Council secures possession in case concerning effect of time spent in residential care by person with no mental capacity and whether it should deprive family member of right to succeed

A woman must leave her home of 57 years because her mother - the legal tenant of Dudley Metropolitan Borough Council - died in a care home rather than in the house, the High Court has ruled.

Mr Justice Cotter said Dudley was seeking possession of a property in Halesowen which had been let to the defendant’s mother in 1965 and the defendant had lived there since.

The judge heard that had the mother died at home at any time after Section 30 Housing Act 1980 came into force in October 1980 until October 2016 - when she no longer had any realistic prospect of returning home from the nursing home where she was initially admitted for respite care – the defendant would have been entitled to succeed to her mother’s tenancy under Section 87 Housing Act 1985.

While she retained mental capacity the mother could have assigned the tenancy to her daughter as a qualifying successor under Section 91(3) Housing Act 1985. The defendant had a lasting power of attorney, but could not use that for her own benefit.

Cotter J said: “There can be little doubt that [the mother] would have wanted the defendant to continue living at No 19.”

He said: “Amongst other issues this case raises the effect of a period of time spent in residential care by a person with no mental capacity and whether it should deprive a member of the family who had resided with them at a property of their right to succeed to that property.”

Dudley argued that the mother ceased to occupy the house when she entered the nursing home and so the tenant condition was not satisfied.

The council served a notice to quit and said the defendant then became a trespasser.

The defendant claimed her eviction would be a breach of Article 8(2) ECHR in that it would not be proportionate to a legitimate aim and unlawful as a matter of public law having regard to her personal circumstances, in particular the likely consequences for her mental health.

She also contended that she should be treated as having been entitled to succeed to her mother’s secure tenancy when she was removed permanently from her home.

Her argument was that if Section 87 Housing Act 1985 cannot be read as including those entitled to succeed family members removed by reason of ill health  - and who due to mental incapacity cannot assign their secure tenancies - then Section 87 Housing Act 1985 is incompatible with Article 14 ECHR.

The court was told there was “no rational connection with a legitimate aim for a qualifying successor whose parent has been required to cease to occupy the property in such circumstances to be treated any differently from a qualifying successor whose parent died at home and a declaration to that effect should be made under Section 4 of the Human Rights Act 1998”.

Dudley said the property would normally be allocated to a family, and it was coping with an extremely high demand for such three bedroom properties, with 866 families in need and an average of 65 bids for every one that became available.

Cotter J said evidence put to him about the defendant’s health including a fall, blackouts and dizziness, meant “there has to be very great concern that it is no longer safe for her to remain in the property in its current state”.

Hoarding had been an issue with several rooms filled with miscellaneous belongings and “I am quite satisfied that unless the defendant is effectively forced to remove belongings from the property, including items that she considers to have sentimental value, a process that she will find very difficult…she will not do so in any adequate or sustained fashion”.

The judge said he was satisfied that if she remained in the property, she “will not avail herself of any cognitive behavioural therapy focused on the state of the property (hoarding) or further assistance from the claimant”

Evidence from a doctor said there was “a reasonable likelihood that a change of accommodation may have beneficial effects on her in the sense that it may enable her to move on from the sense of grief which is now constantly reinforced by being surrounded by memories”.

The judge noted the shortage of family homes in Dudley and that the council was willing to accommodate the defendant elsewhere and she would not become homeless.

Cotter J concluded: “Evection is proportionate and justified under Article 8…if she remains in the property it will be significantly underoccupied, she will remain in the grip of grief and she will be at risk of injury due to its cluttered state (as she will reject help as she does not perceive she is a hoarder)”.

He added that the situation of a potential successor of a tenant who dies at home and one of a tenant permanently removed but who retains capacity were not analogous.

Cotter J said: “[If] a family member should succeed as the date the tenant ceased to occupy the dwelling house as their only or principal home by reason of not being able to continue residing there by reason of their ill health and also being incapable of assigning their tenancy, the original tenant would lose their rights even if they subsequently regained capacity.

"They could therefore be in direct conflict with their family member/s. This could not happen if the tenant died or voluntarily (and with capacity) assigned the tenancy.

“A right to succeed on a certain and permanent occurrence is not analogous to a right to succeed on an uncertain and possibly temporary basis.”

Cotter J added: “I wish [the defendant] well for the future. I appreciate that my decision will come as a blow, but I truly do believe she can move forward in her life and has much to offer to others.”

Mark Smulian