Where a person’s inability to succeed was a consequence of the operation of legislation rather than their purported status, there was no discrimination.
In Dudley Metropolitan Council v Mailley [2023] EWCA Civ 1246; [2023] PLSCS 181, the Court of Appeal rejected the argument that the statutory basis of succession to a secure tenancy was directly discriminatory and upheld a possession order.
19 Uffmoor Estate, Halesowen B63 4JR (“the property”) was a large three/four-bedroom property. In 1965 it was let by the council to Dorothy Mailley, and she moved in with her three children. Her tenancy became a secure tenancy in 1980, when the Housing Act 1980 came into force, and was subsequently governed as a secure tenancy by the Housing Act 1985.
The property was the sole or principal residence of Mrs Mailley and one of her children (the appellant) until 17 October 2016. On that date Mrs Mailley permanently moved to a care home with no prospect of returning to the property as she had dementia and required a high level of care. She therefore no longer satisfied the tenant condition necessary to maintain her status as a secure tenant, and the respondent served a notice to quit which expired on 19 December 2016. In 2018 Mrs Mailley died.
Secure tenancies may be assigned only in limited circumstances. Section 91(3)(c) of the 1985 Act allows an assignment to a person who would have been qualified to succeed if the tenant had died immediately before the assignment. Mrs Mailley had not made such an assignment prior to her lacking capacity.
Section 87(b) of the 1985 Act allows succession to a person who occupies a property as their only or principal home at the time of the tenant’s death if they are a member of the tenant’s family and resided with the tenant throughout the period of 12 months ending with the tenant’s death. As a result of Mrs Mailley permanently moving out, the appellant could not satisfy this requirement.
The council brought possession proceedings. Article 14 of the European Convention on Human Rights prohibits discrimination on “any ground such as sex, race… or other status”. The appellant resisted the possession proceedings, arguing that as Section 3 of the Human Rights Act 1998 requires legislation to be read and given effect in a way compatible with convention rights, so it should be read to allow succession by someone of “other” status, namely “the daughter of a tenant who was permanently removed from her home as a result of her ill health and who did not have capacity to assign her tenancy to her potential successor”.
Although a person’s health status (including a disability and various health impairments) can fall within “other” status, including capacity in the concept of status has real difficulties as regards certainty. In the present case, though it was not the purported status that meant the appellant could not succeed but the failure to satisfy the tenant condition, it was a consequence of the operation of the legislation that meant the appellant could not be a qualifying successor.
Further, the treatment was the same as if a tenant with capacity had not made an assignment and did not satisfy the tenant condition – there was no direct discrimination (and indirect discrimination was not pleaded).
In any event, the alleged discrimination could be justified when one considered the legitimate aims and needs of the different interest groups identified, such as members of a deceased tenant’s family who have occupied a dwelling as their home, those on housing waiting lists and a local authority trying to manage limited housing stock. The appeal was dismissed.
Elizabeth Haggerty is a barrister
