Court of Appeal rejects human rights challenge to social housing rules

The Court of Appeal has rejected a challenge under the Human Rights Act 1998 to the legislation governing the right to succeed to a secure tenancy.

The Appellant was the long-term partner of the sole tenant to a four-bedroom house owned by the London Borough of Wandsworth. In 2010 there was a breakdown in their relationship and the tenant moved out, leaving the Appellant in the house with their children. Following a reconciliation, he moved back in in January 2012 but he was by then seriously ill and he died in March of that year.

Under the Housing Act 1985 as it stood at the time, a spouse had an automatic right to take over a secure tenancy when the tenant died. However, an unmarried partner such as the Appellant had to have been living with the tenant for the 12 months preceding the tenant’s death in order to qualify. On the fact of this case, therefore, the Appellant was not entitled to take over the tenancy and the Council required her to vacate the house.

The Appellant challenged the legislation, arguing that it discriminated between spouses and unmarried partners and was therefore contrary to Article 14 and Article 8 of the European Convention on Human Rights (the prohibition on discrimination and the right to a family and private life). In a judgment handed down on 24 March 2017, the Court of Appeal dismissed the challenge, holding that:

• The legislation pursued a legitimate aim, namely limiting rights of succession to family members whose relationship with the tenant was of a permanent character. Whilst that requirement was inherently satisfied in the case of spouses, it was legitimate to impose the 12 month condition on unmarried partners as a means of demonstrating the same element of permanence and constancy.

• Since social housing could be equated with welfare benefits, the relevant standard of review in assessing whether the 12 month condition was proportionate was whether it was “manifestly without reasonable foundation”.

• It was impossible to say that the condition was manifestly without reasonable foundation as a criterion for demonstrating the necessary degree of permanence and constancy.

• The fact that the condition had since been removed from the legislation did not render the old regime unjustifiable. Nor had Parliament been required to make the change in the legislation retrospective.

At a time of significant pressure on the nation’s social housing stock, the Court’s judgment will come as a relief to local authorities. It is, moreover, of interest in that it clarifies the standard of review that applies when a court is considering a challenge to a socio-economic measure based on Article 14 of the ECHR. Whilst the “manifestly without reasonable foundation” test is not a “get out of jail free” card for respondents, it is plainly a stringent test.

Ben Lask represented the Secretary of State for Communities and Local Government. A copy of the judgment is here.

To read the case note, please click here.