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Residential care, succession and human rights incompatibility


Dudley Metropolitan Borough Council v Mailley (2022) EWHC 2328 (QB)

A quick note on this possession claim, which involves a challenge to Section 87 Housing Act 1985 as incompatible with Article 8 and 14 ECHR.

Ms Mailley was defending possession of a Dudley property of which her late mother had been the secure tenant since 1965. Ms Mailley had lived at the property since she was 11 years old and was now 68.

The mother had gone into respite care, and it became clear that she had no prospects of returning home. In addition, the mother at this stage lacked capacity. (Ms M had a lasting power of attorney, but it was common ground that this did not enable her to assign the tenancy to herself). Dudley had served a notice to quit on the mother, given that the tenancy had ceased to be secure) and some time later brought possession proceedings. The mother died after the proceedings had begun and defence filed.

Ms M defended on the following grounds

Public law – the Council had not given Ms M a review of the decision to seek possession, despite this being in the Council’s lettings policy.

Human rights – the decision to evict was not proportionate given Ms M’s circumstances and likely impact on her mental health, so a breach of Article 8.

Incompatibility – “If Section 87 Housing Act 1985 cannot be read down as including within those entitled to succeed the members of the family of those removed from their home by reason of their ill health (and who due to mental incapacity cannot assign their secure tenancies under Section 91(3) Housing Act 1985 to qualifying successors when they are removed from their homes due to ill-health), then Section 87 Housing Act 1985 is incompatible with Article 14 ECHR.”

The public law defence was dismissed. While Ms M had not been offered a review prior to the issue of proceedings, she had been subsequently on two occasions, via her solicitors, and then invited to make submissions to a review that was to be conducted. Ms M or her solicitors had not requested a review or made submissions.

In his submissions Mr Stark was critical of a review which , despite express and repeated invitation, the Defendant took no part in and did not complain about at the time. In public law terms such criticism is very difficult to legitimately maintain.

Article 8 – on the evidence, while there would be an impact on Ms M’s mental health in a move:

The Defendant would have been entitled to remain in the property but lost that entitlement. I feel some sympathy for her in this regard. I also bear in mind this has provided something of a windfall to the Claimant in terms of the availability of a large property as had the Defendant and her mother taken advice in the past it is highly likely that she would have become the tenant. I have weighed into the assessment the length of time the Defendant has lived number 19 and that it has been, and continues to be, the centre of the world.

After consideration of all the competing factors, including the likely benefit for a family and impact on the Defendant I conclude that evection is proportionate and justified under Article 8. The Defendant does not want to move and the process will cause some anxiety. However if she remains in the property it will be significantly underoccupied, she will remain in the grip of grief and she will be at risk of injury due to its cluttered state (as she will reject help as she does not perceive she is a hoarder). If she moves a family will get suitable accommodation, as will the Defendant. She will be safer and there is a reasonable likelihood that a change of accommodation may have beneficial effects on her in the sense that it may enable her to move on from the sense of grief which is now constantly reinforced by being surrounded by memories.

(I should note that there is some sharp criticism of Ms M’s pleaded defence insofar as it addresses the history of interactions with the Council, and the state of Ms M’s mental health. Given Ms M’s evidence in person and the chronology, the court had difficulty in seeing how the defence could have been pleaded on instructions).

While this settled the possession claim (and we should note that two other properties had been offered and the Council said further offers would be made), it left the incompatibility issue.

Section 87 Housing Act 1985 provides that, for pre 1 April 2012 tenancies a family member can succeed to a secure tenancy if they resided with the tenant for the 12 months prior to the tenant’s death.

Ms M argued that if this could not be read down to include “the members of the family of those removed by reason of their ill health who due to mental incapacity cannot assign their secure tenancies under Section 91(3) Housing Act 1985” then it was incompatible by reason of Art 8 and Art 14 – discrimination on other status.

The other status had to be the incapacity of a third party (the tenant). But in MOC (by his litigation friend, MG)-v-Secretary of State [2022] EWCA

an Upper Tribunal Judge found that capacity was unsuitable as a key element in identifying a “status” for Article 14 as too “potentially evanescent”. The Judge also observed that, if lack of capacity was a trigger for a finding that there had been a breach of a claimant’s human rights, there was a risk of people moving in and out of being the subject of a breach on a “virtually daily basis”.

