Austin v Southwark LBC [2010] UKSC 28

Mr Austin sought to represent his deceased brother's estate to apply to revive a secure tenancy that had ended when his brother breached a suspended possession order. The Supreme Court held the statutory right to apply under section 85(2) survives death, allowing the appeal.

Facts

The deceased, Alan Austin, was granted a secure tenancy of a dwelling-house in Southwark by the Council on 12 July 1983 under the Housing Act 1980 (consolidated in the Housing Act 1985). In June 1986, owing to rent arrears, the Council obtained a conditional suspended possession order (Form N28) on 4 February 1987, requiring payment of £3,312.98 by 4 March 1987. The deceased failed to comply but remained in occupation, paying rent and contributions towards arrears, until his death on 8 February 2005. The appellant, his brother, claimed to have moved in as full-time carer in October 2003. The deceased died intestate with no personal representative. The Council served a notice to quit and issued possession proceedings against the appellant in 2007. The appellant applied under CPR 19.8 to represent the deceased’s estate so as to apply under section 85(2)(b) of the 1985 Act to postpone the date for possession, thereby reviving the secure tenancy, which would then vest in him under section 87 if residence for the preceding twelve months was established.

Issues

Two principal issues arose. First, whether a secure tenancy ends on breach of the conditions of a suspended possession order (as held in Thompson v Elmbridge Borough Council [1987] 1 WLR 1425) or only when the possession order is executed. Secondly, whether the former tenant’s statutory right under section 85(2) of the 1985 Act to apply to postpone the date for possession, and thus revive the secure tenancy, survives the tenant’s death and passes to his estate. Further issues concerning Article 1 of Protocol 1 ECHR and CPR 19.8 did not require determination.

Arguments

The appellant (Mr Luba QC) argued that Thompson was wrongly decided and that the tenancy endures until the possession order is executed, relying on observations of Lord Neuberger in Knowsley Housing Trust v White [2009] AC 636. Alternatively, he submitted that the right to apply under section 85(2) survives the tenant’s death, contending that Brent London Borough Council v Knightley (1997) 29 HLR 857 was wrongly decided. The respondent Council (Mr Drabble QC) maintained that Thompson was settled law, had been acted upon in tens of thousands of cases, and that Parliament had addressed the issue prospectively through the Housing and Regeneration Act 2008. The Council accepted that if the right survived death, the appellant could invoke CPR 19.8.

Judgment

First issue: the effect of section 82(2)

Lord Hope (with whom Lord Brown and Lord Kerr agreed) accepted that there was a powerful textual and contextual case for Lord Neuberger’s interpretation that the tenancy ends only upon execution of the possession order. The phrase “is to give up possession in pursuance of the order” was capable of meaning the date on which possession is actually given up under a warrant. Section 85’s wide powers, and section 121 (right to buy), tended to support that reading, and the reference to mesne profits in section 85(3) was best explained as “torrential drafting”. Nevertheless, applying the principles governing departure from previous decisions (the 1966 Practice Statement, as preserved in the Supreme Court), the Court declined to overrule Thompson and the endorsement in Burrows v Brent London Borough Council [1996] 1 WLR 1448 and Knowsley. The decision had been acted upon in tens of thousands of cases, and Parliament, by section 299 and Schedule 11 to the Housing and Regeneration Act 2008, had legislated only prospectively, creating replacement tenancies for existing tolerated trespassers rather than retrospectively reviving the original tenancies. Retrospective reversal would undermine that carefully crafted scheme and contradict Parliament’s will.

Second issue: survival of the section 85(2) right on death

The Court held that Knightley was wrongly decided and should be overruled. Aldous LJ’s reasoning had confused the question whether the right was capable of being “inherited” at common law with the proper question, namely whether the statutory right was capable of being “transmitted”. Section 85(2) confers powers exercisable “at any time before the execution of the order”; Parliament had not excluded the tenant’s death from that wide phrase. Other provisions (sections 87–90, and the former section 85(5)) demonstrated that where Parliament intended consequences to flow from the tenant’s death, it said so expressly. Examples (such as a tenant dying before the possession order takes effect, or the day before a postponement hearing) demonstrated that the court’s jurisdiction must extend beyond death. The deceased’s personal representative could therefore apply under section 85(2)(b). This solution preserved the court’s discretion to do justice and protected the landlord. The appellant could accordingly be appointed under CPR 19.8 to represent the estate, and the application to postpone the 1987 possession order was remitted to Lambeth County Court.

Concurring judgments

Lord Walker agreed fully, describing Lady Hale’s judgment as “the definitive obituary of the ‘tolerated trespasser'”. Lady Hale provided a trenchant critique of the tolerated trespasser concept, observing that “A tolerated trespasser is an oxymoron”, and concluded that Thompson had set the law on a course wrong in principle and practice, but that Parliament’s intervention through the 2008 Act required the Court to respect the legislative scheme.

Implications

The decision preserves, for historical cases, the doctrine that breach of a suspended possession order terminates a secure tenancy, leaving the former tenant as a “tolerated trespasser”. However, the Court signalled clearly that Thompson was conceptually unsatisfactory and that, but for Parliament’s prospective intervention in Schedule 11 to the Housing and Regeneration Act 2008, it would have been overruled. The significance of the case lies primarily in its resolution of the second issue: by overruling Knightley, the Supreme Court established that the statutory right under section 85(2) to apply for postponement of a possession order, and thus to revive a secure tenancy, survives the death of the former tenant and may be exercised by the personal representative or a person appointed under CPR 19.8. This fills the gap left by the 2008 Act, which had not addressed tolerated trespassers who died before applying for revival. The judgment also clarifies that the 1966 Practice Statement applies in the Supreme Court without needing to be reissued, and illustrates the cautious approach the Court will take when long-standing authority has been acted upon and Parliament has legislated on the basis of it. The case matters to social landlords, occupiers claiming succession rights, and practitioners in housing law, but its application is confined to the statutory framework of secure tenancies under the 1985 Act and the transitional position created by the 2008 reforms.

Verdict: Appeal allowed. The appellant was ordered to be appointed to represent the estate of the deceased under CPR 19.8(1)(b), and his application under section 85(2) of the Housing Act 1985 for postponement of the 1987 possession order was remitted to Lambeth County Court for determination. The Court declined to overrule Thompson v Elmbridge Borough Council on the first issue but overruled Brent London Borough Council v Knightley on the second.

Source: Austin v Southwark LBC [2010] UKSC 28