Dudley Metropolitan Borough Council v Mailley [2023] EWCA Civ 1246
Essex
This case has been summarised on page 29 of 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023).
ICLR
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below. For full details, see their index card for this case.
Dudley Metropolitan Council v Mailley
2023 Oct 11; 27
Baker, Simler, Elisabeth Laing LJJ
Housing— Secure tenancy— Death of tenant— Defendant living in house let to her mother under secure tenancy— Local authority terminating tenancy after mother moving permanently to care home with dementia— Defendant consequently unable to succeed to tenancy on mother’s death— Whether legislation unlawfully discriminating against defendant when compared to family members of tenants who died at home— Whether defendant having relevant “status” for purposes of discrimination claim— Housing Act 1985 (c 68), s 81, 87, 91 — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14
For many years the defendant lived in a house which was let to her mother by the local authority pursuant to a secure tenancy. However, after the mother had moved to a care home permanently with dementia, the local authority terminated the secure tenancy on the ground that the mother had ceased to occupy the house as her only or principal home and thus no longer met the “tenant condition” in section 81 of the Housing Act 1985. The local authority then brought a claim for possession against the defendant on the ground that she remained in the house as a trespasser. A few days later the defendant’s mother died. If the defendant’s mother had been a secure tenant at the time of her death, the defendant would have been entitled to succeed to her tenancy pursuant to section 87 of the 1985 Act; and if the mother had retained mental capacity at the relevant time she could have assigned the tenancy to the defendant pursuant to section 91(3) of the 1985 Act. The defendant resisted the possession claim, contending that in being denied the right to succeed to her mother’s tenancy in either of those ways, she had been discriminated against in the enjoyment of her rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, contrary to article 14 read with article 8 of the Convention. Cotter J allowed the claim. The defendant appealed on the basis that, inter alia, the judge had erred: (i) by finding that the defendant had no relevant status under article 14 of the Convention; (ii) in finding that the defendant and those whose members of the family died at home or who assigned to their qualifying successors were not in analogous or relevantly similar situations; and (iii) in finding that even if unlawful discrimination in violation of article 14 of the Convention had been found, it would have been overstepping a constitutional boundary to read the words proposed into section 87(b) of the Housing Act 1985.
On the appeal—
Held, appeal dismissed. (1) In a direct discrimination case it was necessary to compare the circumstances of the person treated less favourably with those of a person in a materially similar situation, in order to test whether there was differential (or discriminatory) treatment on the ground of the status relied on. The judge held that the two comparators relied on by the defendant (the potential successor of a tenant who died at home and the potential successor of a tenant who was permanently removed from her home as a result of her ill-health but retained capacity to assign the tenancy) were not analogous because a right to succeed on a certain and permanent occurrence (death) was not analogous to a right to succeed on an uncertain and possibly temporary basis. In the proposed comparator, the legislative conditions for having and retaining a secure tenancy were met. By contrast, in the defendant’s case they were not met by virtue of the defendant's mother having left the property permanently so that the section 81 tenancy condition was no longer fulfilled in the period that followed. The two groups were not in materially similar situations. The correct comparator was a secure tenant who was forced to leave his or her home permanently for a reason other than illness or disability and did not assign the tenancy before doing so. Such a secure tenant would have been treated in precisely the same way as the defendant. There would have been no succession because the secure tenancy would have come to an end (paras 52, 54, 55).
(2) The status relied on by the defendant could not be defined entirely by the discrimination alleged. There ought to have been a ground for the difference of treatment in terms of a characteristic that was more than a mere description of the difference in treatment. The way in which the defendant originally formulated the status relied on introduced the question of discrimination into the definition of the “other status” itself under article 14. So, too, did the refined “other status” which was defined by the aspects of the statutory scheme that the defendant sought to challenge. It was also necessary in a direct discrimination case that the status and the difference in treatment on which the alleged discrimination was founded should not be the result of the operation of the legislation itself. Whichever formulation of status was adopted in the case, the question was whether the difference in treatment complained of was in fact on the ground of that “other status”. The reason why the defendant was not entitled to succeed to her mother's tenancy did not depend on her purported status (whether by reference to capacity or disability or at all). Section 81 of the Housing Act 1985 required a secure tenant to occupy the property as their only or principal home. Where that condition was no longer met, their secure tenancy lapsed and their tenancy could be terminated by a notice to quit. The consequence was that the defendant was not and could not be a “qualifying successor” under section 87 of 1985 Act. The defendant’s inability to succeed was a consequence of the operation of the legislation and not discrimination (para 47, 48, 49).
R (Gangera) v Hounslow London Borough Council [2003] HLR 68 and the dicta of Lewison LJ’s in Haringey London Borough Council v Simawi [2020] PTSR 702 at para 47, considered.
(3) The judge struck a fair balance between the administrative convenience of certainty and the discrimination suffered. The legislative scheme had the legitimate aim of certainty which it achieved by proportionate means. It set a bright-line rule so that the tenant, the landlord and any potentially qualifying successor knew where they stood. Potential injustice (if capacity were regained) and conflicts of interest between tenant and cohabitee, and between cohabitees, were avoided. Choices about welfare systems involved policy decisions on economic and social matters which were pre-eminently matters for national authorities. 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 was to be accorded a wide margin of appreciation (para 66, 67).
R (Turley) v Wandsworth London Borough Council [2017] HLR 21 and dicta of Lord Dyson MR in Swift v Secretary of State for Justice [2014] QB 373B, para 35, considered.
Decision of Cotter J [2022] 1 WLR 5394B affirmed.
James Stark and Tom Royston (instructed by Community Law Partnership, Birmingham) for the defendant.
Michelle Caney and Eloise Marriott (instructed by Head of Legal Services, Dudley Metropolitan Borough Council) for the local authority.
Agatha Barta, Barrister
Referenced Legislation
Housing Act 1985 (c 68), s 81, 87, 91
Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14
External links
- Eloise Marriott, 'Arguing Incompatibility: Lessons from the Court of Appeal' (St Philips Barristers, 19/8/24) . This summarises the judgment and mentions that the appellant had recently made an application to the Supreme Court for permission to appeal.
Full judgment: BAILII
Subject(s):
- Miscellaneous cases🔍
Date: 27/10/23🔍
Court: Court of Appeal (Civil Division)🔍
Judicial history:
Judge(s):
Parties:
Citation number(s):
What links here:- Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB)
- 39 Essex Chambers, 'Mental Capacity Report' (issue 135B, November 2023)
Published: 2/9/24 14:12
Cached: 2024-09-08 06:18:43