Dudley Metropolitan Borough Council v Marilyn Mailley

A public law challenge to a local authority’s possession decision faces a high threshold. An Article 8 possession defence requires an assessment, at trial, of whether eviction is proportionate to the authority’s legitimate housing-management aim. Long residence and serious emotional consequences are relevant, but must be weighed against housing need, under-occupation, available alternative accommodation and the occupier’s likely adjustment.

For Article 14, the claimant must establish a status, analogous treatment and unjustified differential treatment. Incapacity of a third-party tenant is too uncertain to constitute the necessary status. The statutory succession scheme under the Housing Act 1985 pursues legitimate aims of certainty and fair allocation of scarce social housing. Section 3 of the Human Rights Act 1998 cannot be used to insert uncertain provisions crossing the constitutional boundary.

The Council sought possession of a three-bedroom council house occupied by the defendant, who had lived there for most of her life. The tenancy had been granted to her mother, who became permanently resident in a nursing home after losing mental capacity. The defendant therefore could not succeed under section 87 of the Housing Act 1985, and her mother could not assign the tenancy to her under section 91(3).

The defendant challenged the possession proceedings on public law grounds, relied on Article 8 proportionality, and argued that section 87 was incompatible with Articles 8 and 14 because it treated her differently from successors whose parent died at home or retained capacity to assign the tenancy. The central issues were whether the Council’s decision was unlawful, whether eviction was proportionate, and whether the statutory scheme could or should be read compatibly with Convention rights.

1. Public law challenge. The Council had failed initially to inform the defendant of the review procedure in its letting policy. However, a review was later offered, the defendant made no representations, and the review decision was open to the reviewing officer. In any event, a review in 2016 would very probably have produced the same result. The challenge therefore failed. The high threshold applicable to a public law defence was not met, applying Doran v Liverpool City Council [2009] 1 WLR 2365 and Leicester City Council v Shearer [2014] HLR 8.
2. Article 8. The court assessed proportionality at the date of trial. The Council pursued legitimate housing-management aims, including allocating scarce family accommodation to those in need. The defendant’s 57-year residence, emotional attachment, grief and likely short-term anxiety were significant. They were outweighed by the severe shortage of three-bedroom accommodation, substantial under-occupation, the property’s unsafe cluttered condition, the Council’s offers of suitable accommodation and support, and the reasonable prospect that moving would eventually assist the defendant to move beyond her grief. Eviction was proportionate and justified.
3. Article 14 and succession. The defendant’s proposed status depended on the changing and potentially temporary incapacity of a third-party tenant. That lacked the certainty required for Article 14 status. The proposed comparators were also not analogous: death or a voluntary assignment with capacity was certain and permanent, whereas incapacity might be temporary and could create conflict if the tenant recovered.
4. Justification and section 3. Section 87 pursued legitimate aims of certainty, protecting tenants from premature loss through incapacity or undue influence, and fairly distributing scarce social housing. The bright-line rule was proportionate. The proposed words could not be read into the section because they left unresolved whether capacity had been lost permanently and what would happen if it returned. Section 3 could not require that uncertain judicial amendment.
5. The possession claim succeeded. The parties were directed to agree the consequential order.