In R (Turley) v LB Wandsworth , the Claimant was the partner of the late Mr Doyle, who was the secure tenant of a property at Battersea Park Rd, London, SW8 from 1995 until his death on 17/3/2012. Mr D and Ms T had 4 children together and they lived at the property throughout, apart from a critically important period of separation between December 2010 and January 2012.
Ms T applied to succeed to the secure tenancy but the council decided that because she had not resided at the property for the 12 months immediately preceding Mr D’s death, she did not qualify to succeed. Ms T brought judicial review proceedings against that decision.
There were ancillary issues in the claim concerning delay and the tenancy status of the late Mr D but the central issue was whether the 12 month requirement interfered with Ms T’s rights under Articles 8 and 14 of the ECHR. The tenancy pre-dated the changes to the 1985 Housing Act brought in by the Localism Act 2011 on 1/4/2012, which meant that because Ms T and Mr D were an unmarried couple, s.87(b) applied to Ms T’s application. Ms T could not therefore benefit from the new s.86A(5)(a), which extends the right of spouses to unmarried couples so that the additional 12 month requirement does not apply.*
Ms T argued that co-habitation was such a well-established practice in modern society that it would be undemocratic to deny unmarried individuals the same benefits that married individuals enjoy. The High Court’s view, however, was that the 12 month condition was directed to satisfying the Authority that the relationship was comparable to that of a married couple. The condition served a legitimate aim and the fact that s.86A(5) extended rights to unmarried couples did not alter the position that both versions of the legislation were within the State’s margin of appreciation and that any interference with Arts 8 and 14 was justified. The fact that the legislation did not have retrospective effect was a matter for Parliament and it was not appropriate for the Court to intervene. Furthermore, it was not irrational or perverse of the local authority to apply the relevant law to Ms T’s application.
The claim was therefore dismissed.
Comment
It was, I think, always going to be an uphill struggle to persuade the High Court to make a declaration of incompatibility in this case. I understand that the Claimant is seeking to appeal the decision so it will be interesting to see what view the Court of Appeal takes of the legislation’s compatibility with the Convention. Although States do enjoy a wide margin of appreciation in complying with Art 14, ‘regard’ must still be had to changes to the legal and social consensus (Tekeli v Turkey). The question for an appeal would I suppose be whether the judge had ‘sufficient’ regard to the changed consensus. We will have to see how this pans out.
*except for Welsh tenancies
I can’t help feeling that the fact that they lived together for at least fifteen years is indicative of a relationship which is comparable to marriage – which sort of renders the 12 month condition superfluous.
My first marriage lasted less than seven years. My second has lasted nearly five so far (although I believe we have many happy years together to look forward to). So it seems harsh and irrational of the state to treat somebody who has had a more enduring relationship than any of mine as if their relationship was somehow less valid/serious/important/worthy (I’m not really sure what the reasoning is).
Certainly Parliament has a wide margin of appreciation, but should it really extend to treating people’s relationships differently depending on when their tenancy started? It seems a bit arbitrary to me. Does the decision not to apply the legislation retrospectively achieve a legitimate aim? I don’t think it does (which I suppose is a bit tautologous – given that I’ve already said I think it’s arbitrary).
That depends on whether you treat the separation either on the one hand as ending the relationship, and the parties subsequently starting a new one, or on the other hand as a blip in a longer relationship. The judge quoted Baroness Hale in Ghaidan:
“Working out whether a particular couple are or were in such a relationship is not always easy. It is a matter of judgment in which several facts are taken into account. … What matters most is the essential quality of the relationship, its marriage-like intimacy, stability, and social and financial inter-dependence”
In terms of justification, it would have been the stability that was the issue here.
I think you miss the point, the stability of this particular couple was irrelevant for the justification of the 12 month clause.
Four children and fifteen years together seems to me to be tantamount to a relationship.