Secure Tenancy

November 2nd, 2016 by James Goudie KC


The Housing Act 1985 does not permit a second succession to a secure tenancy to members of a deceased secure tenant’s family. In Holley v Hillingdon LBC (2016) EWCA Civ 1052 the Court of Appeal considered when a proportionality defence can be raised to a possession claim.  Length of residence might form part of an overall ECHR Art 8 proportionality assessment.  However, it was unlikely to be a weighty factor.  Briggs LJ (with whom Arden and Underhill LJJ agreed) said:-

9. “… The general principles which govern the application of Article 8 to a claim for possession by a local authority of property forming part of its social housing stock from a person with no other right to be there are well settled, by the twin decisions of the Supreme Court in Manchester City Council v Pinnock [2011] 2AC 104 and Hounslow London Borough Council v Powell [2011] 2AC 186.

10. The application of those principles to a claim for possession against a surviving member of the family of a deceased secure tenant by succession occupying the property (after notice to quit) as a trespasser are fully set out and explained by this court in Thurrock Borough Council v West [2012] EWCA Civ 1435; [2013] HLR 5, in the judgment of Etherton LJ, at paragraphs 22 to 31. The general principles set out at paragraphs 22 to 26 need no repetition. In outline, the local authority will usually be seeking eviction as a proportionate means of achieving a legitimate aim because it will thereby vindicate its own unencumbered property rights, and enable it to comply with its duties in relation to the distribution and management of scarce social housing stock.”

“15. … I consider that the true analysis is as follows. First, 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. Secondly, 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.

16. Thirdly, 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 fourthly, and precisely because Parliament has lawfully excluded second succession to members of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance. A long period of residence may therefore form part of the circumstances, viewed as a whole, but is, in itself, of little consequence.”

“23. …  the concept of a discretionary succession policy is a misnomer. The provisions in Part IV of the Housing Act 1985 which deal with succession to secure tenancies do not require, or for that matter permit, local authorities to formulate and apply discretionary policies for conferring rights of second succession on persons living in the house of a secure tenant who is already a successor, upon that tenant’s death. There is, quite simply, no such entitlement. By contrast, Part VI of the Housing Act 1996 confers a wide discretion upon local authorities as to the allocation of social housing among persons applying for it, and requires that discretion to be exercised in accordance with an allocation scheme which it is required to formulate and publish.

24. A housing authority allocation scheme may make particular provision in relation to priority for members of the family of deceased secure tenants who do not have succession rights, but they are not required to do so. …”

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