Over Taylor Biggs

Under the Housing Act 1985, a person may succeed to an Assured Tenancy if he or she occupies the dwelling as his or her only or principal house at the time of the Tenant's death and either the survivor is the Tenant's spouse or a member of the Tenant's family and has resided with the Tenant throughout the period of 12 months ending with the Tenant's death, unless the Tenant was himself or herself a successor.

A Tenant's spouse will therefore be entitled to succeed, provided he or she was occupying the dwellinghouse as his or her only or principal home when the Tenant died.  A spouse here means a married partner, although it seems likely, following later decisions, that same-sex couples living together as man and wife must be treated equally to married couples, to avoid discrimination.

A member of the Tenant's family will qualify to succeed only if he or she has resided with the Tenant for the requisite 12 months.  A member of the family is defined as a spouse, a person who lives with the Tenant as man and wife, parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew and niece.  It also provides that "half-blood" relationships are to be regarded to be "whole-blood" relationships.  Step-children are to be treated as children and illegitimate children are to be treated as legitimate.

The residence requirement for family members does not demand that the person living with the Tenant lived with the Tenant in the property to which that person is seeking to succeed.  For example, where two brothers lived together for more than two and a half years and then moved to a new house, one brother was entitled to succeed to the secure tenancy when the other brother died 10 days after the move.

The Housing Act permits only one succession.  If the Tenant is already a successor, no-one is entitled to succeed to the tenancy.  If the Tenant was a joint tenant and therefore became the sole Tenant on the other's death, the survivor will be deemed to be a successor already and, therefore, no further succession will be possible.

In one of the recent cases, the Tenant had been suffering from a chronic illness that proved to be terminal.  The tenancy began in 1983.  The Tenant's brother claimed that he had moved in to live with his brother in October 2003 and became his full-time carer.  This was not accepted by the London Borough of Southwark.  No finding was made that this was, in fact, the case.  It was unnecessary for the purposes of this particular appeal.

The Tenant was in arrears of rent and the Council obtained a Possession Order.  The Possession Order was suspended, provided the Tenant paid arrears by March 1987.  However, the Order for Possession was never enforced.  The Tenant remained in possession, paying rent plus an amount towards the arrears, until his death 18 years later in 2005.

The London Borough of Southwark sought a Possession Order on the Tenant's death.  The brother was applying to the Court to postpone the date for possession under the earlier Court Order, which would have had the effect of reviving his late brother's tenancy.  The brother would then have to show that he was resident in the premises for 12 months ending with his brother's death.  If that were found to be the case, he would then be entitled to succeed under the 1985 Act.

The Supreme Court allowed the brother's appeal, finding that his deceased brother's right to apply to the Court to postpone the enforcement of the Order and revive the tenancy could survive death and therefore enable the tenancy to be transferred to his brother as a successor.  The case was therefore returned to the local County Court to determine the validity of the application to postpone the Possession Order.

In the other case involving Sheffield City Council, a foster child was held not entitled to succeed on the death of his foster mother.  The foster mother had been granted a secure tenancy by the Council in 1986 on the express basis that she and her "son" would occupy the property.  However, whilst the foster son lived with his foster mother, no attempt was made to adopt him.  He moved out of the property for a while. 

In 2002 he moved back to care for his foster mother who was suffering from cancer.  When she died, the foster son had been living at the property for just under a year as her sole carer.  The Council served a notice to quit and then began possession proceedings.  Although he appealed, he moved out of the property and in 2005 it was re-let to another couple under a secure tenancy.

Here the Court of Appeal decided that the foster son did not qualify as a member of the Tenant's family because he did not fall within the defined categories set out in the Housing Act 1985.  Had he been adopted then he would have been entitled to succeed to the tenancy.

Other more tenuous family relationships have also been rejected by the Courts.  This reflects the striking of a balance between granting tenants and their successors' security of tenure whilst at the same time ensuring that social housing is allocated in a fair and just way.  Extending the qualifying successors widens the scope for others to make succession claims.  For example, a brother-in-law of the Tenant's first cousin once removed, whilst affectionately known as "uncle", was unsuccessful in persuading the Court he was a member of the Tenant's family for these purposes.

Austin v London Borough of Southwark 2010  /  Sheffield City Council v Wall 2010