Lord Sumption warns of 'arbitrary and capricious' consequences of following statutory scheme
The common law rights to a secure tenancy of an absent father take priority over the Housing Act 1985 statutory scheme, the Supreme Court has ruled.
The case involved a couple who were joint tenants of a council house owned first by Birmingham City Council and then by Solihull MBC.
Mr and Mrs Hickin took over the tenancy in 1967, the court heard. It became a secure tenancy when Part II of the Housing Act 1980 was implemented on 3 October of that year.
Mrs Hickin continued to live there, with her daughter Elaine, but Mr Hickin moved out “at some time after 1980”.
Delivering judgment in Solihull Metropolitan Borough Council v Hickin  UKSC 39, Lord Sumption said the appeal raised a “short but difficult point of law” about the transfer of secure tenancies where a property is let to joint tenants.
He said after Mrs Hickin’s death, the council served a notice to quit on her absent husband and began possession proceedings against Elaine.
Elaine argued that the common law right of her father was displaced by Section 89 of the 1985 Act and the tenancy vested in her.
Lord Sumption said the Housing Act 1985 had been amended but the relevant provisions were those in force at the time of Mrs Hickin’s death in 2007.
He said that, on the facts of the case, Mr Hickin would suffer no detriment from losing the tenancy because “his interest as the surviving joint tenant was of little if any real value” to him.
In contrast Lord Sumption said he had “every sympathy” for Elaine Hickin’s position, but the issue could not be decided on her particular facts.
“If she is right in principle, the operation of section 89 will have a much wider application. It will apply to defeat the interest of a surviving joint tenant who is out of occupation but wishes to return to the property on the death of the deceased and has every interest in doing so, for example because the survivor is the deceased’s wife who left the property on account of her husband’s violence or abuse.
“It will apply to defeat the interest of a survivor who has been in occupation throughout but is not a member of the deceased’s family.”
Lord Sumption gave other examples of people who would lose out if Section 89 took priority over common law, including divorced wives.
“The examples that I have cited are not fanciful,” he said. “What they show is that although it may seem arbitrary, even capricious, for Elaine Hickin’s claim to be defeated on account of the rights of her absent father, equally arbitrary and capricious consequences follow from any alternative construction.
“It is difficult to say which consequences will arise more often. Nor does it matter. Any system of statutory protection which deals with interests as varied as residential tenancies and depends for its practical operation on the accidents of cohabitation, matrimonial break-up and death will inevitably give rise to anomalies at the margins.
“But the scope of the rights created and the circumstances in which they arise are questions to be resolved on a principled basis. It is not productive, on an issue like this one, to decide it by reference to the competing anomalies and injustices that result from each side of the argument.”
Lord Sumption dismissed Elaine Hickin’s appeal. Lord Walker agreed, but Lords Mance and Clarke dissented.