Dudley Metropolitan Council v Mailley (2023) EWCA Civ 1246

We first saw this very sad case on first instance in the High Court – our note here. 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 the defence filed. (We should note that Dudley had offered Ms M a tenancy of a smaller property).

Ms Mailey lost at first instance. This was Ms M’s appeal, on the grounds that:

i) The High Court was wrong to find Ms M had no relevant status for Article 14 discrimination purposes.

ii) The High Court ‘erred in law in finding that the appellant and those whose members of the family die at home or who assign to their qualifying successors are not in analogous or relevantly similar situations.’

iii) The High Court was wrong on justification; and

iv) The High Court was wrong to find that even if there was unlawful Art 14 discrimination, it was not permissible to read into section 87(b) Housing Act 1985 in the terms proposed by Ms M.

The Court of Appeal held:

On i) – the issue of capacity was not the same as the issue of disability. Capacity is capable of fluctuation and not a fixed or certain condition. It as not an ‘other status’ for the purposes of Article 14.

Capacity and disability are distinct and different concepts: section 6 of the Equality Act 2010 defines disability by reference to a physical or mental impairment that has a “substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”; capacity relates to a “material time” and may be temporary: see section 2(1) and (2) of the Mental Capacity Act 2005. The reasoning in Jwanczuk relied on by Mr Stark does not apply or meet the factually different situation in this case. Jwanczuk concerned a lifelong disability and inability to work (viewed in retrospect), where the potential for fluctuation in condition, significant change over time, and potential recovery were not realistically present. As Underhill VP explained, the uncertainty regarded as fatal in MOC was the conceptual uncertainty arising from the fact that under the Mental Capacity Act 2005, capacity has to be judged by reference to the capacity to take particular kinds of decision at a particular time; but the claimant’s case in Jwanczuk required the application of the single criterion of whether the disabled person was unable to work at any point in her working life: if she was able to work for some part of the period but not others, that would cause no difficulty because the criterion was binary and she would fall outside the group. The same is not true here.

(…)

Whichever formulation of status is adopted in this case, the question that must be answered is whether the difference in treatment complained of is in fact on the ground of that “other status”. I do not think it was. The reason why the appellant is not entitled to succeed to her mother’s tenancy does not depend on her purported status (whether by reference to capacity or disability or at all). Section 81 HA 1985 requires a secure tenant to occupy the property as their only or principal home. Where that condition is no longer met, their secure tenancy lapses and their tenancy can be terminated by a notice to quit. The further consequence is that the appellant is not and could not be a “qualifying successor” under section 87. The appellant’s inability to succeed was a consequence of the operation of the legislation and not otherwise.

This ground failed. This was enough to dispose of the appeal, but having heard argument on other grounds, the Court of Appeal went on to address them.

On ii) and the comparator for discrimination, Ms M

submits that it is not his case that ceasing to occupy the dwelling house as the departing tenant’s only or principal home is the relevant test. That may happen as a matter of choice. The analogous or relevantly similar situation referred to is that of the qualifying successor and the tenant permanently ceasing to reside there either by death or by reason of ill-health disability, and in the latter case either with capacity to assign or without capacity to assign. He submits that each of these three events are relevantly similar – in each the tenant ceases to occupy permanently and in each there is a qualifying successor – and the judge was wrong to find otherwise. Section 87(b) HA 1985 protects those residing with the tenant for 12 months before the tenant’s death as their only or principal home. Section 91(3) allows a tenant to assign to a qualifying successor when they leave. The impugned measure seeks to protect qualifying successors and its aim cannot be to exclude those who may be long qualified to succeed but whose family member must leave permanently by reason of illness/disability and cannot assign.

In my judgment the situations relied on as comparable by Mr Stark are not so. In each of the proposed comparator cases, the legislative conditions for having and retaining a secure tenancy are met. By contrast, in the appellant’s case they are not met by virtue of Mrs Mailley having left the Property permanently so that the section 81 tenancy condition was no longer fulfilled in the period that followed. The two groups are not in materially similar situations despite Mr Stark’s protestations to the contrary.

The correct comparator is a secure tenant who is forced to leave his or her home permanently for a reason other than illness or disability and does not assign the tenancy before doing so. Such a secure tenant would be treated in precisely the same way as the appellant – there would be no succession because the secure tenancy would have come to an end. I can see that the case might have been better formulated as one based on indirect discrimination, but that was not done, and the question of disparate impact was never explored. This case was run as a direct discrimination case only. I do not consider that the treatment complained of amounts to direct discrimination in this case.

On iii) – justification –

the broad aim in limiting succession (and assignment) rights to qualified successors, is to strike a balance between the interests of different groups: members of the deceased tenant’s family who have lived in the dwelling house as their home and are recognised as having some limited succession rights; those on the housing waiting list recognised as being in need of housing; and the interest of the local authority in allocating its housing stock in a fair, efficient and effective way. Inevitably, the operation of succession and assignment rights has the effect of removing a dwelling house from the pool of housing stock, preventing its allocation to someone with greater housing needs, and that has been held to justify the one succession rule (see Gangera and Simawi for example). It seems to me to follow that it also provides justification for restricting those who qualify as successors and when and how that is done.

(…)

In my judgment certainty is also a justification as the judge found, provided a fair balance has been struck between the administrative convenience of certainty and the discrimination suffered. The legislative scheme as drafted has the legitimate aim of certainty which it achieves by proportionate means. It sets a bright-line rule so that the tenant, the landlord and any potentially qualifying successor know where they stand. Potential injustice (if capacity were regained) and conflicts of interest between tenant and cohabitee (and between cohabitees) are avoided.

I accept that there are some uncertainties inherent in sections 87 and 91(3) HA 1985 as enacted, and there may be cases that raise difficult factual enquiries as the exemplar cases referred to above demonstrate. However, a balance had to be struck between the different interests of tenant, family members, landlord and those in need of social housing so as to allow for some limited security being given to family members while preserving the ability of local authorities to allocate their housing resources on an appropriately fair and effective basis in circumstances where those housing resources are scarce. Parliament struck that balance in the legislative scheme as enacted. Doing so was a matter of policy for the legislature. Choices about welfare systems involve policy decisions on economic and social matters which are pre-eminently matters for national authorities. In R (Turley) v Wandsworth LBC (2017) EWCA Civ 189, (2017) HLR 21 this court held that where a provision relating to succession to secure tenancies had to be justified, there was no difference in principle between access to social housing and access to welfare benefits. For all these reasons, the legislative choice or judgment made by Parliament is to be accorded a wide margin of appreciation.

The justification ground also failed, and, for good measure, the High Court was right to have held that the proposed reading of word into section 87B Housing Act 1985 would indeed go against the intent of the Act, and to hold otherwise would mean the court making the rules on succession, not Parliament.

Appeal dismissed.