Dudley Metropolitan Council v Mailley [2023] EWCA Civ 1246

Court of Appeal, 27 October 2023

The Court of Appeal has confirmed that provisions within the Housing Act 1985 that prevented a family member from succeeding to a secure tenancy when the tenant was permanently removed from her home because of ill-health are lawful.

A mother rented a three-bedroomed property from Dudley Metropolitan Borough Council (The Council) and lived there with her daughter (Ms Mailley) for 57 years. The tenancy had become a secure tenancy.

After losing her mental capacity, the mother moved into a care home, which meant she had ceased to occupy the property as her “only or principal home” (as required by section 87 of the Housing Act 1985) and had therefore lost security of tenure.

The Council served Ms Mailley with a notice to quit and sought possession of the property, although it was willing to provide her with suitable alternative accommodation and a support package. Ms Mailley challenged the Council’s decision, arguing that

1. the Council had failed to offer her a review of its decision to seek possession
2. her eviction would breach Article 8(2) of the European Convention on Human Rights (the right to respect for private and family life)
3. section 87 of the Housing Act 1985 should be “read down” under section 3 of the Human Rights Act 1998 to state that she was entitled to succeed to the tenancy – if her mother had died while living in the property, she would have been entitled to succeed to the tenancy.

The High Court, in allowing the application for a possession order, held that although Ms Mailley had not been offered a review of the decision prior to the possession claim being issued, she had been offered one subsequently, but had failed to make submissions or take part in it. Her eviction was proportionate and justified under Article 8 of the European Convention on Human Rights, as she would be under-occupying the property and there was a large shortage of similar-sized properties in the area. Also, a tenant who had lost capacity and was unable to assign their tenancy could not be considered to be in an analogous position to a tenant who had died at home or who was capable of assigning their tenancy.

Ms Mailley appealed, arguing that section 87 of the Housing Act 1985 directly discriminated against her, contrary to Article 14 of the European Convention on Human Rights (the right not to be discriminated against in “the enjoyment of the rights and freedoms set out in the Convention”). Ms Mailley argued that her status as the daughter of a tenant who had been permanently removed from her home due to her ill-health, and who did not have capacity to assign her tenancy to her potential successor (i.e. herself) under her under section.91(3) of the Housing Act 1985, was a protected “other status” within Article 14.

The Court of Appeal, in dismissing the appeal, held that Ms Mailley’s eviction did not unlawfully discriminate against her under Article 14 of the European Convention on Human Rights in conjunction with Article 8. Article 14 prohibits discrimination on grounds including sex, race, and “other status”. The fact that Ms Mailley was the daughter of a tenant who had been permanently removed from her home because of her ill-health and who lacked capacity to assign her tenancy to Ms Mailley did not comprise “other status” under Article 14. In any case, Ms Mailley was not permitted to succeed her mother's tenancy because of the operation of the Housing Act 1985. Even if there had been discrimination because of “other status”, sections 87 and 91(3) of the Housing Act 1985 were justified as they served legitimate aims.

To note: Section 87 of the Housing Act 1985 has now been repealed in England and section 86A has taken effect.

This decision is useful to local housing authorities, as it clarifies the public law and human rights positions in relation to possession claims.

A copy of the judgment is here.

Global 100 Ltd v Jimenez and others; Global Guardians Management Ltd and others v (1) Laleva and others, and (2) Hounslow London Borough Council [2023] EWCA Civ 1243

Court of Appeal, 27 October 2023

The Court of Appeal has held that property guardian companies were running unlicensed houses in multiple occupation under the Housing Act 2004 and were therefore subject to local authority licensing requirements.

Two property service companies, Global 100 Ltd and Global Guardians Management Ltd (The appellants), had entered into arrangements with the property owners under which they would receive a fee for arranging for people – “property guardians” – to live in their empty properties to deter squatters and criminal damage. The appellants consequently granted licenses to the individual property guardians to live in the properties and charged them a weekly licence fee.

