The Supreme Court unanimously allowed the appeal. There were ‘very good reasons for accepting that the law as declared in [Thompson v Elmbridge BC [1987] 1 WLR 1425, CA], however unsatisfactory it can now be seen to be, should not be disturbed’ (Lord Hope, para 31). Second, Lord Hope pointed out that the powers contained in section85(2) are exercisable ‘at any time before the execution of the order’. The possibility that the tenant may have died in the meantime is not mentioned. If it had been the intention that the powers should not be exercisable on the tenant’s death it would have been easy to say so. Indeed, given the width of the phrase that is actually used, one would have expected words to that effect to have been inserted (para 38). Brent LBC v Knightley [1997] EWCA Civ 917; was wrongly decided and should be overruled. The fact that the former secure tenant had died did not deprive the court of its jurisdiction to exercise the power to postpone the date of possession under section85(2)(b). Barry Austin was able to represent the estate of his brother and to apply under CPR 19.8 for the date of possession to be postponed. His section85(2) application was remitted to Lambeth County Court for determination. In a concurring judgment, Lady Hale gave a ‘trenchant analysis’ and ‘definitive obituary of the “tolerated trespasser”’ (para 43). Lord Walker described the former status of ‘tolerated trespasser’, abolished by the Housing and Regeneration Act 2008, as an ‘unfortunate zombie-like creature [which] achieved a sort of half-life only through a series of judicial decisions in which courts failed, or did not need, to face up to the theoretical and practical contradictions inherent in the notion’ (para 43).

The House of Lords dismissed Birmingham’s appeal. Although Housing Act 1985 s88(1) provides that ‘the tenant is himself a successor if … (b) he was a joint tenant and has become the sole tenant’, those words do not apply to events which occurred before Housing Act 1980 came into force. The events to which s88(1) refers are events in relation to tenancies which have become secure tenancies and not to events which happened earlier. When Mrs Walker became the sole tenant, it was not of a secure tenancy and she was therefore not a successor.

The Supreme Court dismissed the appeal (Lords Mance and Clarke dissenting). The Housing Act 1985 did not alter the common law position: Mr and Mrs Hickin had jointly constituted the ‘tenant’. The tenancy subsisted even after the death of Elaine Hickin’s mother, with her father as the sole tenant. Since he was not living at the property, he had lost his statutory security of tenure (Housing Act 1985 s81) and the contractual tenancy had been validly terminated by the notice to quit.

Allowing the appeal, the House of Lords held that Power had been wrongly decided. The ‘12-month rule’ can be satisfied by residence with the deceased council tenant in any premises or combination of premises (not necessarily subject to secure tenancies for the whole period) for the one year ending with the date of death.

The Court of Appeal held that section88(1)(b) applied only when the joint tenancy became a sole tenancy. Here the joint tenancy had ended and been replaced by a new sole tenancy. The sole tenant was not a successor and so the child was entitled to succeed.

Refusing an application for permission to appeal, the Court of Appeal held that the term ‘member of the family’ could only be satisfied by the relationships listed in Housing Act 1985 s113. In law the defendant and the deceased were ‘first cousins’ and so not within the section at all.

The Court of Appeal held that: (a) the original tenancy had neither been determined nor vested in the widow for the purposes of Housing Act 1985 s88(1)(e); (b) the council’s letter could, therefore, be interpreted only as the grant of a new tenancy to the widow; (c) the latter became secure under Housing Act 1980; and (d) the children were the first successors to the secure tenant and therefore the secure tenancy vested in one of them.

The Court of Appeal dismissed the appeal. Mere physical presence is not enough to amount to ‘residing with’ for the purposes of section87. There must, to a significant degree, be an intention which can be characterised as making a home with the tenant. Just staying in the property is not enough (Swanbrae Ltd v Elliott (Swanbrae Ltd v Elliott)). The question of whether Ms Freeman had ‘resided with’ her father was one of fact and degree. It was not sufficient merely to invite the Court of Appeal to assess the facts and degree differently from the way it was done by the judge below. The judge had not misdirected himself or reached a conclusion that was perverse. The matters to which he referred were entirely proper considerations, and his reasoning could not be faulted.

The Court of Appeal dismissed the council’s appeal. The court held that a secure tenancy in equity vests in a minor who satisfies the succession conditions. Nothing in Housing Act 1985 limits the provisions regarding succession to adults. It is well established that minors can succeed to statutory tenancies under Rent Act 1977. There is nothing that prevents a local authority from granting an equitable tenancy to a minor. The Trusts of Land and Appointment of Trustees Act 1996 Sch 1 operates in such a way that the legal tenancy to which the minor succeeded was held on trust for her and vested in her parent as trustee until she reached the age of majority. There is no policy objection to including minors within the succession provisions. Leave to appeal was refused.

