Austin v Mayor and Burgesses of the London Borough of Southwark

Under the original Housing Act 1985, a secure tenancy subject to a conditional possession order ended when the tenant breached the conditions. Although that interpretation was unsatisfactory, the Supreme Court declined to disturb settled authority after Parliament had enacted a carefully balanced, mainly prospective solution.

The former tenant’s statutory right to seek postponement of possession under section 85(2) survives death and may be exercised by the estate. The court retains jurisdiction until execution of the possession order. A successful application may revive the secure tenancy and preserves the court’s discretion to reach a just result.

A secure tenant became subject to a conditional possession order for rent arrears in 1987. He breached its terms but remained in the dwelling until his death in 2005. His brother sought appointment under rule 19.8 of the Civil Procedure Rules so that the estate could apply under section 85(2) of the Housing Act 1985 to postpone possession and revive the tenancy. He intended thereafter to claim succession to the tenancy.

The County Court dismissed the application. Appeals were dismissed by the High Court, [2008] EWHC 355 (QB), and the Court of Appeal, [2009] EWCA Civ 66.

The principal questions were whether the tenancy had ended upon breach of the possession order and, if so, whether the former tenant’s right to apply under section 85(2) survived his death. Further Convention and procedural issues arose only if necessary.

1. Appeal allowed unanimously. Lord Hope delivered the leading judgment, with which Lord Brown and Lord Kerr agreed. Lord Walker and Lady Hale agreed with his reasoning and conclusions.

2. The original section 82(2) of the Housing Act 1985 was capable of bearing the interpretation that a secure tenancy continued until the possession order was executed. That construction fitted the court’s extensive powers under section 85 and avoided the anomalous status of a “tolerated trespasser”. The contrary construction adopted in Thompson v Elmbridge Borough Council was nevertheless tenable.

3. The Supreme Court retained the House of Lords’ power under the Practice Statement to depart from precedent, but the power was to be exercised rarely and sparingly. The Court declined to depart from Knowsley Housing Trust v White or disturb the long-established Thompson rule. That rule had governed many thousands of cases, and retrospective reversal would create incalculable consequences for social landlords. Parliament had also enacted a considered scheme in the Housing and Regeneration Act 2008, creating replacement tenancies rather than retrospectively reviving the old tenancies. Reversal would undermine that scheme and contradict Parliament’s will.

4. Section 85(2) confers powers exercisable “at any time before the execution of the order”. Nothing in the statutory scheme withdraws the court’s jurisdiction when the former tenant dies. Whether the right can be exercised after death is a question of statutory construction, rather than whether the right is inheritable as an interest in land.

5. Brent London Borough Council v Knightley was wrongly decided and was overruled. A former secure tenant’s death does not prevent the estate from applying under section 85(2)(b) to postpone possession. This interpretation preserves the court’s discretion to do justice in all the circumstances and protects the landlord through the exercise of that discretion.

6. The Convention issues did not require decision. The appellant was appointed under rule 19.8(1)(b) to represent the deceased’s estate. His section 85(2) application was remitted to Lambeth County Court for determination.

1. United Kingdom Supreme Court: Allowed the appeal unanimously, overruled Knightley, appointed the appellant to represent the estate and remitted the section 85(2) application to Lambeth County Court: [2010] UKSC 28.
2. Court of Appeal: Dismissed the appeal from Flaux J: [2009] EWCA Civ 66.
3. High Court: Flaux J dismissed the appeal from the County Court: [2008] EWHC 355 (QB).
4. Lambeth County Court: HHJ Welchman dismissed the application for appointment to represent the deceased’s estate on 5 September 2007.