Birmingham City Council v Beech & Anor

A secure tenant who has ceased to occupy public-sector accommodation as her only or principal home may validly surrender or lose the tenancy, even where family members remain in occupation. An Article 8 defence to possession will succeed only in exceptional circumstances and must respect the housing authority’s responsibility to allocate scarce housing resources. A public-law challenge requires proof that the authority acted unlawfully in making or implementing its housing decision; disagreement with the weight given to competing housing needs is insufficient. The statutory restriction on further succession does not assist a proposed successor who independently fails the statutory residence, secure-tenancy or subsistence requirements.

Birmingham City Council sought possession of a three-bedroom council house after the tenant, Mrs Warren, moved permanently into residential care and signed a notice to quit. Her daughter, Mrs Howell, and Mrs Howell’s husband remained in occupation.

The defendants argued that the notice to quit was invalid because of Mrs Warren’s mental state, undue influence or unconscionable conduct. They also challenged the Council’s handling of requests for a joint tenancy and a direct allocation, raised public-law grounds, advanced an Article 8 and Article 14 defence, and sought a declaration that provisions of the Housing Act 1985 were incompatible with Convention rights.

1. Notice to quit. Mrs Warren had capacity to decide whether to surrender the tenancy. Mr Pumphrey explained that she could not retain the tenancy while living permanently in the care home, that Mrs Howell would not be able to remain if the tenancy ended, and that she could seek advice before signing. The omission of the short-term consequences of refusing to sign did not amount to improper pressure or unconscionable conduct. Applying the principles in Royal Bank of Scotland Plc v Etridge (No. 2) [2002] 2 AC 773, no undue influence was established. The notice was valid and the tenancy ended on 22 March 2010.
2. Public-law challenge. The Council’s requirement that a request for a joint tenancy be made by the existing tenant was lawful. The panel was entitled to treat the absence of a succession right as explaining why the proposed tenancy was discretionary, rather than as a reason independently barring consideration. It was also entitled to give substantial weight to under-occupation and the competing needs of families requiring three-bedroom accommodation. The panel had considered the defendants’ personal circumstances and community ties.
3. Human rights. Article 8 was engaged, but the circumstances were not exceptional. The court was not entitled to assume the Council’s allocation function or confer an unconditional right of occupation which the defendants otherwise lacked. The Article 8 and Article 14 arguments therefore failed. The court adopted the approach in Hounslow London Borough Council v Powell [2011] 2 WLR 287, Corby Borough Council v Scott [2012] HLR 23 and Thurrock Borough Council v West [2012] EWCA Civ 1435.
4. Succession. Although section 88(1)(b) treated Mrs Warren as a successor, Mrs Howell would in any event have failed the statutory requirements because she had not lived with Mrs Warren throughout the final 12 months, the tenancy had ceased to be secure when Mrs Warren moved into care, and it had ended before her death.
5. Judgment was entered for the Council. The counterclaim was dismissed, and the defendants were ordered to give up possession within 28 days.