Council wins Court of Appeal battle over succession to property after mother entered care home

Dudley Metropolitan Borough Council has defeated an appeal by a resident who claimed she should have been able to succeed to her mother’s council house as - had her mother not had to enter a care home - she would have been resident there with her at the time of her death.

Dorothy Mailley had rented the property from Dudley and lived there with her daughter Marilyn Mailley for 57 years.

Mr Justice Cotter had in 2022 concluded that Marilyn Mailley was not entitled to succeed to the secure tenancy of her mother’s home because, by entering the care home, Ms Mailley senior had ceased to occupy the property as her “only or principal home” and had therefore lost security of tenure.

Michelle Caney and Eloise Marriott, of St Philips Chambers, appeared for Dudley and said the key issue in the appeal was whether Marilyn Mailley was unlawfully discriminated against under Article 14 of the ECHR because her mother died in a care home, so ending her entitlement to succeed to the secure tenancy of a three-bedroom house.

Ms Caney said: “The appeal engages questions in relation to whether capacity can amount to ‘other status’ under Article 14 and the matters to be taken into account when considering the question of justification, in particular whether the court was entitled to take into account the extreme pressure on housing stock and the incremental reduction of succession rights.”

Lady Justice Simler heard the case in the Court of Appeal with Lord Justice Baker and Lady Justice Elisabeth Laing, both of whom agreed with her judgment.

Simler LJ said Dudley had accepted a responsibility to re-house Ms Mailley, but she did not want this to happen and wished to stay in the home she had shared with her mother.

“Her case is that if her mother had not had to move permanently into a care home and had remained living at the property…she would have been entitled to succeed to the secure tenancy as a family member living with her, under section 87(b) HA 1985,” simmer LJ said.

“Equally, if her mother had assigned the tenancy to her before she lost capacity to do so (pursuant to section 91(3) HA 1985), she could have succeeded to it on that basis. Neither of these eventualities occurred however.”

Cotter J had found Ms Mailley was not a disabled person within the meaning of the Equality Act 2010 and rejected her argument that her eviction from the property would be an unjustified interference with her article 8 rights under the European Convention on Human Rights.

Simler J noted the High Court had concluded Dudley had legitimate aims for bringing a claim for possession, so as to better manage its pool of scarce housing and allocate the three-bedroom property to those most in need of it, as there “was and remains a dire shortage of family accommodation in the Dudley area”.

The judge said Ms Mailley had been unable to succeed to the tenancy not because of her purported status but because s81 of the Housing Act 1985 requires a secure tenant to occupy the property as their only or principal home.

“Where that condition is no longer met, their secure tenancy lapses and their tenancy can be terminated by a notice to quit,” Simler LJ said.

“The further consequence is that the appellant is not and could not be a ’qualifying successor’ under section 87. The appellant’s inability to succeed was a consequence of the operation of the legislation and not otherwise.”

Simler LJ dismissed arguments that discrimination had arisen because Ms Mailley was treated less favourably than someone who lived with a tenant who either died at home or assigned the tenancy.

“The correct comparator is a secure tenant who is forced to leave his or her home permanently for a reason other than illness or disability and does not assign the tenancy before doing so,” she said.

“Such a secure tenant would be treated in precisely the same way as the appellant – there would be no succession because the secure tenancy would have come to an end.”

Simler LJ also said there had been no error in Cotter J’s consideration of the progressive reduction in succession rights for tenancies entered into after 2012 as part of his analysis of the question of justification.

“In the absence of any manifest error in the judge’s reasoning, this ground of appeal must also fail,” Simler LJ said.

“It was for Cotter J to make an evaluative judgment on the question of justification and I can see no basis on which this court can or should interfere with the judgment he made.”

Mark Smulian