Trinity Housing Barrister Summary of Dudley Metropolitan Borough Council v Mailley [2022]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent case of Dudley Metropolitan Borough Council v Mailley [2022] EWHC 2328 (QB)

Amongst other matters, this case concerned the effect on the right of succession to a residential property where the tenant, who lacked mental capacity, had spent a period of time in residential care.

Facts

In 1965, the Defendant’s mother (Mrs Dorothy Mailley) commenced a tenancy at No.19, Uffmoor Estate, West Midlands (“No.19”). In 1980 Mrs Mailley became a secure tenant of the property. The Defendant, save for a short period of time at university, resided at the property as her principal address (in total for 57 years).

In 2016, Mrs Mailley started residing in a Nursing Home (initially on a respite basis). In October 2016, it became clear Mrs Mailley no longer had any realistic prospect of returning to No.19. From this time she ceased to occupy No.19 as her only or principal home. By this time Mrs Mailley lacked capacity. In November 2016, a notice to quit was served on Mrs Mailley. In January 2018 the Claimant began possession proceedings. Prior to proceedings and until the trial offers of alternative accommodation were made to the Defendant which she had not accepted.

The Defendant was found to suffer from (i) prolonged grief, intense emotional pain and clinically significant distress related to the death of her mother, and (ii) mild depression, but not to have a disability within the meaning of section 6 Equality Act 2010. Further, her difficulties with hoarding were due to a number of different causes but not linked to depression or substantially to grief. It was also found that moving from No.19 would cause her significant distress and anxiety but there was also a reasonable chance the change could provide beneficial effects to enable her to move on from her sense of grief [135].

Decision

The Claimant’s case for possession was that from October 2016, Mrs Mailley ceased to occupy No.19 as her only or principal home; as such her tenancy ceased to be secure. As a result of the notice to quit, her tenancy came to an end and thereafter the Defendant was a trespasser in the property.

Four principal defence points were raised: Article 8 and 14 rights violations, the public sector equality duty, Public Law challenged, although the latter two were not pursued or found to clear the high hurdle of being established on the facts respectively.

The Article 8 point was raised in the context that the eviction of the Defendant would constitute a violation of her rights. Three points were relied upon: the Defendant’s mental health, her length of occupation and the potential impact of eviction. The question for the court was whether the eviction of the Defendant was proportionate to the Claimant’s legitimate aim [151].

The threshold on proportionality is a high one [153]. A central consideration was the period of time that the Defendant had lived in the property. The court also considered the fact the Defendant lost the right to succession due to her mother moving into a care home [155]. Overall, the eviction was considered justified under Article 8. Such would mean a family could get suitable accommodation as would the Defendant, this would also be safer for her and carry beneficial effects in terms of her sense of grief [161].

In respect of Article 14, it was argued that when section 87 of the Housing Act 1985 was properly interpreted in accordance with section 3 of the Human Rights Act 1988, the Defendant should be entitled to succeed to her mother’s secure tenancy. The four questions raised in R (Stott) v Secretary of State for Justice [2018] 3 WLR 1831 were considered in response to the incompatibility argument. On the second question of whether the treatment was “on the ground of some ‘status’?”, it was held that the lack of capacity of the Defendant’s mother could not be sufficiently certain to provide “status” for an Article 14 claim; it also being noted that ‘status’ requires a characteristic which has the quality of reasonable certainty [183]. It was further considered that the Article 14 argument would also have failed on the third and fourth questions, had it not failed on the ground of status [187/198].

Whilst overall it was noted that had the Defendant’s mother died at home any time before it became clear she no longer had any realistic prospect of returning to No.19, the Defendant would have been entitled to succeed her mother’s tenancy pursuant to s.87 HA 1985, or at any time when Mrs Mailley had capacity she could have assigned the tenancy as a qualifying successor under s.91(3)HA 1985, it was ultimately considered that s.87 HA 1985, as drafted, provides the legitimate aim of certainty which it achieves by proportionate means [198].