Wandsworth London Borough Council v Michalak

The statutory definition of a secure tenant’s family exhaustively identifies those eligible to succeed to the tenancy. Limiting succession to specified close relatives is objectively justified by legal certainty and the allocation of scarce public housing. Rent Act tenants and secure tenants are not analogous comparators where their statutory regimes differ substantially.

Article 8 protects respect for a home even where its occupier has no legal entitlement to remain. In possession proceedings following the termination of a secure tenancy without a qualifying successor, justification may derive from the statutory scheme. The court need not undertake an individual balancing exercise in every case. Judicial review remains available to challenge the authority’s conduct, with a residual possibility of consideration in possession proceedings where wholly exceptional circumstances arise.

The council granted Jan Lul a secure tenancy of a two-bedroom flat. Jan Michalak, a distant relative whom Lul invited to occupy the second bedroom, lived there for over thirteen years. Lul supported him financially, and Michalak provided some practical assistance. The trial judge found that their relationship was principally one of convenience and respect, rather than a family relationship.

Following Lul’s death, the council terminated the residual tenancy by notice to quit and sought possession. Judge Winstanley ordered possession in Wandsworth County Court. Michalak appealed, claiming succession under sections 87 and 113 of the Housing Act 1985 and protection under articles 8 and 14 of the European Convention on Human Rights. The Secretary of State participated in the appeal. The central issues were whether the statutory family definition was exhaustive, whether its restrictions were discriminatory, and whether the court required individual justification before ordering possession.

Held, dismissing the appeal unanimously: Brooke LJ and Mance LJ delivered reasoned judgments. Park J expressly agreed with both.

1. Per Brooke LJ and Mance LJ, section 113 of the Housing Act 1985 exhaustively defined membership of a tenant’s family for succession under section 87. Parliament had chosen certainty over the potentially open-ended Rent Act concept. Michalak fell outside the definition. Section 3 of the Human Rights Act 1998 required no different construction because the scheme was Convention-compatible.

2. Per Brooke LJ and Mance LJ, the succession provisions fell within the ambit of article 8. Article 14 could apply without a separate violation of article 8, even where the Convention did not require the favourable treatment afforded to others. The four-question framework concerning ambit, different treatment, analogous circumstances and justification was useful, but its stages could overlap.

3. The Rent Act comparison failed. The unchallenged findings supported the conclusion that Michalak would not qualify as a family member under that legislation. Fitzpatrick v Sterling Housing Association provided no assistance on those findings. Independently, protected and statutory tenancies differed substantially from secure tenancies in succession, assignment, rent, possession and other rights. Larkos v Cyprus was distinguishable.

4. Per Brooke LJ, with Park J agreeing, a closer relative within section 113 was an analogous comparator. The difference was nevertheless objectively justified. Restricting succession preserved scarce, subsidised housing for allocation according to need while protecting the households of spouses and other close relatives. Parliament’s decisions in this field warranted substantial judicial deference. Brooke LJ also rejected an unduly narrow restriction of article 14 to personal characteristics.

5. Per Brooke LJ and Mance LJ, article 8 protected Michalak’s home despite his lack of title, but did not confer a right to housing or succession. Justification for possession could derive from the statutory scheme rather than separate evidence about each eviction. The individual balancing required in South Bucks DC v Porter arose in a different statutory and discretionary context. Following Sheffield City Council v Smart, imposing such an exercise here would undermine the succession scheme.

6. Per Mance LJ, with Park J agreeing, the school-licence authority allowing a public law defence was distinguishable because Michalak had no underlying private law right. Judicial review could challenge the authority’s policy, and possession proceedings could be adjourned pending its determination. A residual article 8 inquiry might arise where something wholly exceptional occurred after notice to quit. Whether the contractual termination in Qazi v Harrow LBC presented a different case was left open. The possession order stood.

• Court of Appeal: In [2002] EWCA Civ 271 , dismissed Michalak’s appeal unanimously and upheld the possession order.
• Wandsworth County Court: Judge Winstanley ordered possession on 15 June 2001, to be given by 13 July 2001. The separate claim for damages for use and occupation was adjourned and was outside the appeal.