Dudley Metropolitan Council v Marilyn Mailley

For direct discrimination under article 14, an alleged other status must be a characteristic independent of the impugned treatment. It cannot be defined merely by the statutory consequences of which the claimant complains. Decision-specific capacity to make a permanent tenancy assignment is too uncertain to form an essential part of such a status, since capacity may be regained.

In any event, a potential successor whose tenant has ceased permanently to satisfy the secure-tenancy condition is not in a materially analogous position to a successor of a tenant who dies while secure or validly assigns the tenancy. Any assumed difference was justified by the need for certain succession rules and the fair allocation of scarce social housing. A court cannot use section 3 of the Human Rights Act 1998 to create a new succession right contrary to the fundamental legislative scheme.

The appellant had lived with her mother in a three-bedroom council house for many years. Her mother moved permanently into a care home in 2016 and could not return. She consequently ceased to meet the tenant condition for a secure tenancy. The council served notice to quit and sought possession against the appellant, who remained in occupation.

Cotter J rejected the appellant’s defence and ordered possession in a judgment reported at [2022] EWHC 2328 (QB). The appellant did not challenge the findings on disability, housing policy, or the proportionality of eviction under article 8. She contended instead that the succession and assignment scheme in the Housing Act 1985 directly discriminated against her contrary to article 14, read with article 8, because her mother had lost capacity to assign before her death.

The central issues were whether the appellant had a relevant article 14 status, whether her comparators were materially analogous, whether any difference was justified, and whether section 3 of the Human Rights Act 1998 permitted a compatible reading of section 87(b).

Appeal dismissed. Lady Justice Simler gave the judgment, with which Lady Justice Elisabeth Laing and Lord Justice Baker agreed.

1. The appellant’s proposed status was impermissible. Article 14 requires a ground for differential treatment which is more than a description of the difference itself. Her inability to succeed resulted from the operation of the secure-tenancy scheme once her mother permanently ceased to occupy the house. It was not treatment on the ground of an independent status.

2. Further, decision-specific capacity could not provide the essential basis for the asserted status. Applying the reasoning in MOC [2022] EWCA Civ 1, capacity may change quickly and must be assessed in relation to a particular decision at a particular time. Its possible restoration, together with uncertainty about when occupation permanently ceases, could create conflict between tenant and potential successor and uncertainty for the landlord. The proposed reformulation by reference to disability was both impermissibly new on appeal and still depended fundamentally on capacity.

3. The proposed comparators were not in materially analogous situations. A tenant who dies at home or validly assigns a tenancy remains within the statutory conditions for a secure tenancy. Here, the tenant condition in section 81 of the Housing Act 1985 was no longer met. The appropriate comparator was a tenant who permanently left for a reason other than illness or disability without assigning; that person’s potential successor would be treated identically.

4. In any event, any assumed difference was justified. Parliament could pursue certainty through bright-line rules, avoid conflicts of interest, and balance limited family succession rights against the need to return scarce social housing to those in greater need. In this social and economic field the legislative choice attracted a wide margin of appreciation. There was no requirement that the justification advanced had been in the minds of policymakers when the provision was enacted.

5. Finally, section 3 of the Human Rights Act 1998 could not be used to add the proposed succession right to section 87(b). That would contradict the fundamental tenant condition and create a new right with potentially unintended consequences. It crossed the constitutional boundary between interpretation and legislation.

• Court of Appeal (Civil Division): Dismissed the appellant’s challenge to the possession order and upheld the conclusion that she had not succeeded to the secure tenancy.
• King’s Bench Division (Cotter J): Rejected the appellant’s article 14 defence, rejected the challenge based on the council’s policy and article 8, and ordered possession: [2022] EWHC 2328 (QB).