Judges reject appeal over succession to tenancy and meaning of “step-child”
The Court of Appeal has rejected a woman’s appeal against a judge’s order for possession of a property she had been residing in with her mother’s partner before he died, after she applied to the council to succeed to the tenancy on the basis that she was his stepdaughter.
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Lord Justice Lewison, with whom Lord Justice Nugee and Lady Justice Elisabeth Laing agreed, concluded that the judge was right to reject the meaning of "stepchild" for which the claimant argued at trial, and that she was therefore not qualified to succeed to the tenancy under the council’s policy.
The issue on appeal was whether Ms A was entitled to succeed to a secure tenancy granted to Mr S. Her mother (Ms P) had been in an intimate relationship with Mr S, but they never married or entered into a civil partnership.
Lord Justice Lewison said: “Whether [Ms A] is entitled to succeed to [Mr S’s] tenancy depends on the meaning of ‘stepchild’ in Islington LBC's policy on succession to secure tenancies.
“HHJ Bloom held that it meant a child of a person's spouse by previous marriage or civil partnership. On the basis of that interpretation [Ms A] fell outside the scope of the policy.”
The council had let the property to Mr S under a secure tenancy on 16 July 2015. He died on 31 March 2021.
He had been in an intimate relationship with Ms P since 2011, although they maintained separate addresses. Ms A is Ms P's biological daughter.
Lord Justice Lewison said: “[Ms A’s] evidence was that from about 2011, when she was 13, [Mr S] became what she considered to be her father figure. She moved into the property to live with [Mr S] in 2018, and remained living with him until his death, latterly as his carer.
“Her evidence was that [Mr S] treated her as his daughter. There was also other evidence that [Ms A] and [Mr S] had a loving and caring relationship, analogous to that of stepfather and stepdaughter.”
Following Mr S's death, Ms A applied to the council to succeed to the tenancy, on the basis that she was Mr S's stepdaughter.
The council refused her application because Mr S and Ms P had never married or entered into a civil partnership. In their letter a Tenancy Officer stated:
"You applied for succession as [Mr S’s] stepchild. For the purposes of succession, a stepchild is:
a child born to or legally adopted by your spouse before your marriage whom you have not legally adopted. In view of the fact that [Ms P] and [Mr S] never married – you cannot succeed to the tenancy." (original emphasis)
The council began proceedings for possession. They were defended by Ms A on the ground that Islington had misinterpreted its policy and that she was entitled to succeed.
In an extempore judgment HHJ Bloom rejected that defence and made an order for possession.
Outlining relevant legislation to the appeal, Lewison LJ said: “In relation to secure tenancies in England granted after 1 April 2012 the statutory right to succeed is contained in section 86A of the Housing Act 1985. That section relevantly provides:
"(1) A person ("P") is qualified to succeed the tenant under a secure tenancy of a dwelling-house in England if—
(a) P occupies the dwelling-house as P's only or principal home at the time of the tenant's death, and
(b) P is the tenant's spouse or civil partner.
(2) A person ("P") is qualified to succeed the tenant under a secure tenancy of a dwelling-house in England if—
(a) at the time of the tenant's death the dwelling-house is not occupied by a spouse or civil partner of the tenant as his or her only or principal home,
(b) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and
(c) P's succession is in accordance with that term.
…
(5) For the purposes of this section, a person who was living with the tenant as if they were a married couple or civil partners is to be treated as the tenant's spouse or civil partner."
The Court of Appeal judge observed that Ms A did not fall within the scope of this section; and therefore, had no statutory right to succeed to the tenancy.
He continued: “Islington's policy is broader than the statutory right to succeed. The relevant part of the policy states:
"The following relatives would no longer have an automatic right to succeed but the council would allow them to succeed if they have been living in the property for 12 months before the death of the tenant and the property is suitable for their housing needs under the council's allocations policy.
Parent
Grandparent
Child
Grandchild
Sibling
Uncle or Aunt
Nephew or Niece
A half brother or sister.
