Dudley v Mailley: Succession rights under the spotlight

Housing, Local Government

By Matthew Feldman

1. In this interesting case, Marilyn Mailley (‘the appellant’), the adult daughter of the late Dorothy Mailley, appealed against a decision that Dudley MBC (‘the local authority’) was entitled to take possession of the property in which she lived, namely 19 Uffmoor Estate, Halesowen, B63 4JR (‘the property’), which had previously been occupied under a secure tenancy by her late mother.
2. In October 2016, the appellant’s mother, who had vascular dementia and lacked mental capacity, became a permanent resident in a care home with no prospect of returning to the property. Sadly, she died in January 2018.  Under s87(b) of the Housing Act 1985 (‘the Act’), had the appellant’s mother died while living in the property, the appellant would have been entitled to succeed to the secure tenancy as a family member living with her mother. However, the appellant’s mother had ceased to meet the tenant condition in s81 of the Act in October 2016, and under the terms of the Act, the appellant had no right to succeed to the secure tenancy as she could not satisfy s87(b) of the Act.  Furthermore, her mother had not assigned the tenancy to her under s91(3)(c) of the Act.
3. At first instance, the appellant argued before Cotter J that s87(b) of the Act unlawfully directly discriminated against her contrary to ECHR article 14 read with article 8, contending that her 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, was a protected “other status” within article 14. If the appellant’s mother had retained capacity and assigned the tenancy to her at any time before her death, she would have succeeded to the tenancy.  However, Cotter J held that the appellant could not rely on that status because it relied on a third party’s capacity as a defining characteristic, and capacity was not a sound foundation for a status as it could change from time to time, and may do so quickly.
4. The Judge granted a possession order in respect of the property, holding that for ECHR article 8 purposes, eviction was proportionate to the local authority’s legitimate aim in seeking to recover possession to effectively perform its housing management functions. The Judge held that s87 of the Act was not incompatible with Article 8 or Article 14 as it achieved the legitimate aim of striking a balance between those who were entitled to succeed to a secure tenancy and those who were not.  The appellant appealed to the Court of Appeal.
5. On appeal, the appellant argued that a status raising factual questions to be answered in a particular case did not render the status unduly vague but the Court concluded that the Judge had rejected the status the appellant relied upon because a defining element of it involved capacity, which was uncertain and could be regained which could lead to real problems if the original tenant wished to return to the property as the secure tenant. Further, the reason why the appellant was not entitled to succeed to her mother’s tenancy did not depend on her status.  The condition under s81 of the Act was no longer met, and the secure tenancy lapsed.  Consequently, the appellant was not a qualifying successor under s87 of the Act: paras [29]-[35], and [49] of the judgment.
6. The appellant sought to amend the status she relied upon to “the qualifying successor daughter of a disabled person such that…. when she permanently ceased to occupy as her only or principal home she was unable to assign the tenancy to her daughter as a consequence of her illness/disability” but the Court concluded that that amendment was impermissible. The concepts of disability and capacity were different; disability introduced different questions of law and fact, none of which had been ventilated at trial.  Further, it was impermissible for the status relied upon to be defined entirely by the discrimination alleged – there had to be a ground for the difference of treatment in terms of a characteristic that was more than a mere description of the difference in treatment [41]-[48].
7. The Court held that the correct comparator for the purposes of this case was a secure tenant who was forced to leave their home permanently for a reason other than illness or disability and did not assign the tenancy before doing so. Such a tenant would be treated in the same way as the appellant, that is, the secure tenancy would come to an end and there would be no succession under s87 of the Act [51]-[55].
8. The appropriate test for considering justification in this case was whether the difference in treatment pursued a legitimate aim and there was a reasonable relationship of proportionality between the aim and the means employed to achieve it, while acknowledging the appropriate margin of appreciation by reference to R (SC) v Secretary of State for Work and Pensions [2022] A.C. 223. The aim of limiting succession rights was to strike a balance between the interests of those with succession rights, those waiting for housing, and the local authority’s interest in allocating its scarce housing stock fairly.  The scheme also had the legitimate aim of setting bright-line rules aimed at ensuring that succession legislation could be operated by tenants, their families, and local authorities with certainty, so that they knew where they stood [56]-[70].
9. Furthermore, the Court held that the Judge had been right to decline to read words into s87(b) of the Act to remedy any unlawful discrimination. The tenant condition in s81 of the Act was a clear and certain condition.  It would cross the constitutional boundary for the court to create a new right of succession [71].  Accordingly, the appeal was dismissed.
10. The Court found that the appellant’s inability to succeed was a consequence of the operation of the legislation and not otherwise, and that Parliament struck the balance between the different interests of tenant, family members, landlord and those in need of social housing. It seems that following the Court’s judgment in this case, absent a change to the legislative scheme, claims based on direct discrimination involving mental capacity, including claims under s13 of the Equality Act 2010, are likely to be significantly more difficult to advance.

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Matthew Feldman
February 2024

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