The property guardians argued that the properties should have been licensed as houses in multiple occupation (HMOs) under section 254(2)(d) of the Housing Act 2004 and therefore they were entitled to rent repayment orders. The appellants, however, argued that the properties were not HMOs because the purpose of the occupation by the property guardians was to provide security services, so it could not be argued that the “only use” of the property was as living accommodation.

In each case, the First-tier Tribunal (Property Chamber) and, subsequently, the Upper Tribunal rejected the appellants' arguments that the property guardians used the properties for two purposes:

1. to live there
2. to protect the property, and therefore they did not meet the test for being HMOs because section 254(2)(d) of The Housing Act 2004 required occupation of the properties to constitute the “only use” of that accommodation.

The appellants, in conjoined appeals, appealed against the decisions. The Court of Appeal, in dismissing the appeals, held that the property guardians were using the properties as their main residences. Whilst the property guardians’ presence in the properties may have deterred squatters, that was not a “use” of the land.

This ruling confirms that property guardian providers must obtain an HMO licence for each property occupied by its property guardians. If they fail to do this, property guardians will be able to apply for a rent repayment order and the local authority can also issue a penalty.

A copy of the judgment is here.

Cavendish Lettings Ltd v Nottingham CC [2023] UKFTT 850 (GRC)

First-tier Tribunal (General Regulatory Chamber), 13 October 2023

A Tribunal has held that a council was correct to impose a financial penalty on a landlord for breaching the regulations on energy efficiency.

Nottingham City Council had imposed a £3,600 penalty (reduced to £3,420) on Cavendish Lettings Ltd under regulation 38 of the Energy Efficiency (Private Rented Property) Regulations 2015 for breaches of regulation 23 (for letting a sub-standard property) and 37(4)(a) (for failing to comply with a compliance notice).

Cavendish Lettings Ltd asked for this penalty to be quashed on the grounds that the imposition of the penalty notice was inappropriate and unfair because it had shown a willingness to comply with the Regulations and had undertaken improvement works. It apologised for not updating Nottingham City Council sufficiently regularly and did not dispute that the specified breaches had occurred, nor that the calculation of the penalty had been made in accordance with the Council’s policy.

Nottingham City Council said that it had taken into account the improvement works carried out when it calculated the penalty, but the property was nevertheless let whilst it had a sub-standard energy performance certificate and the submissions made by Cavendish Lettings Ltd did not justify the quashing of the penalty.

Cavendish Lettings Ltd appealed.

The Tribunal, in dismissing the appeal, held that although Cavendish Lettings Ltd had now taken steps to do the required works and bring the property into conformity with the energy performance certificate requirements, there had been a lengthy period of non-compliance which justified the penalty imposed by Nottingham City Council. In any case, Nottingham City Council had already reduced the penalty to acknowledge the improvements made, but Cavendish Lettings Ltd desire to quash the whole penalty was unjustified.

A copy of the judgment is here.

Dawson v Nottingham CC [2023] UKFTT 851 (GRC)

First-tier Tribunal (General Regulatory Chamber), 13 October 2023

A Tribunal has held that a council was correct to impose a financial penalty on a landlord for breaching the regulations on energy efficiency.

Nottingham City Council had imposed a £3,600 penalty (reduced to £1,200) on Mr Dawson under regulation 38 of the Energy Efficiency (Private Rented Property) Regulations 2015 for breaches of regulation 23 (for letting a sub-standard property) and 37(4)(a) (for failing to comply with a compliance notice)

The original penalty had been significantly reduced on review because the penalty for letting a sub-standard property had been revoked and the revised penalty was for failure to comply with the Compliance Notice.

However, Mr Dawson appealed, asking for the penalty to be quashed or reduced. Whilst he accepted that the EPC certification needed attention, Mr Dawson submitted that that property was otherwise in good order and complained that Nottingham City Council had been unhelpful and its staff rude when he had contacted it.

The Tribunal, in dismissing the appeal, held that Mr Dawson had not disputed the facts of the case, implying that he had accepted that he had not complied with the Compliance Notice. Mr Dawson’s allegations that Nottingham City Council’s letters were unhelpful and its staff as rude, if true, did not justify his failure to comply with a legal notice. The revised penalty therefore stood.

A copy of the judgment is here.