Dudley Metropolitan Borough Council v Mailley  EWHC 2328 (QB)
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King’s Bench Division
Dudley Metropolitan Borough Council v Mailley
2022 March 29, 31; April 1; June 7; Sept 14
Housing— Secure tenancy— Death of tenant— Defendant’s mother taken into care home suffering from ill health and dementia— Local authority giving notice terminating mother’s secure tenancy on basis of cessation of occupation as only or principal residence— Local authority seeking possession of property after mother’s death on basis defendant having no entitlement to succeed to tenancy— Whether legislation unlawfully discriminating against defendant when compared to family members of tenants who died at home— Whether defendant having relevant status for purposes of discrimination claim— Whether legislation to be read as conferring right of succession on family members of tenants removed from their home by reason of ill health and unable to assign tenancy due to lack of capacity— Housing Act 1985 (c 68), ss 81, 87 — Human Rights Act 1998 (c 42), ss 3, Sch 1, Pt I, arts 8, 14
The defendant’s mother held a secure tenancy of a three-bedroom property let to her by the claimant local authority. That property had for many years been the defendant’s only or principal home and, after her mother developed numerous health problems including dementia, the defendant became her full-time carer. In 2016 the mother was taken into a care home and, although this was initially intended as respite care, following an assessment by the nursing home and a social worker it was decided that she would have to remain there on a permanent basis. The local authority then served notice to quit on the mother, terminating the secure tenancy on the basis that she had ceased to occupy the property as her only or principal residence and thus no longer met the “tenant condition” in section 81 of the Housing Act 1985. Thereafter, the authority brought a claim for possession against the defendant on the basis that she remained in the property as a trespasser, not being entitled to succeed to the tenancy as she would have been able to do, pursuant to section 87 of the Housing Act 1985, had her mother died at home before it became apparent that she had no realistic prospect of returning there. The defendant resisted the claim on various grounds including unlawful discrimination on the grounds of a relevant “status” contrary to article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, read with article 8. She contended that there was no justification for her differential treatment when compared with a qualifying successor whose parent had died at home and that section 87 ought to be read down, pursuant to section 3 of the Human Rights Act 1998, so as to include within those entitled to succeed to a secure tenancy the family members of tenants who had been removed from their home by reason of ill health and who, due to mental incapacity, could not assign their secure tenancies under section 91(3) of the 1985 Act.
On the claim—
Held, claim allowed. Even assuming that “status” for the purposes of article 14 of the Human Rights Convention could be identifiable solely through the circumstances of others, it was still necessary to identify a characteristic which had to be something more than being identified through the discrimination. Moreover, an individual’s own capacity was not a sufficient status for the purposes of article 14 as status required a characteristic which had the quality of reasonable certainty, in particular when considering discrimination which concerned an ability to make a permanent change such as assigning a tenancy, whereas conditions affecting capacity could have varying impact on the functioning of the mind or brain so that mental capacity could change, and be lost or gained, over the short and long term. By contrast with death, which was a certainty both in terms of inevitability and the time when it occurred, establishing capacity at the material time might be down to a chance occurrence or manipulation by a relative of the time of assessment. For those reasons, identification through the incapacity of a third party could not be sufficiently certain to provide status for an article 14 claim. Accordingly, while it was not disputed that article 8 of the Human Rights Convention was engaged in the present case, the claim failed on the basis that the defendant lacked a relevant status for article 14 purposes. There being no available defence to the possession claim, a possession order would be made accordingly (paras 172, 183–186, 202).
R (A) v Criminal Injuries Compensation AuthorityB, SC(E) and MOC v Secretary of State for Work and Pensions  PTSR 576, CA applied.
Per curiam. Even if the defendant had a relevant status, her article 14 defence would still fail because her position is not analogous with that of a potential successor of a tenant who died at home, a right to succeed on a certain and permanent occurrence not being analogous to a right to succeed on an uncertain and possibly temporary basis. Moreover, any difference in treatment is justified as section 87 of the 1985 Act achieves, by proportionate means, the legitimate aims of striking a balance between those who are entitled to succeed and those who are not, thus enabling tenants, local authorities and others to identify with certainty those who are entitled and eligible to succeed to a secure tenancy and when, and of ensuring that social housing is fairly and appropriately distributed in line with the incremental reduction in succession rights (paras 187, 188, 196).
Michelle Caney (instructed by Head of Legal Services, Dudley Metropolitan Borough Council, Dudley) for the local authority.
James Stark (instructed by Community Law Partnership, Birmingham) for the defendant.
Sally Dobson, Barrister
Housing Act 1985 (c 68), ss 81, 87
Human Rights Act 1998 (c 42), ss 3, Sch 1, Pt I, arts 8, 14