Court of Appeal agrees to hear appeal over possession order granted after late mother went into residential care

The Court of Appeal has granted permission to appeal against a High Court judge’s decision to grant a council an order for possession after the appellant’s late mother had moved into residential care and died there.

The mother had rented the property from Dudley Council and lived there with her daughter/the appellant, Marilyn Mailley, for 57 years.

In Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB) Mr Justice Cotter concluded that Marilyn Mailley was not entitled to succeed to the secure tenancy.

This was because her mother had ceased to occupy the property as her “only or principal home” (as required by section 87 of the Housing Act 1985) and had therefore lost security of tenure.

Had the mother died at home at any time from the date that Section 30 Housing Act 1980 (the predecessor of Section 87 Housing Act 1985) came into force in October 1980 until the date in October 2016 that it became clear that she no longer had any realistic prospect of returning home from the nursing home into which she had been admitted for respite care, Marilyn Mailley would have been entitled to succeed to her mother’s tenancy pursuant to Section 87 Housing Act 1985.

Cotter J’s ruling came after the claimant council served a notice to quit.

Garden Court North Chambers said permission to appeal had been sought and granted on the ground that Section 87(b) Housing Act 1985 is incompatible with Article 14 of the European Convention on Human Rights in that Section 87(b) Housing Act 1985 discriminated against the defendant, Marilyn Mailley, on the grounds of her status as she was treated differently to other qualifying successors on the basis that she had lost her right to succeed upon the member of her family ceasing to occupy their home due to permanent ill-health and who did not have the capacity to assign the tenancy to their qualifying successor under Section 91(3) Housing Act 1985.

“The relevant comparators being a tenant who had died at home and a tenant who had to cease to occupy due to permanent ill-health but who retained capacity to assign at that time.”

James Stark, of Garden Court North’s housing team, is instructed by Rose Pritchard of the Community Law Partnership.

See also:

Tackling a trio of defences to a possession claim - A recent High Court housing case considered issues around public law, proportionality and incompatibility. Michelle Caney and Eloise Marriott analyse the key themes in the judgment and draw together practical guidance for tackling such defences. (14 November 2022)

Housing case law update: October 2022 - Natalie Hurst and Paul Lloyd analyse housing law judgments of interest to local authorities and housing associations. (14 November 2022)