Turley, R (on the application of) v London Borough of Wandsworth & Anor

Section 87 of the Housing Act 1985 lawfully required an unmarried or unregistered partner seeking succession to certain secure tenancies to show 12 months’ residence with the tenant. The condition pursued the legitimate aim of reliably identifying relationships sufficiently permanent to justify succession. Its use was proportionate, despite the absence of an equivalent condition in some private-sector tenancy legislation and its prospective removal in England. Legislative differences between England and Wales, and between earlier and later tenancies, attracted considerable respect as social-policy choices. Section 3 of the Human Rights Act 1998 could not be used to rewrite section 87, and no declaration of incompatibility was justified.

The claimant lived with her long-term partner, the secure tenant of a council flat, and sought to succeed to the tenancy after his death. The tenancy had been granted before 1 April 2012. The claimant and tenant had lived together for many years, but their relationship had temporarily broken down and the tenant had lived elsewhere for approximately 13 months before returning shortly before his death.

The Council decided that the claimant did not satisfy section 87 of the Housing Act 1985, which required a person living with the tenant as a spouse or civil partner to have resided with the tenant throughout the 12 months ending with the tenant’s death. The claimant challenged that requirement under Articles 8 and 14 of the Convention, relying on sections 3 and 4 of the Human Rights Act 1998, and also alleged irrationality.

1. Claim dismissed. The claimant was not entitled to the relief sought. The court considered the alleged delay but decided the claim on its merits.
2. Article 14 required a difference in treatment between persons in analogous situations and asked whether that difference had objective and reasonable justification. The nature of the status relied upon affected the margin of appreciation. Social-policy judgments expressed in legislation, particularly in national housing policy, attracted additional respect.
3. The statutory distinction between spouses or civil partners and persons living together as if married or as if civil partners was assumed to amount to differential treatment. It was unnecessary to decide whether the groups were in an analogous position because the distinction was justified in any event.
4. The statutory concept of living together as spouses or civil partners already required an evaluative assessment of the relationship, including its marriage-like intimacy, stability, permanence and social and financial interdependence. The 12-month condition served the legitimate aim of making that assessment more reliable. It was a blunt instrument, but the period selected was not unduly long and bore a reasonable relationship of proportionality to the aim pursued.
5. The absence of the condition from the Rent Act 1977 and the Housing Act 1988 did not make the housing legislation unjustified. Nor was the conclusion undermined by the prospective removal of the condition in England. Retrospective alteration of property rights would have been significant, particularly because the legislative change also narrowed other succession rights. The different treatment of England and Wales was a social-policy choice for the relevant legislature.
6. Section 3 of the Human Rights Act 1998 did not permit words to be read into section 87 to remove the condition. In the circumstances, no declaration of incompatibility was appropriate. The irrationality challenge was outside the permission granted and, in any event, had no merit because the Council had applied the law according to its terms.

First-instance judicial review in the Administrative Court. Permission was granted by Foskett J on 19 March 2014; the substantive claim was dismissed by Mr Justice Knowles.