Unmarried couple not entitled to succeed to secure tenancies

Ms Turley, represented by TV Edwards Solicitors, brought a judicial review challenge against Wandsworth Council’s decision that she could not succeed to the secure tenancy of her deceased partner’s property. Mr Doyle and Ms Turley had been living together as husband and wife at the property in Wandsworth with their 4 children, since 1995. Mr Doyle died in March 2012.

Whilst Ms Turley had been residing at the property at the time of Mr Doyle’s death, she was not entitled to succeed to the secure tenancy because they were not married. A tenants spouse or civil partner need only be living at the property as the main residence at the time of death. For unmarried couples there is an additional condition that they must have resided with the tenant throughout the period of 12 months ending with the tenant’s death.

Mr Doyle had left the property causing a break in the chain of residence for a period of approximately 12 months from December 2010 until January 2012.

Following the implementation of the Localism Act 2011, from 1st April 2012, s.86A replaced s.86 of the Housing Act 1985 so that a person who was living with the tenant as the tenant’s wife or husband is to be treated as the tenant's spouse. The change removed the established distinction in the public sector between married couples and those living together as husband and wife. It was seen to bring the public sector rights of succession in line with those in the private sector.

Ms Turley could not benefit from this provision as the tenancy was granted before 2012. She suffered further detriment still, as Wandsworth Council admitted that they should have granted a joint tenancy on her request before Mr Doyle died, but failed to do so. A discretionary offer of a smaller property was made Ms Turley accepted the property, but on the terms that she would not take up residence until determination of her case, Wandsworth withdrew the offer.

The challenge by way of judicial review relied upon breaches of The Human Rights Act 1998 specifically Article 8 in conjunction with Article 14 of the European Convention of Human Rights. Article 8 conveys a right to respect for private and family life including the home. Article 14 a prohibition of discrimination in enjoying the Article 8 right.

The honourable Mr Justice Knowles CBE found whilst the additional condition of 12 months residence for unmarried couples is perhaps a blunt instrument, that does not mean it lacks objective and reasonable justification. It was held that the additional condition is directed to achieving a reliable conclusion on the question of whether the couple are living together.

Ms Turley was refused permission to appeal but intends to appeal to the Court of Appeal.