Foster Child not entitled to succeed to Council tenancy under Art.8 

Sheffield City Council v Wall [2010] EWCA CIV 922In this case the Court of Appeal held that a foster child did not fall within the definition of a member of the family provided by ss 87 & 113 Housing Act 1985. Whilst Article 8 was engaged and the exclusion of a foster child from the definition of a “member of the family” was discriminatory the exclusion had an objective and reasonable justification (applying Wandsworth LBC v Michalak [2003] 1 WLR 617).

Although this disposed of the appeal the Court also expressed the following strong obiter observations of some wider importance:

(1)   A secure tenancy vests automatically at the moment of death in the person entitled to succeed and the Judge was wrong to hold otherwise (para 36).

(2)   The Judge’s conclusion that where there is a secure tenancy there can never be another tenancy in respect of the same premises was doubted (para 46).

(3)   The tenant under a periodic tenancy and the concurrent lessee are the only persons by and to whom a valid notice to quit can be given – Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 decided per incuriam on this point (para 61).

(4)   Hillgate Housing Ltd v Expert Clothing Service [1987] 1 EGLR 65 is not authority for the proposition that an improperly granted possession order, let alone one which was not made pursuant to one of the specified statutory grounds, of itself terminates a secure tenancy (para 49) the decision in Brent LBC v Botu [2001] 33 HLR 14 questioned in this regard (para 50).

Permission to appeal to the Supreme Court is being pursued.

Adam Fullwood represented Mr Wall instructed by Graham Hogarth of Howells LLP.

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