Sheffield City Council v Personal Representative of June Wall, Steven Wall, Robert Ingham and Theresa June Butler [2010] EWCA Civ 922

n this case the Court of Appeal were asked to consider whether a foster child of a secure tenant could have the right to succeed her to the tenancy following her death. As a young baby Steven Wall had been placed by Sheffield City Council with Ms Wall as a foster placement. This developed into a long term foster placement and Steven was treated throughout his minority as one of the family. Steven did leave home for short period, first to study at university and then later, for six months, to complete his training contract as a solicitor.  He returned home to Ms Wall on completion of his training contract. Ms Wall had by this time been diagnosed with cancer and Steven remained at her address as her primary carer. She died in June 2003 when Steven was one week shy of having resided at the address from a year. In October 2003 the Council issued a notice to quit and subsequently a possession order was made against Mr Wall, the Judge finding that the Council were estopped from treating Mr Wall as not a member of the family but granting the possession order on the basis that he had not resided at the property for the required period of 12 months. Whilst Mr Wall appealed this decision he did not request a stay of execution but vacated the property. The Council subsequently let the property to Mr Ingham and Ms Butler. Originally the Court of Appeal set aside the possession order and remitted the matter for rehearing, urging the parties to explore the possibilities of compromise. As no agreement had proved possible the matter was again brought before the Court of Appeal at which time the local authority agreed to treat Mr Wall as if he did satisfy the residence requirement for succession. The issue that remained therefore was to determine whether Mr Wall should be considered a member of the tenant’s family (i.e. Ms Wall) for the purposes of s.87 and s.113 of the Housing Act 1996, particularly if read together with the obligations set out within article 8 and 14 of the  European Convention on Human Rights 1950.

The Court of Appeal accepted that if the matter were to rest solely with the description set out in s87 of the Housing Act 1996 then Mr Wall would likely qualify as ‘another member’ of her family particularly if one was to adopt the more flexible interpretation of the word family so as to look rather at the characteristics of the relationship as used by Lord Slynn of Hadley in Fitzpatrick v Sterling Housing Association Ltd (2001) 1 AC 27 HL.   However as the Court of Appeal made clear in this instance such an interpretation was not permissible because the statute went on to specifically identify who would qualify as a family member at s113(1). Within this subsection it was made clear that only the “spouse or civil partner of that person, or [where] he and that person live together as husband and wife or as if they were civil partners, or [where] he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.” Whilst s113(2) further qualified the categories of family members to include those related by marriage, civil partnership, blood, half blood and illegitimate or step family relationships it did not allow for those who had been fostered to be categorised as qualifying family members. The Court made the point that the legislature had recently reviewed this categorisation to include those family members related by virtue of a civil partnership and had at this time chosen not to widen so as to include relationships developed as a result of a foster placement. Given this the Court of Appeal determined that they could not apply the flexible approach to the definition of family applied in Fitzpatrick v Sterling Housing Association Ltd (2001). The Court referred to the judgment of Brooke LJ in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271 for support in their findings, quoting his view that “in abandoning the potentially open- ended phrase “member of the tenant’s family” by inserting the explanatory section 113 which shows what type of relative is embraced by that phrase, Parliament intended to achieve certainty, a quality which is very desirable in the arena of local authority housing with which these statutory provisions are concerned.”

Despite finding that article 8 was certainly engaged by the facts of the current case, and accepting for the purposes of the argument that the enjoyment of those rights is discriminated against on the ground of his birth or status as a foster child the Court of Appeal was required to consider whether such difference in treatment was objectively and reasonably justifieable. In concluding that it was (and therefore that the Housing Act was compatible with Mr Wall’s Convention rights) the Court referred to the judgment in R. (On the application of Gangera) v Hounslow London Borough Council [2003] EWHC 794 (Admin) which reasoned that it was “plain that Parliament had to strike a balance between security of tenure and the wider need for systematic allocation of the local authority’s housing resources in circumstances where those housing resources are not unlimited.  The striking of such a balance is pre-eminently a matter of policy for the legislature.  The court should respect the legislative judgment as to what is in the general interest unless that judgment was manifestly without reasonable foundation”. Given those circumstances the Court of Appeal could find no need to extend the ordinary and natural meaning of the words of the statute.  The remaining grounds of appeal were dismissed on the basis that they were based on the assumption that the possession order had been incorrectly made in the first instance, as this was not the case Mr Wall would be unable to return to the property.

The Court of Appeal also refused a cross appeal by Mr Ingham and Theresa Butler that the local authority should pay their costs. Though sympathetic to them having been ‘dragging into Court through no fault of their own’ the Court highlighted that this was as a result of Mr Wall’s application for possession against them, not the local authority’s who had always been supportive of their position, and on the basis that there was no good reason why the local authority, rather than Mr Wall, should be ordered to pay their costs.

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