The Court of Appeal had upheld this. The present court agreed. lack of capacity was not a relevant status for Art 14 purposes.

This also meant that a successor to a tenant who died at home, or where the tenant had capacity to assign the tenancy were not analogous positions

As I have set out if, as Mr Stark submits, a family member should succeed as the date the tenant ceased to occupy the dwelling house as their only or principal home by reason of not being able to continue residing there by reason of their ill health and also being incapable of assigning their tenancy, the original tenant would lose their rights even if they subsequently regained capacity. They could therefore be in direct conflict with their family member/s. This could not happen if the tenant died or voluntarily (and with capacity) assigned the tenancy. A right to succeed on a certain and permanent occurrence is not analogous to a right to succeed on an uncertain and possibly temporary basis.

And lastly, on justification, while it was true that the situation at issue was increasingly likely to occur since the 1985 Act, capacity had been dealt with by Parliament subsequently. It was also the case that Parliament had incrementally reduced rather than expanded succession rights in the subsequent period.

In my judgment, section 87 of the 1985 Act achieves the legitimate aim of striking a balance between those who are entitled to succeed and those who are not which enables tenants, local authorities and others to identify with certainty those who are entitled and eligible to succeed to a secure tenancy and when. It also ensures that social housing is fairly and appropriately distributed in line with the incremental reduction in succession rights. It achieves these aims by proportionate means.

Possession given and application for a declaration dismissed.

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. Ralph

    How does this square with the ‘destabilisation’ which eviction would very likely cause the defendent as a consequence of her long association with the property [as per the judgement in Green v Bracknell Forest DC & Anor [2009] EWCA Civ 238 (paras 16 and 37 refer)] and its other finding on under-occupancy v wider housing need/provision amongst RSLs? I see no reference to this authority on either point in the current judgement…

    • Giles Peaker

      This was not a possession on under occupation ground case. Green v Bracknell Forest does not apply. The judgment does consider in detail the impact on the defendant under the Art 8 decision.

  2. Ralph

    But paragraphs 151 to 157 of the judgement cite under-occupancy specifically (paras 152 and 157 refer in particular). I am not suggesting you post-judge matters but, it seems to me, that the case for under-occupancy must have been developed during proceedings by the very existence of these comments (paragraph 137 supports such a presumption) and, consequently, it is not unreasonable to contemplate that Green v Bracknell Forest could form the basis of an appeal? The central issues in both cases seem comparable – destabilisation; length of occupancy versus under-occupation; local housing need? Best regards.

    • Giles Peaker

      Green v Bracknell Forest concerned a possession claim against a secure tenant where the ground was effectively underoccupancy, and the issue was whether it was reasonable to make a possession order. This claim was not against a tenant, was not on the basis of any HA 1985 schedule 2 grounds and the question of whether it was reasonable to make a possession order did not arise, because the court did not have that discretion. Instead, the question was whether it was proportionate to make a possession order in Art 8 terms. That is a different test.

  3. Ralph

    Thank you for the further clarification; I defer to your greater expertise.

  4. David Reid

    In my opinion the two cases are analogous. Whilst I agree they engage different legislation and subsequent tests, the fundamental issue is identical: the reasonableness/proportionality of a RSL seeking possession in circumstances such as these. Although it is not clear from the judgement when and how the issue of under-occupation arose, it did and was given explicit consideration by the judge. In that regard, I suggest he erred then in not considering salient aspects of Green (which, to my knowledge, remains good law) – I think such discretion was available to the court.

    • Giles Peaker

      David – the only similarity is on duration of occupation. The issue of under occupation was raised in the context of proportionality of a possession order under Art 8 (see 152), but that is in the context of the occupier not being a tenant. The court found, as a fact, that moving would cause her ‘significant distress and anxiety’ (para 135) and this was weighed in the balance on proportionality – see 151 to 161. It is hard to see what difference raising Green v Bracknell Forest would have made in any event, because the specific remedy in Green – it not being reasonable to make a possession order against a secure tenant – was not available in this case.

  5. James Stark

    Permission to appeal has been granted .

  6. Matt

    “had the Defendant and her mother taken advice in the past it is highly likely that she would have become the tenant” what kind of advice could/would that have been?


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