• Tuesday, November 21, 2023
Trinity Housing Barrister Summary of Dudley Metropolitan Council v Mailley [2023]

Trinity Social Housing Law barrister, Henry Percy-Raine has prepared the following summary of the recent Court of Appeal decision of Dudley Metropolitan Council v Mailley [2023] EWCA Civ 1246.

The facts

In 1965, Dudley Council let a three-bedroom property to the appellant’s mother (Mrs Mailley), who lived there with the appellant. It became a secure tenancy in 1980.

In 2016, Mrs Mailley became a permanent resident in a care home owing to her ill health. When she died, Mrs Mailley’s principal address was at the care home. She had not assigned the secure tenancy before losing the capacity to do so. Possession proceedings were brought against the appellant.

The decision at first instance

Cotter J rejected the appellant’s Equality Act, Article 8 and Public Law defences to the possession claim. Those decisions were not challenged on Appeal.

The appellant’s case was also that s.87(b) of the HA 1985 unlawfully discriminated against her because of her “status” under Article 14 ECHR in conjunction with Article 8. Cotter J found against the appellant on the question of whether there had been unlawful discrimination under Article 14 ECHR [20]. That conclusion was challenged on Appeal.

Cotter J concluded that the appellant had not succeeded to her mother’s secure tenancy on 16 October 2016, and ordered possession to be given of the property.

The decision of the Court of Appeal

Giving the leading judgment, Simler LJ considered that the appellant’s eviction did not amount to unlawful discrimination under Article 14:

  • In line with MOC v Secretary of State for Work and Pensions [2022] EWCA Civ 1, capacity is typically not “other status” because of its uncertainty and fluidity [34-35].
  • The extent to which the appellant was treated differently was not because of an “other status”. The reason why the appellant was not entitled to succeed her mother’s tenancy was solely due to the operation of section 87 of the HA 1985 [49].
  • In any event, the difference in treatment would be justified in this case. The broad aim of limiting succession rights strikes a balance between the interests of different groups, provides certainty for tenants, landlords and qualifying successors, and further ensures that scarce social housing returns to the pool and can be allocated to those who are most in need of it [63-64].

The Appeal was accordingly dismissed.