Family Succession to Secure Tenancies – Court of Appeal Clarifies the Law

In the realm of social housing, there are few more controversial issues than a child’s entitlement to succeed to the secure tenancy of a parent on the latter’s death. As a Court of Appeal ruling showed, however, succession rights may quite easily be secured by those who seek legal advice before it is too late.

The case concerned a woman in her 60s who, for many years, lived with her mother in a council-owned house of which the latter was the secure tenant. After the mother developed dementia, she had to move permanently into a care home. Provisions of the Housing Act 1985 meant that the house at that point ceased to be the mother’s sole or primary residence and her secure tenancy lapsed.

Had she died while still living in the house, her daughter would have been entitled to succeed to her tenancy. She could also have obtained professional assistance in assigning her tenancy to her daughter while she still had the mental capacity to do so. As she had failed to take that step, however, a judge subsequently found that the daughter had no entitlement to continue in occupation of the house and, at the council’s behest, issued a possession order against her.

The judge noted, amongst other things, that the social housing shortage in the relevant area was dire, particularly in respect of family homes, and that the daughter would be significantly under-occupying the three-bedroom house if she were to remain living in it alone. The council had accepted a responsibility to rehouse her and there was no question of her being made homeless.

Dismissing the daughter’s challenge to that outcome, the Court rejected arguments that those provisions of the Act which rendered her unable to succeed to her mother’s tenancy directly discriminated against her, in violation of Article 14 of the European Convention on Human Rights. Even had there been such discrimination, the Court found that it would have been justified.

The Court noted that the Act enshrines bright-line rules in relation to tenancy succession aimed at striking a balance between the interests of different groups, including those languishing on housing waiting lists. The objective of the legislation is to create a clear framework that can be operated by tenants, their families and local authorities with certainty and without creating difficult conflicts of interest.

The Court appreciated that its ruling would come as a blow to the daughter. It shared the judge’s hope, however, that she would be able to move forward in her life as she had much to offer others.