“It should be noted that recent case law has decided that a foster child is not counted as a child for the purposes of succession and that only blood relations (including step-children and illegitimate children) should be considered for succession in future. This change takes effect from 1st July 2013."
Lewison LJ observed: “The council’s policy was based on the provisions relating to the right to succeed contained in sections 87 and 113 of the 1985 [Housing] Act, even though they no longer apply to tenancies granted after 1 April 2012.
“Section 87 limited the right to succeed to a person's spouse or civil partner or to a member of the tenant's family (as defined by section 113) who had resided with the tenant throughout the period of 12 months ending with the tenant's death.
“Section 113 relevantly provides:
"(1) A person is a member of another's family within the meaning of this Part if—
(a) he is the spouse or civil partner of that person, or he and that person live together as if they were a married couple or civil partners, or
(b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
(2) For the purpose of subsection (1)(b)—
(a) a relationship by marriage or civil partnership shall be treated as a relationship by blood,
(b) a relationship of the half-blood shall be treated as a relationship of the whole blood,
(c) the stepchild of a person shall be treated as his child, and
(d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father."
Lewison LJ added: “It will be seen that both section 113 and the policy refer to a person's ‘stepchild’.”
Considering the arguments submitted on appeal, Lewison LJ noted that the council’s policy is “designed to be capable of implementation by a tenancy officer with the minimum of investigation”.
He said: “To adopt the meaning of ‘stepchild’ argued at trial is likely to lead to costly and time-consuming investigation or even litigation as to who is and who is not a stepchild. That is the sort of situation which the policy is designed to avoid. HHJ Bloom made that point at [43] and I agree with her. The judge continued at [44]:
"If one reads section 113 there is a clear differential drawn between those who live together and those who are married or civil partners. In subsection (1) (a) a person who is in a direct relationship with the deceased can establish themselves as a successor. In relation to more distant relationships, such as children or parents et cetera in subsection (1) (b) it is notable that it is only a relationship by marriage or civil partnership that is to be treated as a relationship by blood. The subsection does not suggest, for instance, that if people live together their offspring will be treated as blood relations i.e. that such a person would be a niece. Why, then, should a stepchild be in a different position?"
Lewison LJ concluded that the judge was right to reject the meaning of ‘stepchild’ for which Ms A argued at trial.
Secondly, considering whether the council’s policy amounted to “unlawful discrimination”, Lewison LJ noted that the argument for Ms A was that she had a "status" in that she was the biological child of one of two adults who were in an intimate relationship but were not married to each other, in contradistinction with a biological child of an adult who is married to (or in a civil partnership with) their partner.
Considering this submission, Lewison LJ said: “I am willing to assume (without deciding) that the ‘status’ of [Ms P and Mr S] also confers ‘status’ on [Ms A]. But as we shall see, that may not matter.
“The second question is whether there is a difference in treatment between a person with [Ms A's] status and a person in an analogous or relevantly similar situation. The comparator here is the biological child of one of two persons in an intimate relationship who are married (or in a civil partnership).
“The discrimination alleged must be ‘on the ground’ of that status. Islington argued that any difference in treatment is not on the ground of [Ms A's] status but on the ground of the arrangements between her mother and Mr S. Their choice not to marry means that [Ms A] is not in an analogous situation to a person whose biological parent did decide to marry or enter a civil partnership.
“I do not consider that the fact that the arrangements between [Ms P and Mr S] are the cause of the differential treatment is of itself fatal to this part of [Ms A's] case.”
Accordingly, Lewison LJ found there was “no ground on which an appeal court could interfere with the judge's assessment of Islington's policy as ECHR-compliant”.
Dismissing the appeal, he concluded: “There have been a number of cases in which it has been argued that where a person is not entitled to succeed to a tenancy their Convention rights have been infringed. None has so far succeeded. This is another such case.”
Lord Justice Nugee and Lady Justice Elisabeth Laing agreed.
Lottie Winson
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