHR and had been unlawfully discriminated against by being refused a statutory succession.

Background- death of secure tenant, possession proceedings

MM (the appellant) lived with her mother, whose tenancy became a secure tenancy when the Housing Act 1980 came into force.  They both occupied the property as their sole or principal residence until her mother, DM, became a permanent resident in a care home with no prospect of returning to the property.

Upon DM permanently moving to the care home, the local authority brought possession proceedings on the basis that the “tenant condition” (section 81 of the Housing Act 1985) was no longer satisfied because the property was no longer DM’s sole or principal residence. DM passed away around one year later.

The appellant’s defence to the possession proceedings:

  • If her mother had not had to move out permanently due to ill health, she (the appellant)  would have – upon her mother’s death – been entitled to succeed her; and
  • She could also have been assigned the secure tenancy by her mother (under section 91(3) Housing Act 1985), if her mother had not lost her capacity to do so.
The law

It is important to note this decision relates to a tenancy granted before 1 April 2012. The relevant test is that at section 87 of the Housing Act 1985: a person is qualified to succeed a secure tenant if they occupied the dwelling house as their only or principal home at the time of the tenant’s death and are either:

(a)  the tenant’s spouse or civil partner; or

(b)  another member of the tenant’s family (as defined by section 113 Housing Act 1985) and resided with the tenant throughout the 12-month period ending with the tenant’s death (unless the tenant was themselves a successor).

For tenancies granted after 1 April 2012, the right is narrower: the right to succeed applies to spouses and civil partners only (section 86A Housing Act 1985).

The High Court decision

The appellant’s defence was rejected by Cotter J in the High Court.

As the appellant said she had been unlawfully discriminated against because of her status, contrary to Article 14 ECHR, the relevant questions were:

  1. Does the treatment complained of fall within the ambit of one of the Convention rights (this was agreed – it potentially fell within Article 8);
  2. Is that treatment on the ground of some “status”;
  3. Is the situation of the claimant analogous to that of some other person who has been treated differently; and
  4. Is the difference justified as a proportionate means of achieving a legitimate aim?

Cotter J said:

  1. The appellant’s “status” could not succeed as it relied on capacity as an essential defining characteristic. Capacity is not a solid foundation for status as it may change, and may do so quickly.
  2. The appellant’s situation was not analogous to that of a potential successor of a tenant who dies at home, or who is permanently removed from home due to ill health but retains capacity. That is because, in the appellant’s situation, the fact that DM lost capacity made the situation uncertain and possibility temporary, because capacity could be regained in the future.
  3. In any event, the local authority was justified in its actions: it pursued, by proportionate means, the legitimate aims of (a) avoiding uncertainty an conflicts of interest by means of a bright-line rule so that everyone knows where they stand, and (b) incrementally reducing succession rights to assist with managing their scarce social housing stock.
  4. Further, even if any adverse different treatment was not justified, the wording that the appellant sought to read into section 87(b) Housing Act 1985 would cross a constitutional boundary.
The Court of Appeal’s decision

The Court of Appeal agreed with the High Court, holding inter alia that:

  1. The uncertain nature of capacity, if able to form the foundation for “status”, would lead to real problems if the original tenant regained capacity and wished to return as a secure tenant. This could lead to direct conflict with the relative who wishes to succeed.
  2. The alleged difference in treatment was not because of that status. It was because, by operation of section 81 Housing Act 1985 (the tenancy condition), the tenancy was no longer secure. As the allegation was one of direct discrimination (rather than indirect) it therefore could not succeed.
  3. The correct “comparator”, when considering analogous situation, was a secure tenant forced to leave home permanently for a reason other than illness/disability and who does not assign the tenancy before doing so. However, such a comparator would have been treated exactly the same as the appellant – their secure tenancy would have ended due to section 81.
  4. A justification defence does not mean considering whether the existing law is unfair and could be made fairer, or is the fairest means of pursuing the legitimate aim. It is whether the existing law pursues that aim in a proportionate manner.
  5. The High Court was right to take into account that there has been a progressive reduction in statutory succession rights, when considering justification.
  6. The words the appellant sought to read into section 87(b) would create a new right of succession. Such a fundamental change is for Parliament, not the courts.

A limitation to the decision, noted by the Court of Appeal, was that the allegation was of direct discrimination. Had it been brought as indirect discrimination, the question of disparate impact could have been explored.