Important Court of Appeal judgment on succession provisions  

Sheffield CC v Wall, Ingham and Butler [2010] EWCA Civ 922, The Times Law Reports 9/9/10

> judgment

Mr Wall was the foster son of the original secure tenant. He had been fostered by her when he was 6 months old and had lived with her for the whole of his life up to her death but had never been formally adopted by her.

On her death he sought to resist the claim for possession brought by the council on the basis hat he was entitled to succeed, because he satisfied the residence requirement (having resided with his mother for the 12 month period prior to her death) and because whether or not as a foster son he fell within the class of persons entitled to succeed, the council had written to his mother during her lifetime and told her that he could – and thus they were estopped from denying that he could succeed.

Although the Recorder at the initial trial accepted the estoppel argument the council had contended that Mr Wall did not satisfy the 12 month residence condition and the Recorder accepted this. Mr Wall appealed to the Court of Appeal, but (crucially) did not seek a stay of execution, and prior to the hearing of his appeal he was evicted. The council then re-let the property to Mr Ingham and Ms Butler. However, Mr Wall succeeded in the Court of Appeal in arguing that the Recorder had erred in his handling of issue of the 12 month residence issue – the Court giving a fairly clear indication that it felt hat Mr Wall had indeed satisfied the residence test for the whole of the relevant period (see Sheffield CC v Wall [2006] EWCA Civ 495). The matter was remitted to the county court to resolve, given that Mr Ingham and Ms Butler were now living in the property.

Mr Wall applied to have the matter restored and the Council then changed its position and informed him that it no longer disputed his assertion that he satisfied the residence requirement for succession. Mr Wall then applied to join Mr Ingham and Ms Butler and issued his own claim for possession against them. Those issues came before HHJ Bullimore on 30th September 2008 and on 3rd March 2009 he dismissed the Council's claim against Mr Wall for possession, but likewise dismissed Mr Wall's claim for possession as against Mr Ingham and Ms Butler.

On Mr Wall’s further appeal to the Court of Appeal he argued that:

(1)He was qualified to succeed to the tenancy on the ground that he fell within the meaning of "another member of the tenant's family" for the purposes of sections 87 and 113 of the Housing Act 1985 read together with ECHR Articles 8 and 14

(2) The judge erred in law in failing to hold that a secure tenancy vests at the moment of death in the person entitled to succeed to the tenancy and that the deceased's tenancy in the instant case vested in Mr Wall on the deceased's death if he qualified as a successor.

(3) The judge erred in concluding that the effect of the order for possession made by the Recorder was to determine the secure tenancy that arose by virtue of Mr Wall's succession following the death of Mrs Wall.

(4) Had he properly directed himself, the judge ought to have held that by virtue of his superior title, viz the undetermined secure tenancy which vested in him on his mother's death, Mr Wall was entitled to possession as against the present occupiers

On the issue of whether he – as a foster son rather than a formally adopted son – fell within the class of persons entitled to succeed to a secure tenancy (see s113 Housing Act 1985) the Court said (at [27]):

“…"child" must be limited to the closed categories stipulated in section 113(2), namely blood relationships, step children and illegitimate children. When Parliament wished to extend the meaning to cover de facto relationships, it did so expressly, for example, by defining "spouse or civil partner" to include those who live together as husband and wife or as if they were civil partners. Absent such amplification there is in our judgment no room for extending the meaning of a "child" to cover a foster child. This definition of the terms distinguishes the Housing Act cases from the Rent Act cases and the flexibility afforded by Fitzpatrick does not apply in this case.”

As to whether s113 was compatible with Arts 8 and 14 ECHR, the Court said (at [33]):

“In our judgment the exclusion of foster children is objectively justified. It follows that the legislation is compatible with Mr Wall's Convention rights and there is, in those circumstances, no need to extend the ordinary and natural meaning of the words of the statute. Most unfortunately for this particular foster child, he does not qualify for succession to the tenancy… ”

Given that finding there was no need for the Court to formally determine the remaining grounds of appeal. The Court however held that assuming a person satisfies the criteria for succession, the deceased’s tenancy vests in the successor at the moment of death (the trial judge had held otherwise).

As to the complex issues arising where a possession order is made but then subsequently set aside – but in the meantime the property has been re-let to another tenant the court discussed at some length (but did not formally decide):

(a) whether a secure tenancy is automatically terminated in all respects on the making of a possession order even if that order should not have been made – Brent LBC v Botu [2001] 33 HLR 14 was here doubted

(b) whether the grant of a periodic tenancy which satisfies the requirements of the Law of Property Act 1925 section 54(2) can be a valid concurrent or overriding tenancy even though not granted by deed – Wansdworth LBC v Osei Bonsu [1999] 1 WLR 1011 on this point was also doubted.

Ben McCormack of GCN acted for Ingham and Butler, led by Jonathan Karas QC and instructed by Norrie,Waite and Slater Solicitors , Sheffield.

Quick links

3/8/10 - Just another brick in the (Sheffield CC v) Wall (nearlylegal blog)