Rejecting second succession based on length of occupation by Jane Talbot
A possession Order was made on 2 January 2014 in respect of a 3 bed/6-person property occupied by 2 brothers following the death of their grandfather on the basis that they did not have a right to succession as a statutory succession had already taken place upon the death of their grandmother – a succession by survivorship to their father and the law only provides for a single succession: s87 and 88 Housing Act 1985.
One brother (Holley) appealed the making of the possession order on the basis that he had a seriously arguable defence to the claim pursuant to Article 8 or 14, or a technical defence based upon the terms of the Notice to Quit. Holley argued that the property had been his home since 1979 and he had lived there all his life. His brother moved in after his grandfather’s death to support him as Holley suffered with anxiety, panic attacks and depression.
Hillingdon’s allocation policy at the time stated that a second succession would only be considered if they: (a) had a clear housing need and (b) be aged 65+ or 50+ with learning difficulties and (c) had lived at the property for at least 1 years or as long as the property had been available. Holley did not meet the age criteria.
Holley argued that the decision not to grant him a second succession amounted to a disproportionate interference with his right to respect for his home (Article 8) and that to make a decision based on his age amounted to discrimination.
At first instance, the Judge rejected these arguments stating that she was bound by the decision in Thurrock BC v West [2012] EWCA Civ 1435 with regard to the length of occupation (that case held it was not relevant) and permission to appeal was granted on that issue (but not sought on the Article 14 point) and a new public law argument that Hillingdon unlawfully fettered its discretion whether to grant Holley a secure tenancy by a succession policy which contain no residual discretion or, if it did, by ignoring it.
In relation to the Article 8 argument, the Court of Appeal held that a true analysis of the West case was:
1. A person seeking to rely on Article 8 will need to demonstrate a minimum length of residence in order to show that the property in question is their home, so that Article 8 is engaged.
2. The period of residence, however long, will not on its own be sufficient to found an Article 8 proportionality defence in the second succession context because, if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the Convention.
3. Length of residence may form part of an overall proportionality assessment, in the sense that all the circumstances of the case may need to be reviewed, and their effect considered in the aggregate, but.
4. Because Parliament has lawfully exuded second succession to embers of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance.
The Court of Appeal found that the Judge at first instance had considered the correct issues regarding Holley’s position and dismissed this ground of appeal.
On the second point in the appeal, the public law challenge, Holley sought to argue that the allocation policy was unlawful as it did not contain any residual discretion was also dismissed. Hillingdon’s scheme does allow for exceptional allocations for “effective management of social housing stock” and the Court avoided the question of whether this was good enough to act as residual discretion instead stating that, on the facts of this case and based upon a witness statement by Hillingdon setting out the shortage of 3 bed accommodation, “Mr Holley’s case for allocation of this house, however much it may generate human sympathy, simply came nowhere near that degree of exceptionality that gave him a real rather than a fanciful prospect of success under a residual discretion, however widely framed, as to allocation of public housing”.
This is a useful case, setting out guidance for housing providers dealing with claims for second successions and reiterating the point that all the circumstances must be looked at in each case on its own facts.
Author: Jane Talbot
