Birmingham City Council v. Walker

This appeal concerned the construction of Part IV of the Housing Act 1985, in particular the definition of "successor" in section 88(1)(b) and its temporal ambit. The central question was whether the phrase "was a joint tenant and has become the sole tenant" applies to any instance in the tenant's past or only to events occurring in respect of a secure tenancy (that is, after the 1980 Act introduced secure tenancies).

The House held that the provision must be read as referring to becoming sole tenant under a secure tenancy and not to occurrences before the tenancy became a secure tenancy. The court relied on the presumption against retrospectivity, the ordinary meaning of "successor" as successor to a secure tenancy, and the absence of any rational purpose in giving the definition retrospective effect. Sections of the Housing Act 1985 relevant to the decision included section 88(1)(b), section 89 and section 86(1), and the court considered related provisions such as section 91(3)(c).

Background and facts:

• Mrs Betty Walker held a tenancy of a house owned by Birmingham City Council. She had originally been granted a joint tenancy with her husband in 1965 and became sole tenant on his death in 1969. That event predated the 1980 Act which introduced secure tenancies; her tenancy became a secure tenancy only when the 1980 Act took effect.
• When Mrs Walker died in 2004, her son Paul was living with her. Under the Housing Act 1985, a member of the tenant's family occupying the house at the time of the tenant's death may be "qualified to succeed" under section 87, and by section 89 the tenancy vests in such a person. However, section 88(1) excludes from qualification those who are themselves a "successor", and paragraph (b) defines a successor to include one who "was a joint tenant and has become the sole tenant".

Procedural history:

• The case reached the House of Lords on appeal from the Court of Appeal [2006] EWCA Civ 815; the Court of Appeal had construed section 88(1)(b) as limited to events occurring in respect of secure tenancies (reported at [2006] 1 WLR 2641). At first instance Judge Hamilton had taken the contrary view.

Nature of the claim and issues:

• The respondent sought to establish that he was qualified to succeed to the secure tenancy on his mother’s death. The key legal issue was whether the definition in section 88(1)(b) had retrospective effect so as to treat Mrs Walker as a successor because she had become sole tenant in 1969, before secure tenancies existed.

Court’s reasoning:

• The House reasoned that the policy of the 1980 Act limiting succession to once can be achieved without treating pre-1980 events as disqualifying. The court contrasted the nature of secure tenancies (an estate in land capable of common-law transmission) with statutory tenancies under earlier Rent Acts and explained why Parliament included methods of common-law transmission in the definition of "successor" to prevent circumvention of the one-succession rule.
• Nevertheless, the court concluded that paragraph (b) should be read as referring to joint tenancies and survivorship occurring in relation to secure tenancies, not to events that predated the creation of such tenancies. The court relied on (i) the presumption against retrospective destruction of statutory rights, (ii) the ordinary meaning of "successor" as successor to a secure tenancy, and (iii) the absence of any rational policy reason to penalise succession rights because of conveyancing history predating the secure tenancy.

Conclusion and relief sought:

• The House dismissed the council’s appeal, upholding the Court of Appeal's construction that section 88(1)(b) does not reach events which occurred before the tenancy became a secure tenancy; accordingly Mrs Walker was not a "successor" for the purposes of the 1985 Act and her son could qualify to succeed.

Appeal dismissed. The House held that the words "was a joint tenant and has become the sole tenant" in section 88(1)(b) of the Housing Act 1985 refer to becoming sole tenant under a secure tenancy (i.e. after the 1980 Act created secure tenancies). The court relied on the presumption against retrospectivity, the ordinary meaning of "successor" as successor to a secure tenancy, and the lack of any rational purpose for a retrospective construction.