Wandsworth London Borough Council v Michalak

Housing Act 1985, section 113 provides an exhaustive definition of the relatives who are members of a secure tenant’s family for succession under section 87. It does not extend to a distant relation outside that list.

Article 14 of the Convention requires a structured assessment of ambit, differential treatment, analogous situation, and objective and reasonable justification. Differences between private Rent Act tenancies and local-authority secure tenancies may mean that their occupants are not relevant comparators. A statutory succession scheme which confines valuable social housing to close relatives may be justified by legal certainty and the fair allocation of scarce housing.

Where such a scheme lawfully determines that an occupier has no right to remain, its legislative justification ordinarily makes a possession order compatible with Article 8. The court need not conduct a case-specific balancing exercise or require separate evidence of the landlord’s need for possession.

The council sought possession of a flat after the death of its secure tenant. The appellant had lived in the flat for many years. He was a distant relative of the deceased tenant and had assisted him to some extent, but the county court found that they had led separate lives and did not have a loving or caring relationship.

Judge Winstanley, in the Wandsworth County Court, ordered possession on 15 June 2001. The appellant contended that he succeeded to the secure tenancy under sections 87 and 113 of the Housing Act 1985, or that eviction would breach Articles 8 and 14 of the Convention as incorporated by the Human Rights Act 1998.

The central issues were whether he was a member of the tenant’s family for statutory succession, whether the statutory scheme was discriminatory, and whether Article 8 required an individual proportionality assessment before possession could be ordered.

1. Appeal dismissed unanimously. Brooke LJ gave the principal judgment. Mance LJ agreed and gave additional reasons on the possession issue. Park J agreed with both judgments.

2. Section 113 of the Housing Act 1985 was an exhaustive statutory definition of the family relationships capable of supporting succession under section 87. Parliament had replaced the potentially open-ended Rent Act concept with a defined list in order to achieve certainty in local-authority housing. The appellant’s distant relationship did not fall within the list, so he had no statutory right to succeed.

3. Article 8(1) was engaged because the flat was the appellant’s home, despite his lack of a legal entitlement to occupy it. It did not, however, confer a positive right to a successor tenancy. His Article 14 complaint therefore failed. The Rent Act and secure-tenancy regimes were materially different and their occupants were not relevantly analogous comparators. Although a close relative listed in section 113 was an analogous comparator, the distinction was objectively justified by the need to allocate scarce and valuable social housing according to a certain and legislatively defined scheme.

4. The court endorsed a four-stage Article 14 framework: Convention ambit, differential treatment, analogous situation, and objective and reasonable justification. The stages were a useful framework rather than rigid hurdles, since the considerations may overlap.

5. The possession order was compatible with Article 8(2). The statutory succession scheme itself supplied the justification for recovering possession from an occupier who had no right to remain. It was unnecessary for the council to prove, case by case, a particular need for the flat or for the county court to balance the occupier’s circumstances against general housing needs. The limited role of the possession court preserved the statutory scheme, subject to judicial review of a relevant public-law challenge and the residual exceptional circumstances identified in Sheffield City Council v Smart [2002] EWCA Civ 4.

• Court of Appeal (Civil Division): appeal dismissed: [2002] EWCA Civ 271.

• Wandsworth County Court: Judge Winstanley ordered the appellant to give possession of the flat to the council on 15 June 2001. The Court of Appeal upheld that order.