The recent case of Birmingham CC v Beech contains a wealth of legal issues but sadly for the Defendant, none of them was decided in her favour. Mrs Beech’s parents had been joint tenants of a 3 bedroom property at 31 Tilshead Close, Birmingham since 1967. Mrs B’s father passed away in 1994 and her mother succeeded to the tenancy. Mrs B moved in to the property with her new partner in 2007 in order to provide care for her mother. Between 2008 and 2009, five offers of accommodation were made to Mrs B and these were refused for a variety of reasons. Mrs B’s request for her name to be added to the tenancy for Tilshead Close was also refused.
In December 2009, Mrs B’s mother moved into a care home and in the course of a visit from a housing officer on 19/2/2010, her mother signed a notice to quit, effective from 22/3/10. Mrs B was informed of this and she made a formal application for a secure tenancy of the property in her name. Mrs B’s mother passed away on 9/6/10. Notwithstanding the sentimental attachment to the property,the manner in which they had looked after it and the couple’s health problems, the application was refused, principally because the property was under-occupied. Possession proceedings were brought against Mrs B in August 2011 and after the claim was transferred from Birmingham CC to the High Court, it was heard by Keith J on 28-30/11/2012.
There were three limbs to Mrs B’s defence:
Validity of NTQ
Mrs B argued firstly that her mother’s signature was procured under undue influence. The judge found that at the meeting on 19/2/2010, the mother was made aware that she had to give up the property, even though her daughter was living there with her partner, because she was now residing in a care home. Although the consequences of not signing the NTQ were not spelt out, nor was it explained to the mother that she could reconsider during the ‘cooling-off- period, it was clear from the council’s evidence that they would have served their own NTQ on Mrs B even if her mother had decided not to sign. This would not have made any material difference to Mrs B at that time because her request for a secure tenancy was under consideration with the housing panel.
As far as the two categories of undue influence identified in RBS v Etridge (No 2) (improper pressure or coercion/abuse of position of trust and confidence) were concerned, they boiled down to the same problem for Mrs B. The fact that the council retained the option of serving its own NTQ on Mrs B in the event her mother refused to sign (which at best would have given Mrs B a few extra weeks) demonstrated that there could have been no coercion or abuse of a position of trust (even though the judge found that the mother did not place her trust and confidence in the housing officer). In other words, Mrs B’s mother did nothing which no well-advised person would have done.
Public Law Challenge
This ground was also dismissed. Firstly, Mrs B contended that she was not informed that in accordance with the council’s policy, a request for her name to be added to the tenancy agreement had to come from her mother. The judge preferred the council’s evidence that Mrs B was informed of this condition but that she had not acted on it. Secondly, it was alleged that not informing the mother of the consequences of not signing the NTQ made the proceedings unlawful. The judge reiterated the point that not signing the NTQ would simply have led to service of a NTQ on Mrs B. Thirdly, on the challenge to the panel decision not to grant Mrs B a new tenancy, the judge found that the degree of under-occupation and the competing demands from others on the housing list were overriding considerations.
Articles 8 and 14 ECHR
The judge found that there was nothing exceptional in the individual circumstances of this couple to bring their case over the seriously arguable threshold. He compared their circumstances to those of the household in Thurrock v West, where the ECHR challenge was likewise dismissed. To refuse to make an order for possession here would be tantamount to giving them a right to possession which they did not otherwise enjoy.
The argument that the ‘second succession’ rule was incompatible with Articles 8 and 14 ECHR did not get very far either. The s.87 conditions were not fulfilled because Mrs B was not residing with her mother for the 12 month period up to the time of her death and the tenancy ceased to be secure in any event when her mother moved out. The judge could not therefore consider what might have been an ‘interesting argument.’
A possession order in 28 days was made against Mrs B.
Comment: despite the failure of Mrs B’s defence, a number of interesting legal points arise. The mother’s relationship with the housing officer might not have given rise to a relationship of trust and confidence in this case but I doubt that the same could be said of all housing officer-tenant relationships. After all, tenants do not attend possession hearings on a regular basis on the strength of what their housing officer told them would happen (or not happen) at the hearing. An undue influence point might therefore be useful, for example, in a Hammersmith v Monk scenario. On the Articles 8/14 point, Mrs B argued that the second succession rule was discriminatory against children of married tenants because the rule would not apply to the children of single parents. I’m sure that a more suitable case will come along soon to develop this ‘interesting’ point.