Permission to appeal granted by Court of Appeal in Dudley MBC-v-Mailley

18 January 2023

Dudley MBC -v- Mailley [2022] EWHC 2328 (Q.B)

The Court of Appeal has granted permission to appeal to Marilyn Mailley against the decision of Cotter J granting an order for possession in favour of Dudley MBC after it was decided she was not entitled to succeed to the secure tenancy of her late mother on the grounds that Mrs Mailley’s tenancy had ceased to be secure when she permanently ceased to reside at home and lived instead in residential care and that the tenancy was determined by a notice to quit.

This was despite the fact that the house had been Marilyn Mailley’s home since 1965 and that had her mother died at any time between 1980 and the date at which she became a permanent residence of the home in 2016 would have succeeded to the tenancy. The late Mrs Mailley was suffering from dementia and did not have capacity to assign the tenancy to her daughter which should could otherwise have done at any time before becoming a permanent resident of the home.

Permission has been sought and granted on the ground that Section 87(b)  Housing Act 1985 is incompatible with Article 14 of the ECHR in that Section 87(b) Housing Act 1985 discriminated against the Defendant  on the grounds of her status as she was treated differently to other qualifying successors on the basis that she had lost her right to succeed upon the member of her family ceasing to occupy their home due to permanent ill-health and who not have the capacity to assign the tenancy to their qualifying successor under Section 91(3) Housing Act 1985.

The relevant comparators being a tenant who had died at home and a tenant who had to cease to occupy due to permanent ill-health but who retained capacity to assign at that time.

James Stark, of our housing team, is instructed by Rose Pritchard of the Community Law Partnership.