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.
In The Name Of The Father….
It strikes me that I would be keen to see the tenancy agreements here, being the 1967 “joint tenancy” and the later 1994 tenancy by succession.
It has often been the practice in the “old days” for councils to have granted secure tenancies in one name only and that usually being the husband. So that Mrs B might have argued (even in the absence of the ’67 document) that it was in fact a sole tenancy agreement in the name of her father and that the tenancy so granted to her mother in 1994 was in fact a fresh tenancy and thus allowing one succession to the daughter.
Notwithstanding the court’s finding on the NTQ, might it have been reasonably argued that mother’s moving in to the nursing home was a trial term and her intention was to return to the house?
On this and the daughter’s non-residence with her mother for the required “twelve-months” I am not aware of the facts.
Following on from and endorsing Stephen Gibbs’ comment, surely the mother held the entire joint tenancy and so the death of the father did not result in any transmission of the tenancy. It merely meant that the mother became the sole tenant by survivorship. Also the mother no doubt left her furniture and many of her personal effects in the property, so she did not vacate it and was still in law occupying the property as her residence at her death. The argument that the Council could have served a notice to quit is surely also flawed, as the Council did not do so, so the fact it could have done is irrelevant. If the mother’s signature on the notice to quit was procured by undue influence (which would be easy to prove if the mother as suffering from impaired mental capacity, or if her lawyer was not present at the time) it was invalid. So I hope there will be appeal against this unjust judgment.
Michael
HA 1985 provides for survivorship in a secure tenancy to count as the statutory succession. There also appears to have been no question of the mother’s capacity either, and I would expect that to have been raised if there were a question.
Seems an unremarkable decision. Mrs B did not have long residence in the property, she was significantly under occupying, the council could easily demonstrate huge demand for family housing and she was offered 5 other properties.
Never mind the legal points (sacrilege I know) but I’m struggling to see much of a moral argument in Mrs B’s favour. I encounter “second succession” cases that on the facts have a lot more moral weight to granting a tenancy .
An appeal was heard by the Court of Appeal today. Judgment reserved.
But I understand counsel for the authority was not called on. Which might give some indication of the likely range of results.