Housing and the succession and the European Convention of Human Rights


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In the case of Susan Turley V (1) Wandsworth London Borough Council (2) Secretary Of State For Communities & Local Government [2017], the Court of Appeal considered the argument whether the requirement that a partner of a secure tenant had lived with the deceased tenant for 12 months prior to the death, was manifestly without reasonable foundation.

Ms Turley (T) and Mr Doyle (D) were unmarried. D was the sole secure tenant of the property in question, and had lived in the property since 1995. In 2010, their relationship broke down and D moved out, leaving T and their two children in occupation of the property. The couple reconciled and D returned to the property in January 2012. Unfortunately, D died in March 2012.

The local authority (LA) required T to vacate the property as she did not fall within the definition of a 'family member' under the Housing Act 1985 and had not resided with D 12 months prior to his death.

T alleged this interfered with her rights under Articles 8 and 14 of the European Convention of Human Rights (ECHR), namely the right to respect for private and family life and the prohibition of discrimination. T argued that the right of succession constituted discrimination as the succession rights for a spouse is unconditional and the succession rights for common law spouses (a couple living together as husband and wife or civil partners) required a 12 month condition.

The Court of Appeal dismissed T's appeal. They justified their decision by highlighting that local authority secure tenancies were a limited resource and it had been a policy to require a degree of permanence in the relevant relationship of a deceased tenant and the partner looking to succeed to the tenancy.

The Court of Appeal also considered whether the 12 month condition was proportionate. The LA argued that the difference between legal spouses and common law spouses represented a legislative choice, and the courts recognised a wide margin of appreciation. In turn, T argued that the 12 month condition was not a social or economic policy, but merely an evidential tool.  The Court of Appeal dismissed T's argument, pointing out that the 12 month condition was the best available objective demonstration to illustrate that a relationship had the required "permanence" and "constancy".

This decision will no doubt be welcomed by all providers of social housing, as it reinforces the point that the rules on succession for secure tenancies are not unlawful and do not interfere with the ECHR. Changes in society show that there is an increased number of cohabiting couples, who are not married or in a civil partnership. However, current legislation and policy does differentiate between these groups, and the Court of Appeal has held that this differentiation does not constitute discrimination under Article 14 of the ECHR. This decision is likely to apply to assured tenants where often similar criteria can be found in tenancy agreements.

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