Foster child fails to be considered a 'family member' for succession


22 October, 2010

Succession can be one of the most difficult and emotive issues that a social landlord has to deal with. It is often the case that a decision reached on whom, if anyone, should succeed to a tenancy will leave some family members aggrieved.

In order to prevent tenancies from being passed on forever, there are a number of restrictions in place on when succession can take place. One such example for secure tenancies is that the proposed successor has to be the tenant's spouse or civil partner, or that they are another member of the tenant's family and has resided with them for 12 months prior to the tenant's death. It was the issue of who should be considered as a member of the tenant's family at the heart of the Court of Appeal's decision in Sheffield City Council v Wall [2010] EWCA Civ 922.

Due to the regularity with which succession issues can arise, it is advised that social landlords are aware of this decision and the potential impact it could have in the future.

The Facts

In 1967 the appellant (W) was placed by the Council with a foster mother when he was a few months old. This became a long term foster placement and W was brought up as if he was the child of his foster mother. It was also said that W considered her to be his mother.

In 1986, W's foster mother was granted a secure tenancy of a property in Sheffield on the basis that the occupants of the property were herself and W. W trained to be a solicitor and in September 2001 moved to London for work purposes but in June 2002, returned to Sheffield to live with his foster mother and became her primary carer through illness. W's foster mother died in June 2003 and four months later a notice to quit was served upon him and the Public Trustee.

The Council issued a claim for possession of the property on the grounds that there was no person qualified to succeed to the tenancy and that a valid notice had been served. W argued that he was entitled to succeed and that consequently the notice was invalid. At the initial hearing, it was held that W was a member of his foster mother's family but that he had not resided in the property for the required 12 month period. The possession order was therefore granted.

W appealed against this decision but did not seek a stay of execution of the order and vacated the property as required to do in the order. The order was executed in February 2005 and in April 2005, it was re-let to new tenants (I) under a secure tenancy agreement.

The order for possession granted against W was set aside by the Court of Appeal in March 2006 and the case was remitted to the county court for a rehearing. All of the parties were urged to attempt to reach a compromise in the case. This did not happen however and W then commenced his own possession proceedings against I. When the case was reheard in the county court, the judge dismissed the Council's claim for possession against W and also dismissed W's claim for possession against I.

W appealed against this decision to the Court of Appeal arguing that 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.

The Court of Appeal's Decision

W's appeal was rejected by the Court of Appeal.

The wording of section 87 was first considered which referred to succession being able to take place if the prospective successor was another member of the tenant's family. It was said that undoubtedly W was a member of his foster mother's family. However, the court also considered that section 113 placed restrictions on who could be classified as such and that it was heavily focused upon blood relationships. It was said that the meaning of the word 'child' was to include step-children and illegitimate children, but significantly did not include foster children. The Court of Appeal said that the wording of section 113 had to be deemed as requiring that W could only be a member of his foster mother's family if he fell within the scope of the definition. Because foster children were not referred to in the legislation, W could not be deemed as being a family member and therefore could not succeed to the tenancy.

It was also said that W's article 8 rights (relating to the right to a private and family life) but that there was an objective and reasonable justification as to why W had received different treatment. It was said in previous case law (R (on the application of Gangera) v Hounslow LBC [2003] EWHC 794) that Parliament had to strike a balance between the security of tenure being offered and the need for a system of allocating limited resources. Council housing was stated as being a precious and limited resource and it was for a local housing authority to decide who would qualify for such accommodation by it under the 1985 Act. This meant that the provisions of the 1985 Act were compatible with W's rights under the European Convention on Human Rights.


This case has shown that the rules on succession are relatively restrictive and prospective successors must be able to demonstrate that they satisfy the applicable requirements. It is advised that social landlords, when dealing with succession related issues, are aware of the relevant rules and are able to determine whether succession may take place.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or email Stuart Penswick.


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