In Turley v Wandsworth LBC [2017] EWCA Civ 189 the Court of Appeal held that a condition in the Housing Act 1985 s.87(b) which required, up until 1 April 2012, that the long-term partner of a secure tenant had to have resided with the secure tenant throughout the 12-month period prior to the secure tenant’s death in order to succeed them, was not manifestly without reasonable foundation. Even if the situations of common law spouses and married or civil partnership spouses were analogous for the purpose of ECHR art. 14, the difference in treatment between them was justified and proportionate.
As regards justification, local authority secure tenancies are a valuable and limited resource. Although it has long been policy to grant a limited right of succession to family members for whom the property had also been their home, regard has also to be had to the interests of those on the waiting list and of local authorities in making best use of housing stock. It had therefore been policy to require a degree of permanence in the relevant relationship. That requirement was inherently satisfied in the case of spouses who had entered into a legal marriage or civil partnership. However, there was no such formal commitment in the case of a common law spouse or other family member of the kind defined in s.113. As part of that balance of interests, it was legitimate to seek to limit rights of succession to family members whose relationship was of a permanent character. It was also legitimate, subject to the issue of proportionality, to treat that requirement as sufficiently satisfied in the case of legal spouses, but not by other relationships which did not involve the same formal commitment.
As to proportionality an important preliminary question concerns the appropriate standard of review in assessing proportionality. The local authority’s position was that the difference between legal spouses and common law spouses represented a legislative choice of a kind where the Courts had always recognised a wide margin of appreciation. T argued that the 12-month condition was not itself a matter of social or economic policy, but merely an “evidential tool”. The imposition of a condition which was essentially ancillary might not require the same degree of deference to the legislator’s judgment as the substantive condition to which it attached. However, that distinction was not applicable in the instant case. What might be regarded as the substantive condition, namely that the relationship should have the necessary degree of permanence and constancy, was for practical purposes undefinable save by the adoption of an objective measure. The choice of that measure was therefore an essential part of the legislative task. The imposition of the 12-month condition was the best available objective demonstration that a relationship had the necessary permanence and constancy If the period was much shorter than 12 months, its value as a marker of a permanent relationship would be slight. It was something of a blunt instrument, but that was very often the case with a bright-line rule, although local authorities were not precluded from granting a tenancy to a person in such circumstances if it considered it right to do so. The fact that the statutory regime had changed did not mean that the old regime had always been unjustifiable. The changes did not derive from any acknowledgment that that was the case. Whether the change should have been retrospective was also a decision on which the legislature was entitled to a wide margin of appreciation. The Government considered that the package of changes to succession rights should apply prospectively only, to avoid unsettling legal rights and expectations. Such an approach was not manifestly without reasonable foundation.