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Just another brick in the (Sheffield CC v) Wall

By J

Sheffield CC v Wall (by her personal representatives), Wall, Ingham, Butler [2010] EWCA Civ 922, is, on any view, an unusual case. The Court of Appeal didn’t, however, help matters.

Imagine, if you will, that, in 1967, Mr Steven Wall was placed with Mrs June Wall, who acted as his foster parent, by Sheffield CC. Whilst Steven was never adopted, he was clearly treated as the son of Mrs Wall and there was no-one else that could be said to have fulfilled that role.

In October 1986, Sheffield CC granted Mrs Wall a secure tenancy of a two-bed house, to be occupied by her and her “son”, Steven. He duly qualified as a solicitor and, after a short spell living and working in London, he returned to Sheffield in June 2002, to live with his mother. Sadly, 51 weeks after moving back home, his mother died of cancer. During those 51 weeks, Steven had cared for his mother. The council served NTQ and issued possession proceedings, contending that there was no-one entitled to succeed to the tenancy. Steven resisted the proceedings, arguing that he had succeeded.

In the county court, two issues arose. Firstly, was Steven a “member of the family” for the purposes of ss.87 and 113, Housing Act 1985. Perhaps surprisingly, foster children are not expressly within the scope of these sections. However, the Recorder dealt with this by finding that Sheffield were now estopped from arguing that Mr Wall was not a member of the family.

The second issue was more common – had Mr Wall resided with his mother for the period of 12 months ending with her death? The Recorder found against Mr Wall on this point.

Mr Wall successfully appealed to the Court of Appeal ([2006] EWCA Civ 495), which didn’t deal with the first issue, but criticised the approach taken by the Recorder to the second issue. The case was remitted for re-hearing.

However, Mr Wall hadn’t sought a stay of execution pending the appeal and, in early 2005 (prior to the appeal), the possession order was executed. The property was then re-let under a new secure tenancy to Mr & Mrs Ingham.

At the restored hearing, Sheffield accepted that Mr Wall had resided at the property for the relevant period. Their claim for possession was dismissed. That, however, was of very limited use to Mr Wall, since Mr & Mrs Ingham were now living at the property. He joined them and sought an order for possession as against them. That claim was also dismissed.

And, so, the mess ended up in the Court of Appeal. Again.

The first matter to consider was the potential succession rights of Mr Wall, or, more shortly, was he a “member of the family” for the purposes of ss.87 and 113, 1985 Act?

The Court was satisfied that, under the Rent Acts, he would have been. Brock v Wollams [1949] 2 KB 388 and, more recently, Fitzpatrick v Stirling HA Ltd [2001] 1 AC 27 were clear authority for the generous approach to be taken when construing that phrase. Context was, however, everything. In the context of the 1985 Act – unlike the Rent Acts – the statute itself defined the scope of “member of the family”. That definition was in s.113, 185 Act and, as already noted, does not refer to foster children. Section 113 was a complete code and Mr Wall did not come within it.

His only recourse was to rely on Art. 8, Sch. 1, Human Rights Act 1998. His Art. 8 rights were clearly “engaged”, but Parliament was clearly entitled to come to the view that only certain persons should be entitled to succeed, such that any violation of Art. 8(1) was justified under Art. 8(2).

So, the appeal failed at this stage. Mr Wall was not – and had never been – entitled to succeed to the tenancy. You may think that this is a rather harsh result, rather unpersuasively reasoned and one that – if right – really should have been dealt with in the 2006 appeal. That, however, is entirely a matter for you.

The court could, and perhaps, should, have stopped there. However, it went on to consider – without deciding – what would have happened if Mr Wall has succeeded.

Firstly, it was clear that the tenancy of his mother would have vested in him immediately. Secondly, the previously decided cases (Brent v Botu [2001] HLR 14; Hillgate House Ltd v Expert Clothing Services [1987] 1 EGLR 65) did not purport to set down any general rule, the answer had to come from the 1985 Act itself; in that regard, when Mr & Mrs Ingram went into possession, it appears that Mr Wall would have ceased to satisfy the tenant condition (s.81, 1985 Act), such that he lost his security of tenure and would be liable to eviction at the suit of Mr & Mrs Ingram, after service of an NTQ. A suggestion to the contrary in Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 was per incuriam.

However, the point did not arise in the present case and was not decided. A further point on costs was also dealt with, but need not concern us here.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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