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The Court of Appeal has recently confirmed the lawfulness of the rule which prevents a secure tenancy from being inherited where the tenant has been permanently moved to a care home and lacks capacity to assign the tenancy. 


Dudley Council provided Mrs Mailley with a three-bedroom property in which she and her daughter resided from 1965 until 2016. The tenancy became a secure tenancy when the Housing Act 1980 came into force. In 2016, due to ill health and losing mental capacity, Mrs Mailley vacated the property and became a permanent resident of a care home.

Since Mrs Mailley no longer occupied the property as her only or principal residence, the tenancy ceased to be secure as the "tenant condition" in the Housing Act 1985 was not met. The Council therefore served a Notice to Quit, terminating the tenancy in December 2016 and subsequently issued possession proceedings against Mrs Mailley's daughter. 

Mrs Mailley's daughter refused the Council's offer of alternative accommodation and defended the possession proceedings on the following grounds: 

  1. The Council had not offered her a review of the decision to seek possession, contrary to the Council's own policy (although this was offered during the proceedings);  
  2. Evicting her from the property would breach her right to respect for private and family life under Article 8(2) of the European Convention on Human Rights; and 
  3. That the succession rules should be read to so as to allow resident family members to succeed to the tenancy where the tenant has vacated the property due to ill health and, due to mental incapacity, cannot assign their secure tenancy.  It was argued that a failure to interpret section 87 of the 1985 Act in this way would be a breach of Article 14 of the ECHR which protects against discrimination on any ground such as sex, race or 'other status'.

Under section 87 of the Act (now replaced with section 86A) a person is qualified to succeed to a secure tenancy granted before 1 April 2012 if they occupy the property as their only or principal home at the time of the tenant's death and, if they are a family member, they have resided with the tenant throughout the 12 months before the tenant's death. 

The High Court rejected the above arguments and made an order for possession. 

The Appeal

Mrs Mailley's daughter appealed on the ground that she would have succeeded to the tenancy if her mother had not moved to a care home and had remained living in the property as a family member under section 87 of the 1985 Act and/or if her mother had assigned the tenancy to her before she lost capacity pursuant to section 91(3) of the 1985 Act.  This, she argued, meant that section 87 directly discriminated against her in breach of Article 14 of the ECHR because of her "other status" as "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."

The appeal was dismissed. The court held that the circumstances relating to Mrs Mailley's daughter did not constitute "other status" under Article 14. The reason why she was not entitled to succeed the tenancy was due to the operation of section 87 and not because of "other status."  It was considered that to extend the succession rules in the way suggested by Mrs Mailley's daughter would create uncertainty given, in particular, the prospect that a tenant may return home after a period of respite in a care home. 

The court also considered that, even if there had been a difference in treatment, a balance had been struck between providing Mrs Mailley's daughter with suitable alternative accommodation and the three-bedroom property to be made available for those who were most in need. Therefore sections 87 and 91(3) of the 1985 Act served legitimate aims. 

This case is important for local authorities as it highlights human rights and public law challenges possession claims can face. It clarifies the position of the Court in relation to how it will apply the ECHR to the 1985 Act.