Cf Hammersmith and Fulham LBC v Alexander-David (Hammersmith and Fulham LBC v Alexander-David)

The Court of Appeal held that weighing such evidence was essentially a matter for the county court judge. It declined to disturb a finding that Mr Marsh had not established the right to succeed. (See, by way of contrast, the Rent Act case of Hildebrand v Moon (Hildebrand v Moon).)

The appeal was dismissed. The Court of Appeal held that: (1) section113 did contain an exhaustive list of categories of family members eligible to succeed a secure tenant; (2) the provision was discriminatory in relation to a matter within the scope of Article 8 (the ‘home’) and so Article 14 was engaged; (3) there was an objective justification for establishing a ‘closed’ list in section 113 which was ‘certainty’ in determining which members of a secure tenant’s family were eligible to succeed and accordingly Article 14 was not infringed; (4) the fact that the Rent Acts contained no exhaustive definition of ‘member of the family’ could not assist the defendant because the schemes of the Rent Act and Housing Act tenancies were so different that a potential successor in one scheme had no ‘comparator’ in the other scheme; (5) on a claim for possession against a non-successor, the county court was not required to investigate the individual circumstances of the defendant in order to find the conditions of Article 8(2) made out. Those conditions were satisfied by the common-law right to recover possession of property against a person who, under the relevant statutory scheme, had no right to remain following the death of the tenant.

The appeal was dismissed. It is not possible for there to be a joint succession to a secure tenancy. Josephine had only agreed to Beryl’s name being put on the rent book if she alone remained the tenant and so it was impossible to regard this as a surrender of the tenancy. The inclusion of Beryl’s name on the book had no effect and Josephine remained the sole tenant. There was no act pointing unequivocally to surrender.

The Court of Appeal dismissed the appeal. The judge had not erred in making the declaration. There were no authorities to support Sharmin’s submissions. The legal tenancy vested in Sharmin’s aunt by the mother’s will. Housing Act 1985 Part IV did not prevent the aunt from holding the legal tenancy (see Kingston upon Thames RLBC v Prince (Kingston upon Thames RLBC v Prince)).

The Court of Appeal dismissed the council’s appeal. In ‘family member’ succession cases, the burden of proof is on successors to show that they are family members, that they lived with the tenant for the 12 months and that the dwelling is their only or principal home. These questions are primarily issues of fact. In this case, there was no basis for saying that the judge had erred in law or otherwise mis-directed himself.

The Court of Appeal dismissed Ms Turley’s appeal. Local authority secure tenancies are a valuable and limited resource. It would not be fair to grant succession rights to family members whose relevant relationship with the tenant was essentially transient. The purpose of imposing the 12-month condition was that a reasonably long period of living together might be taken to demonstrate an element of permanence and constancy in the relevant relationship. That aim was legitimate. It was impossible to say that the imposition of the 12-month condition was manifestly without reasonable foundation as a criterion for demonstrating the necessary degree of permanence and constancy. Knowles J was right to find that even if the situations of common law spouses and married spouses were analogous for the purpose of Article 14, the difference in treatment between them was justified.

The Court of Appeal allowed the appeal and remitted the case for a rehearing. (1) Although a foster child is not a ‘member of the family’ for the purposes of sections 113 and 87, Sheffield were, in the circumstances, estopped from claiming that Mr Wall was not a member of his foster mother’s family. (2) Mr Wall had to establish residence between 22 June 2002 and 21 June 2003 to satisfy section 87. The judge had failed to remind himself that he was only concerned with a period of absence of about two weeks (ie, prior to 6 July 2002). He made no reference to the case-law or the correct way in law to approach periods of absence from the property. In particular, the judge did not refer to the need for a person who sought to establish residence to show the necessary physical and mental elements of residence. The judge’s determination was unfocused and he appeared to suggest that Mr Wall had been living elsewhere during periods when there was a great deal of evidence that suggested otherwise.

The Court of Appeal dismissed the appeal.

Evans-Lombe J dismissed the defendant’s appeal. Without a lifetime commitment at least at some point in the relationship, there was no sufficient similarity to marriage. Such a relationship must be ‘openly and unequivocally displayed to the outside world’. There were many ways in which a marriage relationship could be described but Evans-Lombe J was satisfied that the test applied by the recorder was an entirely adequate one that was consistent with authority (eg, Ghaidan v Godin-Mendoza (Ghaidan v Godin-Mendoza)). On the findings of fact which he made, he was entitled to conclude that section 17(4) was not satisfied.

