Turley v London Borough of Wandsworth & Anor

In allocating scarce social housing, Parliament may restrict succession by an unmarried cohabitant to relationships demonstrated by a minimum period of cohabitation. Such a bright-line condition pursues the legitimate aim of identifying relationships with sufficient permanence and constancy.

Because access to social housing is a matter of socio-economic policy, the condition is proportionate unless it is manifestly without reasonable foundation. A fixed period may lawfully be used even though it produces hard cases and a fact-sensitive inquiry might appear fairer. Later prospective reform does not establish that the former regime was unjustified or that Parliament was required to make the reform retrospective.

The appellant had been the secure tenant’s long-term unmarried partner. Following a period of separation, they resumed living together about three months before his death. Although she was a family member under section 113(1)(a) of the Housing Act 1985, she could not satisfy the 12-month residence condition in section 87.

Knowles J dismissed her claim on 8 December 2014. On appeal, she contended that treating unmarried partners less favourably than spouses infringed articles 8 and 14 of the Convention. She sought a Convention-compatible construction under section 3 of the Human Rights Act 1998, a fresh tenancy under section 6, or a declaration of incompatibility under section 4.

The central issue was whether the difference in treatment was justified. The respondents also disputed whether spouses and unmarried partners were in analogous positions.

1. Appeal dismissed. The 12-month residence condition was a justified means of regulating succession to scarce social housing and did not infringe article 14 read with article 8.
2. The condition pursued a legitimate aim. Succession could properly be confined to family relationships possessing permanence and constancy. Marriage and civil partnership involved a formal commitment of that character. For unmarried partners and other family members, a reasonably long period of living together could serve as objective evidence of the required quality.
3. The appropriate proportionality standard was whether the condition was manifestly without reasonable foundation. Conditions governing access to social housing concerned the allocation of limited public resources and were predominantly socio-economic. Parliament consequently enjoyed a wide margin of judgment, particularly because the distinction appeared in primary legislation.
4. The condition satisfied that standard. A minimum period of cohabitation was a rational objective marker of permanence. Twelve months was not an unreasonable period. Parliament could prefer a workable bright-line rule to individual inquiries, notwithstanding that the rule would inevitably cause hardship in some cases. Local authorities also retained power to grant a new tenancy where the statutory succession condition was unmet.
5. The later removal of the condition for newer tenancies did not demonstrate that the earlier scheme had been unjustifiable. Nor was Parliament required to make reform retrospective. It could preserve a clear division between existing and new tenancies to protect legal certainty and the rights and expectations of landlords, tenants and other family members.
6. Swift v Secretary of State for Justice [2013] EWCA Civ 193 strongly reinforced those conclusions. Brewster [2017] UKSC 8 concerned a distinct nomination condition and did not determine the justification of a minimum cohabitation period.
7. It was unnecessary to decide whether spouses and unmarried partners were in analogous positions. Underhill LJ delivered the judgment. Sir Stephen Tomlinson and Jackson LJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld Knowles J’s conclusion that the difference in treatment was justified.
2. High Court, Queen’s Bench Division, Administrative Court: Knowles J dismissed the appellant’s claim on 8 December 2014. No citation is stated in the judgment.