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Succession – the afterlife of the tolerated trespasser


R (Neville) v London Borough of Wandsworth [2009] EWHC 2405 (Admin) [not on Bailii yet]

This was a renewed application for permission for a Judicial Review of Wandsworth’s refusal of a discretionary succession.

Mr Neville had been living with his mother. Mrs Neville had a secure tenancy from Wandsworth from 1999. In April 2004, a suspended possession order was made against Mrs Neville, which stated that she was to give up possession on 12 May 2004, not to be enforced on conditions. Mrs Neville became a tolerated trespasser.

Mrs Neville died in January 2008. In April 2008 Wandsworth wrote to Mr Neville saying that he had no right to succeed but could apply for a discretionary allocation. Mr Neville requested a discretionary application.

Between this first request and the date of Wandsworth’s decision, Wandsworth’s policy on discretionary allocations changed to include a condition that “the deceased had not lost their security of tenure.”

Mr Neville sought judicial review on grounds that:
1. that his mother was still a secure tenant or at any rate still a tenant at the date of her death;
2. that the council was therefore required to consider the claimant’s application for discretionary allocation;
3. that that application fell to be considered under the policy in force at the date of the application, or at the date of the first letter – but in any event under the old policy rather than the new

The date of possession under the April 2004 order was clear. Knowsley HT v White [2008] UKHL 70. applied only to assured tenancies. Austin v Southwark LBC [2009] EWCA Civ 66 provided that the tenancy ended on the date of possession unless restored within the life of the tenant.

It follows that under either version of the policy the claimant had no right to be considered for discretionary allocation, as both versions referred specifically to the death of a tenant.

Even if that was wrong, Mr Neville had failed to provide the information required to decide his application until after the new policy was in force. His application could not be regarded has having been made with a chance of success in the time the old policy was in force.

Further and more importantly “a policy is a policy. It indicates how
decisions are to be made. There is a legitimate expectation only that decisions made will be made under the policy in force at the date of the decision. There is in principle no expectation that a policy will not change and there is no expectation that a decision will be made under any other policy than the one in force at the date of the decision.” This is supported by the decision in Odelola v Secretary of State
for the Home Department
[2009] UKHL 25

The letter in April 2008 was not such as could give rise to a legitimate expectation.

Permission refused.

I do wonder about that finding on the policy in force at the date of the decision being the only relevant one. Mr Neville might have been a bit tardy in getting his information in on time, but what if in a different case, the delay was solely the Council’s and in the interim the policy changed?

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. frednach

    The precise issue regarding succession has become confused and conflated with a pre-ponderence of cases and authorities applying different polices and criteriors depending on the types of tenancies, on otherwise a simple issue. For simplicities sake I would summise as follows:

    1 normal succession to partner or family member who must be living at premises for between 6 to 12 months; discretion to be applied to shorter period see Freeman v Islington 2009 for a set of reasonable criterions

    2 where above does not apply authotities to consider discretionary succession, again applying same criterions applied under above case re issue as to meaning of ‘residence’- intention, purpose, length, community ties, no other place to go to; in short as the Judge said there it was to be for all intents and purposes ‘more than merely staying’.

    3 Authorities to apply secondary succession in appropriate cases see above case in poiints where new tenancy was effectively created due to length of time with the death of the principle tenant

    4 Claimants to seek juducial review upon succession as applied above or otherwise and ask for adverse tenancy where authorities are made aware of death of original tenant but fail to issue possession notice between six and 12 months.

  2. NL


    I don’t think that you can say these are all general principles. What if there is no policy that provides for a discretionary succession?


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