Dudley MBC v Mailley

The Court of Appeal dismissed the appellant's article 14 challenge to the Housing Act 1985 succession and assignment provisions. The court held that the appellant did not have a relevant "other status" for article 14 purposes because the proposed status relied on the tenant's capacity, which is too uncertain and changeable to found a stable status. The court also held that the appellant was not in a relevantly analogous position to a potential successor where the tenant dies at home or to a successor where the tenant retains capacity to assign the tenancy. Even if a status and analogy were established, the difference in treatment was justified as pursuing legitimate aims (protecting scarce social housing, preserving certainty and avoiding conflicts) by proportionate means. Finally, the court refused to read words into section 87(b) HA 1985 under section 3 HRA 1998, observing that such a change would cross a constitutional boundary and is for Parliament, not the courts.

This appeal concerned succession to a pre-2012 secure tenancy under the Housing Act 1985 and an allegation of unlawful direct discrimination contrary to article 14 of the European Convention on Human Rights read with article 8. The appellant, the adult daughter of the deceased secure tenant, had lived with her mother in a large council house but her mother moved permanently into residential care in 2016 and died in 2018. The council had served notice to quit when the tenant ceased to occupy the dwelling as her only or principal home; the tenancy therefore ceased to be secure and the appellant could not succeed.

Procedural history: Possession proceedings were heard in the Queen's Bench Division before Cotter J ([2022] EWHC 2328 (QB)), who rejected the appellant's article 14/8 defence. The appellant appealed to the Court of Appeal.

Relief sought and issues: The appellant sought a declaration that section 87(b) (and, in effect, section 91(3)(c)) HA 1985 unlawfully discriminated against her on the ground of an "other status" (her mother having been permanently removed from the home through ill-health and lacking capacity to assign the tenancy), and sought either a compatible interpretation under section 3 HRA 1998 or a declaration of incompatibility under section 4 HRA 1998. The court addressed: (i) whether the treatment fell within the ambit of article 8 (accepted); (ii) whether there was an "other status"; (iii) whether the appellant was in an analogous situation to the comparators relied on; (iv) whether any difference in treatment was justified; and (v) whether a reading-in remedy under section 3 HRA was permissible.

Reasoning: The court applied the established four-step article 14 approach. It accepted the ambit of article 8 but found no relevant status because the appellant's proposed status depended on the tenant's capacity, which is temporally specific and potentially reversible and therefore inadequate as a stable status for article 14 purposes (relying on authority including MOC). The court held the appellant was not in an analogous situation to successors where the tenant dies at home or where the tenant leaves but retains capacity, because those comparators rest on certain and permanent events (death or an effective assignment) whereas the appellant's position was uncertain and contingent. On justification, the court accepted legitimate aims including the protection of scarce social housing, the preservation of a fair allocation scheme and the need for bright-line rules to avoid uncertainty and conflicts; Parliament's choice attracted a wide margin of appreciation and was proportionate. Finally, the court concluded that reading in the appellant's proposed words into section 87(b) would cross a constitutional boundary and was for Parliament.

Appeal dismissed. The Court of Appeal held that (i) the appellant did not possess a sufficiently certain "other status" for article 14 because her formulation relied on the tenant's capacity which is temporally variable and uncertain; (ii) the appellant was not in an analogous situation to the comparators relied on; and (iii) even if discrimination were established, the statutory scheme was justified as pursuing legitimate aims (allocation of scarce social housing and legal certainty) by proportionate means. The court also refused to read words into section 87(b) HA 1985 under section 3 HRA 1998, as that would cross a constitutional boundary and was properly for Parliament.

Appeal from the Queen's Bench Division (Mr Justice Cotter) [2022] EWHC 2328 (QB) to the Court of Appeal, judgment given [2023] EWCA Civ 1246.