Flexible tenancies, security and succession

Alec Samuels considers the background to the new flexible council tenancy and the phasing out of security and succession.

In the light of changing social conditions and changing social policy the lifelong security of the council tenant and the right of succession to the tenancy by a member of the family have been abolished for new council tenants. Security for life was intended to protect the vulnerable position of the low income working class family man in a time of affordable housing shortage.

The right of succession (Housing Act 1985 ss 86A, 88, 89 and 90) was created for reasons of social policy, namely to enable the widow to continue to live in the dwelling-house following the death of her husband, who was usually the sole and original tenant. When in due course the widow died the tenancy would come to an end. It was also recognised that there might be a deserving member of the family, such as a spinster daughter who for years had cared for the deceased parent tenant, and who might wish to continue to live in what had been her “home”.  

If the original tenancy was a joint tenancy, which has become much more common in these days of gender egalitarianism, then on the death of the husband the widow continued as the tenant by survivorship, she did not need to "succeed", she was protected anyway. However she is statutorily treated as a "successor" (Housing Act 1985 s 88(1)(b)) so as to preclude her child on her death claiming the succession to the tenancy, as there can be no succession to successors. Thus the widow had to seek to negotiate a new sole tenancy with the council landlord if she wanted her child to succeed in due course if qualified as a successor (Housing Act 1985 s 87). Logically if the survivor of a joint tenancy becomes the sole tenant, the tenancy continues. Logically, on the death of the sole tenant one would expect the succession rules to apply.

But as a matter of policy Parliament departed from this logic.[1] If she were to become a sole tenant by virtue of survivorship from the joint tenancy she would be deemed herself to be a successor (Housing Act 1985 s 86A and 88), and there could be no further succession.[2] If she were to become a sole tenant by virtue of a new tenancy, a new sole tenancy, then she would not be deemed to be a successor and there could in due course be a successor to her.[3] The policy was to protect the surviving spouse, or, if the deceased sole secure tenant left no surviving spouse, then a member of the family, for example a spinster daughter living there and looking after him or her.

A common situation: Husband H and wife W lived in a council house with their daughter D. H and W became old and frail and D looked after them. H died leaving W a widow and D looked after W. Or W died leaving H a widower and D looked after H. On the death of her last parent D not unnaturally wanted to stay on in the house, her home for many years. Her right, if any, should not depend upon the terms of the tenancies held by H and W in their lifetime, but upon social policy. Many councils resolved the situation for D on the social merits as they saw them.

Qualifications for succession

Under the old law a person is qualified to succeed to a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either:

(a) he is the tenant's spouse or civil partner, or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death; unless, in either case, the tenant was himself a successor. (Housing Act 1985 s 86A)

Residence and continuity of residence depends upon the nature and extent of the occupation in the light of intention and the facts.[4]

Provided that the member of the family has resided with the secure tenant for twelve months, and at the death of the tenant was living in the secure tenancy dwelling-house, then the fact that during those twelve months they may have lived in other secure tenancy council accommodation before the death is irrelevant.[5] The twelve month qualifying period may be achieved in more than one council house, i.e. the tenant moves from one council house to another.

Where both a surviving spouse and a member or members of the family qualify for succession the surviving spouse is to be preferred, and subject to this, if there are two or more members of the family the successor is either the one agreed amongst themselves or in default of agreement as selected by the landlord (Housing Act 1985 s 89). For the future secure and flexible tenancies will carry the right to only one succession, and that only to a spouse or cohabitee. However, the local council may by contract extend the right of succession, for example by shortening the qualifying period, widening the category of eligible successors to family members or carers or resident friends, or providing for two or more successions (Housing Act 1985 s 86A). Many councils have practised this “generosity” in the past.

Cohabitees

Even though cohabitees could marry or enter into a civil partnership so as to qualify under the old law as a spouse or civil partner, Parliament has now recognised cohabitees, living with the tenant as his or her spouse, or as his or her civil partner, and they qualify accordingly under the succession provisions (Housing Act 1985 s 86A(5)).

Successor a minor

The tenant, the grandmother, died. Her daughter had been living with her, but for only six months and was thus unqualified for succession, though her granddaughter, a minor, had been living with her for three years. Held, the granddaughter qualified and succeeded, albeit that her tenancy would be held on trust for her until adulthood.[6] No doubt the daughter would live there looking after the granddaughter, and on the adulthood of the granddaughter would or might continue to live there if she had the consent of the granddaughter.

