Sheffield City Council v Wall (Personal Representatives of) & Ors

A foster child who has not been formally adopted is not a “child” or other family member qualified to succeed to a secure tenancy under sections 87 and 113 of the Housing Act 1985. Section 113 establishes closed categories and excludes the flexible meaning of “family” applicable under Rent Act legislation.

That exclusion engages the foster child’s rights under articles 8 and 14 of the Convention. It is nevertheless objectively and reasonably justified. Parliament may balance security of tenure against the systematic allocation of scarce public housing and adopt precise categories to promote certainty.

Following the death of a secure council tenant, her long-term foster son claimed to have succeeded to her tenancy. Although treated throughout his life as her son, he had never been formally adopted. The council initially obtained possession, and the property was re-let to another couple. That possession order was subsequently set aside by the Court of Appeal in [2006] EWCA Civ 495.

On rehearing, the county court accepted that the foster son met the residence requirement but dismissed his claim for possession against the new tenants. He appealed. The principal issue was whether sections 87 and 113 of the Housing Act 1985, read with articles 8 and 14 of the Convention, permitted an unadopted foster child to succeed as a member of the tenant’s family. The new tenants cross-appealed against the refusal to award their costs against the council.

1. Appeal and cross-appeal dismissed. Section 113 of the Housing Act 1985 defines exhaustively who is a member of another person’s family for the secure-tenancy provisions. Its emphasis upon specified relationships, together with its express extensions for stepchildren and illegitimate children, leaves no scope for treating an unadopted foster child as a “child”. The flexible construction of “family” under legislation which leaves the term undefined did not apply: paras 20–29.
2. Articles 8 and 14 were engaged, and the court assumed that the difference in treatment arose from the appellant’s birth or status as a foster child. The exclusion was nevertheless objectively justified. Parliament was entitled to balance security of tenure against the systematic allocation of scarce local-authority housing and to adopt precise categories which promote certainty. The statutory scheme was compatible with the appellant’s Convention rights, so section 3 of the Human Rights Act 1998 did not require an extended construction: paras 30–33.
3. If the appellant had been a qualifying child, section 89(2) would automatically have vested the deceased tenant’s secure tenancy in him at her death. The county court was wrong insofar as it held otherwise. That error did not affect the result because the appellant was outside section 113: para 36.
4. The court discussed, without formally deciding, the consequences of executing a possession order, re-letting the property and later setting the order aside. A secure tenancy is an orthodox contractual estate carrying statutory protection. The court doubted that an improperly granted possession order necessarily and irrevocably terminates its contractual and proprietary elements. It also considered that a later lease may operate as a concurrent lease and assignment of the reversion, subject to the required formalities: paras 46–62.
5. The earlier conclusion in Osei-Bonsu that a notice to quit could be served on the original local-authority landlord was reached per incuriam. On the assumptions underlying the court’s non-dispositive discussion, the concurrent lessees would be the immediate landlords and the proper persons to give or receive a notice terminating the earlier periodic tenancy: para 61.
6. The council had supported the new tenants and had acted reasonably in re-letting the property when no stay of the original possession order had been obtained. There was no good reason to require it to pay their costs. Their cross-appeal was therefore dismissed: paras 63–67.

1. Court of Appeal (Civil Division): By [2010] EWCA Civ 922, dismissed the foster son’s appeal and the new tenants’ cross-appeal.
2. Sheffield County Court: His Honour Judge Bullimore dismissed the council’s possession claim against the foster son and also dismissed the foster son’s possession claim against the new tenants. He refused the new tenants’ costs application against the council.
3. Court of Appeal: By [2006] EWCA Civ 495, set aside Recorder Ake’s possession order and remitted the matter to the county court for rehearing.
4. Sheffield County Court: Recorder Ake held that the council was estopped from denying that the foster son was a family member, but found that the residence requirement was unsatisfied and ordered possession.