Birmingham City Council (Appellants) v. Walker (FC) (Respondent)

Under section 88(1) of the Housing Act 1985, the events making a secure tenant a statutory “successor” are confined to events occurring in relation to a secure tenancy. Events predating the creation of secure tenancy status do not exhaust the single permitted succession.

Accordingly, section 88(1)(b) applies where a person was a joint tenant under a secure tenancy and became its sole tenant. Earlier survivorship under a tenancy which had not yet become secure does not make that person a successor. This construction reflects the presumption against retrospectivity, the natural meaning of “successor” and the statutory purpose of preventing avoidance of the single-succession rule.

Mrs Betty Walker and her husband became joint tenants of a council house in 1965. She became the sole tenant by survivorship when he died in 1969, before secure tenancies were introduced by the Housing Act 1980. After her death in 2004, her resident son claimed to succeed to the secure tenancy under sections 87 and 89 of the Housing Act 1985.

Judge Hamilton held that Mrs Walker was a “successor” under section 88(1)(b), so that the statutory bar on a further succession applied. The Court of Appeal, comprising Mummery and Rix LJJ and Peter Smith J, reversed that decision: [2006] EWCA Civ 815; [2006] 1 WLR 2641.

The council appealed. The central issue was whether the words “was a joint tenant and has become the sole tenant” encompass survivorship before the tenancy acquired secure status.

1. Appeal dismissed unanimously. Lord Hoffmann delivered the leading speech. Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Mance expressly agreed with his reasons.
2. Per Lord Hoffmann, section 88(1) of the Housing Act 1985 refers only to events occurring in relation to tenancies which have become secure tenancies. Its references do not extend to events in the tenancy’s history before secure status arose.
3. A secure tenancy remains an orthodox estate in land, although statutory incidents override some contractual terms. It can therefore pass through common-law mechanisms, including survivorship and, subject to restrictions, assignment. Section 88(1)(b)–(f) supplements statutory succession under section 88(1)(a) to prevent the policy permitting only one succession from being avoided through those alternative methods of transmission.
4. That anti-avoidance purpose did not require pre-1980 events to count as a succession. Applying the provision to earlier conveyancing events would produce arbitrary distinctions unrelated to any sensible statutory purpose. A tenant’s future succession rights could otherwise depend on whether, before secure tenancies existed, the tenant had received an assignment, taken an original grant or survived a joint tenant.
5. Three considerations supported the construction adopted. First, the general presumption against retrospectivity meant that rights conferred by the legislation were not ordinarily destroyed by events preceding its enactment. Secondly, “successor” naturally meant a successor to a secure tenancy; the ordinary meaning remained relevant when construing the statutory definition. Thirdly, no rational purpose supported giving the definition retrospective effect.
6. Accordingly, section 88(1)(b) means that the tenant was a joint tenant under a secure tenancy and became the sole tenant under that secure tenancy. Mrs Walker became sole tenant before her tenancy was secure. She was therefore not a successor, and her son was not excluded on that ground from succeeding under sections 87 and 89.

1. House of Lords: The council’s appeal was dismissed unanimously: [2007] UKHL 22.
2. Court of Appeal: Mummery and Rix LJJ and Peter Smith J held that section 88(1)(b) of the Housing Act 1985 was confined to becoming sole tenant under a secure tenancy, reversing Judge Hamilton: [2006] EWCA Civ 815; [2006] 1 WLR 2641.
3. County Court: Judge Hamilton held that the provision encompassed Mrs Walker’s acquisition of the sole tenancy before secure tenancies were introduced.