EWCA Civ 189, 24 March 2017
Jackson and Underhill LJJ, and Sir Steven Tomlinson
The Court of Appeal has held that the difference in the residence requirements for statutory succession to secure tenancies between married couples (or civil partners) and unmarried couples living together as man and wife (or as civil partners) under the former s.87, Housing Act 1985, was not a breach of Art.14, European Convention of Human Rights, read with Art.8.
Miss Turley was the long-term partner of a Mr Doyle. In 1995, the respondent authority granted Mr Doyle a secure tenancy of a four-bedroom house, in which the couple lived together. In 2010, their relationship broke down and Mr Doyle left. In January 2012, he returned to the house when he was seriously ill. He died on 17 March 2012.
On an ordinary reading of the provisions of s.87, Housing Act 1985, Miss Turley was not entitled to succeed to the tenancy because, although she might be a member of Mr Doyle’s family by virtue of their living together as husband and wife (s.113, 1985 Act) she had not lived with Mr Doyle for the period of 12 months prior to his death (s.87(b), 1985 Act). Had Miss Turley been married to Mr Doyle she would have succeeded to the tenancy under s.87(a), 1985 Act.
On 1 April 2012, s.86A was inserted into the 1985 Act by the Localism Act 2011, removing, inter alia, the distinction between married and unmarried couples for the purpose of succession to tenancies granted after 1 April 2012.
The authority required Miss Turley to leave the house. She applied for judicial review arguing that: (i) s.87 should be “read down” to provide the same treatment for married and unmarried couples; alternatively, (ii) a declaration that s.87 was incompatible with Art.14, when read with Art.8, of the Convention. Miss Turley argued that married and unmarried couples were in an analogous position for the purposes of Art.14 and that the difference in treatment between them could not be objectively justified in respect of pre-1 April 2012 tenancies.
The High Court dismissed the claim. It was held that the residence requirement adopted in s.87 was objectively justified. In so doing, the court relied on Swift v Secretary of State for Justice  EWCA Civ 193,  QB 373, which concerns s.1(3)(b), Fatal Accidents Act 1976, in which it was held that a similar requirement for a period of co-habitation before one partner’s death was a proportionate means of achieving a legitimate aim, namely providing a reliable basis for assessing whether two people are living together as spouses or civil partners.
After Miss Turley was granted permission to appeal but before the hearing of the appeal Parliament passed the Housing and Planning Act 2016, which, when brought into force, will insert s.86G into the 1985 Act which will bring the succession provisions for pre-1 April 2012 secure tenancies into line with tenancies granted after that date. The new s.86G will only apply if the tenant dies after it comes into force.
Court of Appeal
The Court of Appeal dismissed Miss Turley’s appeal. Underhill LJ (with whom the other members of the court agreed) held that s.87 pursued the legitimate aim of seeking to provide a reliable basis for assessing whether two people were living together as if they were spouses or as if they were civil partners. The question was whether the 12-month requirement was manifestly without reasonable foundation, at . The “manifestly without reasonable foundation” test was that applicable to general measures of economic and social strategy (Carson v UK (2010) 51 EHRR 13) and, as held in Wandsworth London Borough Council v Michalak  EWCA Civ 271,  1 WLR 617, the allocation of social housing was pre-eminently one in which the courts should defer to the democratically elected legislature .
The court held that, what measure was used to determine the permanence of a relationship was part of the legislative task and that the 12-month requirement could not be said to be manifestly without reasonable foundation . The change in the statutory regime did not mean that the old regime had always been unjustifiable (applying R v Secretary of State for Work and Pensions, ex p. Hooper  UKHL 29,  1 WLR 1681); nor was it unjustifiable to decide not to make the changes retrospective (applying Ratcliffe v Secretary of State for Defence  EWCA Civ 39,  ICR 762). Swift was closely analogous to the present case: it was only necessary that a measure be proportionate, not that it be the only or even the best way of achieving the aim in question; it was legitimate to have a measure to demonstrate ‘permanence and consistency’ and it was legitimate to apply a bright-line criterion; and, Parliament was entitled to a broad margin of discretion .
Having determined that any discrimination was justified it was unnecessary for the court to consider whether couples living as man and wife (or as civil partners) were in an analogous position to married couples or civil partners.