Austin v London Borough of Southwark

A right under the Housing Act 1985 to postpone possession and revive a terminated secure tenancy is personal to the former tenant. It is not inheritable and cannot be exercised after the tenant’s death by a family member or personal representative. Part IV requires a purposive and practical construction, subject to statutory limits. Civil Procedure Rules 1998 rule 19.8 cannot create a transmissible claim where none survives. Article 1 of the First Protocol is not engaged without an existing possession or sufficiently established, currently enforceable claim. Since the right lapsed on death, there was no deprivation and no proportionality assessment arose.

Alan Austin had been granted a secure tenancy by Southwark. After a possession order and subsequent non-compliance with its conditions, he became a tolerated trespasser but remained in occupation until his death. His brother, Barry Austin, claimed that he would have succeeded to the tenancy if it had still existed.

Barry applied under Civil Procedure Rules 1998 rule 19.8 to represent the estate in the possession proceedings and seek an order under the Housing Act 1985 postponing possession and reviving the tenancy. The county court rejected the application, and Flaux J dismissed the appeal in [2007] EWHC 355 (QB). The central issues were whether the revival right survived death, whether rule 19.8 applied, and whether Article 1 of the First Protocol required a compatible interpretation.

The appeal was unanimously dismissed. Arden LJ delivered the leading judgment. Longmore LJ agreed and gave additional reasons; Pill LJ agreed with Arden LJ.

1. Statutory position. Under section 82(2) of the Housing Act 1985, the secure tenancy ended when the tenant was required to give possession under the order, creating tolerated-trespasser status. Section 85 could nevertheless operate retrospectively to revive the tenancy. The court relied on Burrows v Brent LBC [1996] 1 WLR 1448 and the purposive and practical approach described in Knowsley Housing Trust v White [2009] 2 WLR 78.
2. Effect of Knightley. Brent London Borough Council v Knightley (1997) 29 HLR 857 was binding authority that the right to apply under section 85 was personal and was not an inheritable interest. It could not be exercised after the tolerated trespasser’s death by a family member or the estate. The reference in Knightley to the tenant and persons protected by section 85(5) was not a comprehensive list of all possible applicants, but it did not make the former tenant’s personal right transmissible.
3. Procedure and statutory survival. Rule 19.8 required an interest in the claim to exist at the date of death. The only possible subsisting claim was the section 85 application; the claim to defend the possession proceedings had merged into the possession order. The court rejected the argument that Knightley was decided per incuriam. The general survival rule in section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 could not preserve a right which the specific housing legislation made personal and non-surviving.
4. Convention argument. Article 1 of the First Protocol protects existing possessions or a sufficiently established, currently enforceable legitimate expectation, but does not create a right to acquire property. Because domestic law supplied no right to apply under section 85 after death, there was no possession or legitimate expectation and no interference. The court therefore did not reach proportionality or the exercise of the rule 19.8 discretion.
5. Additional reasoning. Longmore LJ considered that allowing the estate to apply would circumvent the statutory intention and distinguished Dean v Weisengrund, which concerned recovery of rent overpayments that survived for the benefit of the estate.

1. Court of Appeal (Civil Division): In Austin v London Borough of Southwark [2009] EWCA Civ 66 , the appeal was dismissed.
2. High Court (Queen’s Bench Division): Flaux J dismissed the appeal from the county court in [2007] EWHC 355 (QB).
3. Lambeth County Court: HHJ Welchman held that rule 19.8 did not apply and that an application under section 85 could not be made after the tenant’s death.