Turley v London Borough of Wandsworth & Anor [2017] EWCA Civ 189

Did the pre Localism Act 2011 succession rules for a secure tenancy amount to a breach of article 8 and 14 (private life and non-discrimination), and if so, should a declaration of incompatibility be made if the Housing Act 1985 could not be read compatibly? This was the issue in this appeal.

Ms T was the long term partner of Mr D. They had 4 children together. Mr D was the sole secure tenant of Wandsworth, from 1995. In 2010, there was a breakdown in the relationship and in December 2010, Mr D moved out – without giving up the tenancy. He moved back in January 2012, but was seriously ill and died in March 2012 (prior to the coming into force of the Localism Act 2011)

The then Housing Act 1985 provisions were that succession was to a person occupying the dwelling-house as their only or principal home at the time of the tenant’s death and:

(a) he is the tenant’s spouse or civil partner, or

(b) he is another member of the tenant’s family and has resided with the tenant throughout the period of twelve months ending with the tenant’s death;

Ms T was not a spouse or civil partner as ‘spouse’ connotes ‘legal marriage’. While she was ‘a member of the tenant’s family by HA 1985 s.113(1)(a)

he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners,

she had not resided with the tenant for the 12 months before Mr D’s death, so did not fall under this definition. Wandsworth decided that Ms T had not succeeded to the tenancy.

Ms T’s case was

The Appellant contends that there is no material difference, from the point of view of succession to a secure tenancy, between the status of spouses and common law spouses – or, to put it another way, their situations are in the relevant respects analogous. If that is so, the fact that the succession rights of the former are unconditional while those of the latter are subject to the twelve-month condition would prima facie constitute discrimination, contrary to article 14, in an area affected by Convention rights, namely occupation of the home, which falls under article 8. Although the difference in treatment would not involve a breach of article 14 if it could be justified the Appellant says that no justification can be shown in this case.

The Appellant’s primary case is that in order to avoid that breach of her Convention rights the relevant provisions of the 1985 Act can be construed, in accordance with section 3 of the Human Rights Act 1998, so as to accord her a right to succeed to the tenancy; or that the Council is in any event obliged by section 6 of the 1998 Act to grant her a fresh secure tenancy of the flat. As a fallback she seeks a declaration of incompatibility under section 4.

At first instance, Knowles J had found discrimination in treatment, but that it was justified.

The court of appeal found:

On proportionality, access to social housing had the same wide margin of appreciation as access to benefits, and Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271 was relevant such that this was

a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms.

Secondly, the adoption of the 12 month condition was a fitting test of the substantive condition to be established – the degree of ‘permanency and constancy’ of the relationship had to have some objective measure “and the choice of that measure is thus an essential part of the legislative task.”

On whether the provisions were manifestly without reasonable foundation, even with Ms T’s argument that by 2011, there was clearly no foundation, given the legislative changes in the Localism Act, the court of appeal found that there was a reasonable foundation.

I find it impossible to say that the imposition of the twelve-month condition was manifestly without reasonable foundation as a criterion for demonstrating the necessary degree of permanence and constancy. The fact that a couple have been living together for a minimum period of time is plainly the best available objective demonstration that their relationship has the necessary quality of permanence and constancy. The choice of twelve months as the period cannot be said to be without reasonable foundation: indeed if it were much shorter, its value as a marker of a permanent relationship would be slight. (I note that in the case of the legislation in issue in Swift, to which I refer below, and also in Brewster, the period was in fact two years.) It is true that it is, as Knowles J observed, something of a blunt instrument, but that is very often the case with a bright-line rule. And it is important to appreciate that local authorities are not precluded from granting a tenancy to a person left in occupation by the death of a secure tenant, including a common law spouse who cannot satisfy the twelve-month condition, if for particular reasons they consider it right to do so.

I turn to the relevance of the 2011 and 2016 legislation. Plainly the mere fact that the statutory regime has changed does not mean that the old regime had always been unjustifiable; and Ms Walker’s evidence made clear that the changes made in 2011 did not derive from any acknowledgment that that was the case. A similar argument was rejected by the House of Lords in R v Secretary of State for Work and Pensions, ex p. Hooper [2005] UKHL 29, [2005] 1 WLR 1681, which concerned the non-payment to widowers of widows’ pensions.

The difference in treatment between spouses and common law partners was justified.

Accepting that ‘bright-line rules’ will sometimes have hard effects, as here, the court of appeal dismissed the appeal.