22 October, 2010
On 23 June 2010, the Supreme Court delivered its judgment in the case of Austin v Mayor and Burgesses of the London Borough of Southwark  UKSC 28. This case, which previously had been heard by the Court of Appeal in 2009, concerned issues relating to whether the brother of a secure tenant could succeed to the tenancy.
Given that succession is a topic which can cause problems and due to the binding nature of the Supreme Court's decision, it is advised that all social landlords are fully aware of the content and ramifications of the verdict.
The appellant in the case (A) was the brother of a secure tenant (B) who held a secure tenancy of a property owned by the Council (S). The tenancy began in July 1983 and in June 1986 S brought possession proceedings against B on the basis or rent arrears. In February 1987, a suspended possession order was granted which stated that B was to repay the arrears amount by a set date. B did not meet this requirement and so the order became enforceable. However, S did not enforce it and B continued to live in the property until his death in February 2005. B died without leaving a will.
A stated that he had been residing in the property since October 2003 and had become his brother's full-time carer. In September 2006, S served a Notice to Quit upon A and in January 2007 commenced possession proceedings against him. Two months later, A made an application to the county court to be appointed as the representative of his brother's estate in the possession proceedings brought in 1986. It is said that if successful, A would have then applied to the court under the Housing Act 1985 to postpone the date of possession granted in the 1987 order. If this in turn was also successful, the secure tenancy would have been 'revived' and A could then have succeeded to the tenancy himself.
A's appeal had been previously rejected by both the High Court and the Court of Appeal. A raised two main issues to be determined by the Supreme Court:
1. whether B's secure tenancy was terminated by B's failure to pay the rent arrears by the required date so that he remained in the property as a 'tolerated trespasser', or whether the tenancy continued until B's death which meant that it could be passed onto A via B's estate; and
2. whether the statutory right held by B to apply to the court to postpone the enforcement of a possession order terminated on the death of the B, or whether this was also capable of being transferred to A.
As A had brought his claim on the basis of two distinct issues, the Supreme Court considered each of them in turn.
In relation to the first point, the court considered that the law on this issue had been settled by Thompson v Elmbridge Borough Council  1 WLR 1425 where it was held that where there was a breach of the terms of the order, the tenancy came to an end from the moment of the breach. This was later confirmed in Burrows v Brent LBC  1 WLR 1448. However, the case of Knowsley Housing Trust v White  A.C. 636 had raised an alternative and persuasive argument that the date specified on which the tenant was to give up possession could instead mean when the order was actually executed.
The Supreme Court took the view that "there was much to be said" for this second view but that it would not be appropriate to depart from the decision in Knowsley which ultimately held that the decisions in Thompson and Burrows should not be overruled. The court repeated its view that the law on this area had been settled for a number of years since the Thompson decision and that the consequences of altering it now would be "incalculable". It was said that because the law had been considered to be consistent for a significant amount of time, it had been acted upon in thousands of cases. The court also said that the area of greatest concern was the effect it would have on social landlords who had assumed that those who failed to comply with the terms of a suspended possession order were no longer tenants. It was considered that the consequences of restoration was one of the factors which led to the Housing and Regeneration Act 2008 amending the law in a prospective manner instead of retrospectively. A judicial decision which changed this would have been contrary to the will of Parliament.
This meant that the Supreme Court rejected A's first argument that the tenancy could be passed on to him by B's estate as the tenancy ended when B failed to meet the time limit for payment of the rent arrears.
Turning to the second of A's submissions, the Supreme Court held that the fact that a secure tenant had died did not prevent a court from making use of the Housing Act 1985 to postpone the date of possession. There did not appear to be any good reason why a deceased tenant's personal representative should not be permitted to ask the court to make use of this power to, for example, allow the tenant's affairs to be put in order or for licensees or sub-tenants to be re-housed.
Although previous case law (Brent LBC v Knightley (1997) 29 HLR 857) had held that the right to apply for a postponement of a possession order was not an interest in land capable of being inherited, it was said that the wording of the 1985 Act meant that it was open to A to apply for the date of possession to be postponed.
A's second argument was allowed by the Supreme Court and he was to be appointed as the personal representative of B. This would then allow the request for postponement of the 1987 possession order to be determined. The decision in Knightley was also consequently overruled.
The Supreme Court's decision in this case has provided clarification to an issue which can be difficult for local authority landlords to deal with. Although A was not able to inherit the secure tenancy directly, he was permitted to apply to the court to have the date of possession postponed so that he could ultimately become the statutory successor. This judgment should be noted by local authority landlords and acted upon in relevant cases in the future.