John Howe v Brent London Borough Council

The Court of Appeal dismissed the Council's appeal and upheld the County Court judge's decision that a family member (B) who met the requirements of section 123(2) of the Housing Act 1985 at the time the secure tenant (A) served a section 122 notice is deemed, from that time, to share A's right to buy under section 123(3). The court held that the statutory consequences in Part V (in particular sections 118, 122, 123 and 138) arise when the conditions in section 123 are satisfied at the date of the section 122 notice, so that the family member becomes a deemed joint secure tenant for the purposes of Part V even if their qualifying status is only proved after A's death.

The court applied and followed London Borough of Harrow v Tonge and rejected the Council's reliance on Copping v Surrey County Council and other authorities as supporting a contrary temporal construction. The court construed "established" (in the context of the statutory process) as meaning proved or admitted for the purposes of enforcement, not as the moment when the right comes into existence.

Background and parties: The late Mrs Laura Howe, a secure tenant, served a section 122 notice on 11 May 2020 claiming the right to buy jointly with her son, John Howe. The Council admitted Mrs Howe's right to buy but denied that her son met the residence requirement under section 123(2). Mrs Howe died on 25 May 2020. Mr Howe brought proceedings under section 181 seeking a finding that he met the residence requirement at the time the section 122 notice was served and a declaration that he may be added to and continue the right to buy application dated 11 May 2020.

Nature of the claim / relief sought: A declaratory determination under section 181 of the Housing Act 1985 that Mr Howe satisfied the residence requirement at the time of the section 122 notice and could be added to and continue the right to buy application initiated by his mother.

Procedural posture: The County Court (Deputy District Judge Watterson) found that Mr Howe met the residence requirement and held that he was entitled to share his mother's right to buy; the Council appealed to the Court of Appeal. The appeal was referred to the Court of Appeal by HH Judge Luba KC pursuant to CPR 52.23(a) after permission to appeal had been given.

Issues framed by the court:

• Whether a family member who met the conditions of section 123(2) at the time the secure tenant served a section 122 notice becomes, from that time, a deemed joint secure tenant under section 123(3) for the purposes of Part V, even if the family member's qualifying status is not established until after the secure tenant's death.
• The temporal effect of the deeming in section 123(3) and the relationship between that deeming and the subsequent procedural steps (section 124 admissions/denials, section 125 valuation notice, and eventual conveyance under section 138).

Court's reasoning: The court held that the statutory language of section 123(3) is to be read naturally: if the family member met the requirements at the time the section 122 notice was given, the requirement to share the right was valid at that time and the two consequences in section 123(3) followed immediately — the right belonged to them jointly and they were to be treated as joint tenants for the purposes of Part V. The court applied London Borough of Harrow v Tonge and distinguished Copping on its facts and purpose. "Established" in the statutory scheme means admitted or proved for enforcement purposes; it does not create the substantive right. Once the family member was properly required to share the right at the date of the section 122 notice, he was deemed a joint secure tenant and, on his mother's death, the survivor could pursue and establish the previously shared right in proceedings under section 181.

Subsidiary findings and implications: The court rejected the Council's argument that a family member's parasitic right only comes into existence when the landlord admits it or the court establishes it. The judgment noted but did not decide other permutations (for example where the original secure tenant left the premises) and observed that section 136(6) may limit effects of succession in other circumstances but does not affect the temporal operation of section 123(3) here.

The appeal is dismissed. The Court of Appeal agreed with the County Court judge that where a secure tenant validly required under section 123(1)–(3) that a family member share the right to buy and the family member met the conditions in section 123(2) at the time of service of the section 122 notice, the family member is deemed from that time to be a joint secure tenant for the purposes of Part V and shares the right to buy; that status survives the secure tenant's death so that the survivor may establish and pursue the right under section 181 and the rest of Part V.

Appeal from the County Court at Willesden (Deputy District Judge Watterson, Case No. H01 W1262). Permission to appeal was given by HH Judge Luba KC and the appeal was referred to the Court of Appeal pursuant to CPR 52.23(a). Determination by the Court of Appeal: [2024] EWCA Civ 1444.