Succession rules favouring married couples and civil partners not discriminatory

Thursday 6 April 2017

Turley v London Borough of Wandsworth & Anor [2017] EWCA Civ 189, 24 March 2017

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Turley v London Borough of Wandsworth & Anor [2017] EWCA Civ 189, 24 March 2017

The appellant, Ms Turley, was the long term partner of Mr Doyle. Mr Doyle, prior to his death, had been the secure tenant of the respondent, the London Borough of Wandsworth. He resided at a flat in Battersea Park Road, London. His tenancy was granted prior to 1 April 2012 and was therefore subject to the provisions of the Housing Act 1985, prior to its amendment by the Localism Act 2011 which came into force on that date.

Together with their four children, Ms Turley and Mr Doyle had lived together at the flat since 1995, save for a period between December 2010 and January 2012 when, owing to a temporary breakdown in the couple’s relationship, Mr Doyle lived elsewhere. In January 2012 the relationship was restored and Mr Doyle moved back to the flat. In March 2012, following a period of illness, Mr Doyle died.

Under s87 Housing Act 1985 (since superseded in relation to secure tenancies in England by s86A Housing Act 1985, inserted by the Localism Act 2011) Ms Turley was not entitled to succeed to Mr Doyle’s tenancy. Though they had lived together ‘as husband and wife’, they had not resided together ‘throughout the period of twelve months ending with the tenant’s death’.

Had Ms Turley and Mr Doyle been married, the position would have been otherwise: the twelve-month residency requirement does not apply to those who are married or in a civil partnership, only to other ‘member[s] of the tenant’s family’ as defined by s113 Housing Act 1985.

Ms Turley sought a judicial review, arguing that the legislation discriminated between couples who were in a marriage or civil partnership and those who were not, and was thereby incompatible with her rights under Article 8 ECHR read with Article 14. Knowles J dismissed the application. Assuming without deciding that the partner of a deceased secure tenant was in an analogous position to the spouse or civil partner of a deceased secure tenant, the differential treatment was justified.

The Court of Appeal dismissed Ms Turley’s appeal. The 12-month requirement served a legitimate aim. Namely, it necessitated a degree of permanence in the relationship between the tenant and the family member who sought to succeed to his or her tenancy, in circumstances where – in contrast to instances of marriage or civil partnership – there had been no formal commitment to a relationship of permanence and consistency.

As such, it was necessary to consider whether the 12-month requirement was a proportionate means of achieving that aim. In the context of legislation governing access to social housing – as in the case of access to welfare benefits – this required the court to consider whether the measure was ‘manifestly without reasonable foundation’.

The 12-month requirement, the court acknowledged, was ‘something of a blunt instrument’. However, it could not be said that it was manifestly without reasonable foundation as a means of demonstrating the necessary degree of permanence and consistency. Accordingly, it was not necessary to decide whether a ‘common law spouse’ was in an analogous position to a married spouse for the purposes of Article 14.

Click here for the judgment.

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