Human rights

The claim that an otherwise unqualified member of the family is entitled to succeed by virtue of the right to family life article 8 will probably be argued but will probably fail, as will a claim of discrimination if the claimant child happens to be from abroad, as all unqualified persons are treated the same.[7] The abolition of the statutory right of succession for members of the family for future tenancies is unlikely to change the situation, as the abolition is universal. Though the claimant may be able to point out that some councils give generous rights of succession by contract whereas his particular council gives none. The argument that the human right of family life of the child of the deceased tenant can prevail over the right of the council to possession in order to relet to the family at the top of the waiting list seems very thin in the light of the competing social policies and priorities and the intention of Parliament and the attitude of the judges.

Term certain

If a secure tenancy is fixed-term then on the death of the tenant the tenancy ceases to be a secure tenancy, unless the person acquiring the rest of the term is qualified as a successor in the normal way (Housing Act 1985 s 90).

Exchange of tenancies

Many councils have internal exchange schemes, whereby their tenant A may exchange with their tenant B, subject to the approval of the council. Parliament has now introduced a nationwide scheme and the councils must comply (Localism Act 2011 ss 158-159).

Discretion of the court

Even where the person fails in his claim for a tenancy or a claim of succession the court has an extended discretion to stay or suspend the execution of the order for possession or postpone the date of possession for such period or period as the court thinks fit (Housing Act 1985 ss 83-85A). The court may impose such conditions as it thinks fit. The order must be reasonable,[8] it may be varied,[9] but is not available once possession has been given up.[10] Where the council establishes a clear right to possession the court will be extremely reluctant, except in very exceptional cases, to grant more than the six weeks provided for by statute.[11] Article 8 always requires that any order must be lawful, legitimate, proportionate and reasonable in the circumstances. The notice seeking possession should be clear and unequivocal, not subject to conditions which might allow the tenant to continue the tenancy.[12]

Inertia

Through ignorance of the true facts, or inertia, or by way of discretionary policy, the council were often content for a family member of the next generation to carry on living in the premises, paying the rent, causing no trouble, even though the statutory conditions were not strictly adhered to and the family member taking over the tenancy might not have been a particularly deserving person in terms of social policy and priority for council housing, which is usually a scarce commodity and subject to a long priority waiting list.

End of tenancies for life

The tenant may have begun the tenancy as a qualified social tenant, e.g. family man, single mother, disabled, unemployed, living on benefits, unskilled, low income, whatever. Over the years his circumstances substantially change, he achieves a good income, he can well afford to provide for himself and his family in the private sector. But he remains in his council dwelling-house as a secure tenant, depriving a deserving family on the waiting lit of a home. In future the regime will change for the new council tenant, and at the end of the fixed term tenancy he may fail to obtain a renewal.

Flexible tenancies

For the future the flexible tenancy will replace the secure tenancy (Housing Act 1985 ss 107A-107E). The flexible tenancy will be for a fixed term, a minimum of two years. The tenant will be entitled to take lodgers, though not sublet, as many council tenants do to students, though without informing the council, and to be consulted on management, and to exercise the right to buy. The flexible tenant is not entitled to carry out improvements unless the tenancy agreement expressly so provides, and no compensation is payable unless the tenancy agreement expressly so provides (Housing Act 1985 s 99A(9)).

During the term possession may only be recovered by the council for rent arrears or breach of an obligation and where it is reasonable (Housing Act 1985 ss 83-85A, schedule 2). The tenancy may begin as an introductory tenancy, or demoted tenancy arising out of a secure tenancy, and then proceed to a fixed term flexible non-secure tenancy, for at least a two year term, not indefinite and not renewable as of right. Furthermore there will be no rights of succession, apart from the normal inheritance of the tenancy for the remainder of the term (Housing Act 1985 ss 107A-107E).[13]

The new policy is that for future council tenancies there should be no statutory right of succession except for the survivor of the marriage or the cohabitation or the civil partnership, no statutory right of succession for any other member of the family.

