Succession, Possession and Human Rights: Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB)

The possession case Dudley Metropolitan Borough Council v Mailley [2022] offers useful insights into Section 87 Housing Act 1985 and Article 8 and 14 ECHR, together with the interplay between residential care and succession.

The Background

The property had been let to the Defendant’s mother Dorothy, the tenant, in 1965, and the Defendant had lived there as her only home for over 50 years. The property had three bedrooms.

In 2013, the tenant granted power of attorney to the Defendant. By 2016, the tenant had been admitted to a care home and an assessment concluded that she would need to stay there permanently.

The Council’s case was that the tenant ceased to be a secure tenant as a result, and a Notice to Quit was served. Following the expiry of the Notice in 2016, the Defendant was considered to occupy as a trespasser. She was accepted onto the housing register in 2017, but she refused offers of alternative (one bedroom) accommodation.

The matter came before Mr Justice Cotter.

The Defence had three main arguments:

1. Public Law Challenge

The Defendant argued that the Council was in breach of its own lettings policy, as it had not given the Defendant a review before issuing possession proceedings.

The Judge considered case-specific factors; the Defendant had been offered a review during the proceedings and had failed to make submissions.

The Court highlighted that ‘a public law defence presents a high hurdle’ and ‘on the facts’ the defence did ‘not come close to clearing it’.

This shows a late offer of a review is better then no review.

2. Article 8

The Defendant also argued that an eviction would violate her rights under Article 8 of the European Convention on Human Rights – ‘Everyone has the right to respect for his private and family life, his home and his correspondence’.

The Court noted that the Council were willing to offer suitable alternative accommodation, and had legitimate aims in bringing the claim, given the high demand for three-bedroom properties: the question was one of proportionality, which was highly fact specific. The Defendant counter-argued that eviction would have a grave impact on her mental health, and she emphasised the length of her occupation.

The Judge reaffirmed that ‘the threshold for raising even an arguable case on proportionality is a high one’… and ‘the court should not let sympathy…lower the..threshold’. ‘Long residence may form part of an overall proportionality assessment, in the sense that all the circumstances…may need to be reviewed and their effect considered in the aggregate’.

An eviction was held to be proportionate and justified under Article 8: ‘the process will cause some anxiety. However if [the Defendant] remains in the property it will be significantly underoccupied, she will remain in the grip of grief and she will be at risk of injury due to its cluttered state…if she moves a family will get suitable accommodation, as will the Defendant’.

3. Article 14

Under section 87 of the Housing Act 1985, a person is qualified to succeed under a secure tenancy granted before 1 April 2012 if they occupy the property as their only or principal home at the time of the tenant’s death and, in the case of a family member, they have resided with the tenant throughout the period of 12 months ending with the tenant’s death.

The tenant had been a resident at a care home prior to her death. Due to mental incapacity, she could not assign her tenancy to the Defendant, and the Defendant (as attorney) could not use the power of attorney for her own benefit.

Article 14 of the ECHR states that ‘“the enjoyment of…rights and freedoms…shall be secured without discrimination on any ground such as sex, race…or other status.”

The Defendant argued that, if section 87 could not be read down to include “the members of the family of those removed by reason of their ill health who, due to mental incapacity, cannot assign their secure tenancies”, it would be incompatible with Article 14.

The Judge concluded that ‘the incapacity of a third party cannot be sufficiently certain to provide status for an Article 14 claim’. It was noted that a tenant may lose capacity and later regain it. ‘A right to succeed on a certain and permanent occurrence’ [i.e., death or assignment] ‘is not analogous to a right to succeed on an uncertain and possibly temporary basis’.

The Judge concluded that ‘section [87] as drafted has the legitimate aim of certainty which it achieves by proportionate means…. potential injustice (if capacity were regained) and conflicts of interest between tenant and co-habitee…. are avoided’.

A possession order was made.