Lord Diplock declined to undertake a general consideration of what persons might be included in the expression ‘a member of the original tenant’s family’ but approved comments by Russell LJ in Ross v Collins [1964] 1 WLR 425, CA, that there must be:

His further appeal was, however, allowed by a majority of the House of Lords. Although gay partners could not live together as husband and wife, they could be members of the same family for the purposes of Rent Act succession. Since a man and a woman living together in a stable and permanent sexual relationship were capable of being members of a family, it could not make sense to say that a gay partnership of the same character could not. Lord Slynn of Hadley said:

The House of Lords (Lord Millett dissenting) dismissed the landlord’s further appeal. A gay couple, as much as a heterosexual couple, share each other’s life and make their home together. There is no rational or fair ground for distinguishing the one couple from the other. The difference in treatment flowing from the Fitzpatrick interpretation of para 2(2) infringed Article 14 read in conjunction with Article 8, since the distinction on grounds of sexual orientation had no legitimate aim and was made without good reason. The social policy underlying the 1988 extension of security of tenure to the survivor of couples living together as husband and wife was equally applicable to the survivor of homosexual couples living together in a close and stable relationship. Applying Human Rights Act 1998 s3, para 2 is to be read and given effect as though the survivor of such a homosexual couple is the surviving spouse of the original tenant. Reading para 2 in that way has the result that cohabiting heterosexual couples and cohabiting homosexual couples are treated alike for the purpose of succession as a statutory tenant.

The Court of Appeal held that she was entitled to succeed to the tenancy. Lord Denning stated that members of the tenant’s family for the purposes of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 included ‘not only legitimate children but also stepchildren, illegitimate children and adopted children, whether adopted in due form of law or not’.

It was held that the relationship ‘had reached a sufficient state of permanence and stability for it to be said that in all the circumstances’ she was a member of the tenant’s family and, therefore, entitled to succeed to the statutory tenancy.

The Court of Appeal dismissed her appeal. The letter did not suggest an assignment. Any such assignment or transfer would have been sent to Ms MacNicol herself and not to the landlord. Furthermore, the terms of letter suggested the giving up of rights under a tenancy. The judge had been correct to find that what the brother had done by the letter had been to surrender his rights under the tenancy. As a result Ms MacNicol had occupied the property as an assured shorthold tenant and the landlord was entitled to the possession order sought.

The Court of Appeal held that the landlords were estopped from denying that the defendant was a statutory tenant. Although there can only be one successor to a statutory tenancy, if joint tenants hold a protected tenancy, there is no reason why they should not both become statutory tenants on the expiry of the contractual term. The effect of the estoppel was to allow a transfer of the statutory tenancy without the written agreement between the outgoing tenant, the incoming tenant and the landlord which would usually be required by Rent Act 1977 Sch 1 para 13.

Allowing an appeal against a possession order, the court stated that, where both the statutory tenant and a member of the family intended that the non-tenant relative should become a permanent member of the tenant’s household, the fact that the tenant was temporarily absent did not mean that the member of the family was not residing with the tenant.

However, Mann LJ found that:

The Court of Appeal dismissed an appeal. The term ‘the surviving spouse’ has rather more formality about it than the term ‘a person who was living with the original tenant as his or her wife or wife or husband’ in Schedule 1 para 2(2)(a). It does not have a ‘flexible meaning’. HHJ Baucher had been right to determine that Ms Ouaha was not a surviving spouse because there had been no formal marriage ceremony which was valid under English law. The Court of Appeal left open whether the only way in which a person can qualify as ‘the surviving spouse’ for the purposes of paragraph 2(1) is by showing that she or he underwent a ceremony of marriage valid under the Marriage Acts. It may be that some or all foreign ceremonies of marriage would allow a person to qualify.

However, Lloyd LJ stated that ‘length of residence could not transform her into a member of the family’. There is a distinction between ‘being a member of the family and being a member of the household, and [a] distinction between being a member of the family and living as a member of the family’ ((1988) 20 HLR at 127). It was held that she was not a member of the family and so she was not entitled to succeed to the statutory tenancy.

Her appeal against a county court decision that she was not residing with her mother and was therefore unable to succeed to the tenancy was dismissed. The Court of Appeal considered the meaning of ‘residing with [the tenant]’ in Rent Act 1977 Sch 1. Swinton Thomas J stated that the words meant that a person ‘must show that he or she has made a home at the premises which they are claiming and has become in a true sense a part of the household’. Although it is possible for such a person to have two homes, the words mean more than merely ‘living at’ the premises. Essentially, such questions are matters of fact and degree which are best decided by judges of first instance.

The Court of Appeal dismissed her claim. She was her parents’ licensee. On her mother’s death, the contractual term vested in her father as surviving joint tenant. On the expiry of the contractual term, he became the statutory tenant. When he left, the statutory tenancy came to an end and Ms Tennant had no legal right to remain in occupation. The Court of Appeal rejected Ms Tennant’s contention that, since a literal application of the rules about joint tenancies produced an anomalous and capricious result, the court should adopt a purposive construction similar to that employed in Lloyd v Sadler (Lloyd v Sadler).

HHJ Hill-Smith held that, because (a) a statutory tenancy is not an interest in land and (b) a contract for the provision of lodgings was a contract for the provision of necessaries, the son had the capacity to, and did, succeed to the statutory tenancy.