If the council refuses to grant a flexible tenancy or grants only for a period shorter than the tenant seeks, the tenant or prospective tenant may seek a review, and an oral hearing, with representation; and allege that the decision was not taken by an appropriately senior officer, or the decision was in breach of the council’s policy, or no or inadequate reasons were given, or the right to family life has not been protected, e.g. homelessness is involved.

If the council seek possession at the end of the flexible fixed-term tenancy they are prima facie entitled to possession as of right (Housing Act 1985 s 107D). However, the council must serve a 6 months’ notice for termination and a 2 months’ notice for possession and again the tenant may seek a review, and the council must give reasons for not renewing.   Many of the review cases are likely to turn on alleged lack of priority need or poor tenancy record or anti-social behaviour. The court will consider reasonableness and the right to family life article 8, taking into account the duties and responsibilities of the local authority in respect of social housing, what is necessary in a democratic society, and in the light of the facts in the round whether the claim for possession is legitimate and proportionate. There may be exceptional circumstances, such as particularly vulnerable people, indicating that it would be disproportionate for the council to claim possession. Having decided that possession should be granted, the order should normally take effect within the statutory 42 days and not be further suspended.[14]

Article 8 will only help the secure tenant where the point is seriously arguable, the tenant is threatened with homelessness, the council have given no reasons, and appear not to be pursuing a legitimate aim in accordance with their public duties, and the claim for possession is disproportionate in all the circumstances.[15] The facts must be relevant and exceptional and not a matter of sympathy. In respect of the flexible tenant, who by definition will have no security apart from his fixed term, the chance of success under article 8 must be slim indeed.

In view of the end of security and succession as previously obtained,[16] the expectation must be that there will be a proliferation of requests for reviews and for effective reviews, some leading on to judicial review. The council must promulgate their policy in all these matters (Localism Act 2011 ss 150-153), and a degree of political influence and practice may be expected.

Right to buy

Where the children or one of them want to stay in the dwelling-house after the death of their parents and no right of succession exists, and the council landlord is very unlikely to grant a new tenancy, then the children or one of them may persuade their parents or parent to exercise the right to buy (Housing Act 1985 part V, ss 118-188), perhaps the children or one of them putting up the money or guaranteeing the mortgage, in the hope or expectation or agreement that the title to the dwelling-house will in due course be passed on to the next generation. The right to buy must be executed by conveyance before the tenant dies.[17]

Private sector

In the private sector the tenant is likely to have either a fixed term lease or a periodic tenancy, an assured tenancy, protected by law to the extent that possession may only be obtained by court order and upon certain specified grounds (Housing Act 1988 ss 1-23, s 7 schedule 2). The right of succession for an assured tenancy obtains for a spouse or civil partner or relevant cohabitee, but not to a member of the family (Housing Act 1988 s 17).

Common law and statute

One might have expected that the Housing Act would constitute a complete comprehensive code for council housing, but this is not the case and regard must always be had to the interplay with human rights law and common law, for example where a joint tenancy is concerned. The husband and wife held a joint tenancy; the husband left; the wife continued in possession; the joint tenancy was never severed; she died; therefore her surviving husband became the sole tenant; the husband had never surrendered his tenancy; he was not in occupation and did not resume possession; therefore the council was entitled to possession; their daughter who had been living with her mother had no claim, because the tenant, the husband and father, had not died and no question of succession arose. [18]

The general law relating to the status of the minor and the capacity for holding property, under common law and statute, is taken to apply to the housing legislation.[19] Their lordships in the Supreme Court are manifestly dissatisfied with the old jurisprudence regarding leases, based on a different property world, at least for public housing. They held that the parties could agree upon a month to month tenancy, with a month’s notice, but subject to constraints or restraints upon the giving of such notice if the parties so agreed.[20]

Parliament should decide upon the overarching social policy to be applied to the landlord-tenant situation, particularly in respect of security of tenure, succession and grounds for possession in simple, clear, comprehensive and practical terms with a degree of discretion for public landlords such as councils and housing associations within that overarching social policy framework, as different circumstances may obtain in different parts of the country and in different circumstances.

Alec Samuels is a barrister and formerly Reader in Law in the University of Southampton. He has also been very active in local government, retiring as leader of Southampton City Council in 2011. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..

© Alec Samuels, 2013