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Cite as: [2017] EWCA Civ 189, [2017] HLR 21

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Neutral Citation Number: [2017] EWCA Civ 189
Case No: C1/2014/4287

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court, Queen's Bench Division,
Administrative Court
Mr Justice Knowles CBE

Royal Courts of Justice
Strand, London, WC2A 2LL
24/03/2017

B e f o r e :

LORD JUSTICE JACKSON
LORD JUSTICE UNDERHILL
and
SIR STEPHEN TOMLINSON

____________________

Between:
SUSAN TURLEY

Appellant
- and -


LONDON BOROUGH OF WANDSWORTH

SECRETARY OF STATE FOR COMMUNITIES
AND LOCAL GOVERNMENT




Respondents

____________________

Mr Iain Colville and Mr Richard Granby (instructed by TV Edwards LLP) for the Appellant
Mr Wayne Beglan (instructed by Legal Services, London Borough of Wandsworth) for the First Respondent
Mr Ben Lask (instructed by the Treasury Solicitor) for the Second Respondent
Hearing dates: 30 November and 1 December 2016
Written submissions: 17 and 23 February 2017

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Underhill :

    INTRODUCTION

  1. The Appellant, Susan Turley, was the long-term partner of Roger Doyle. They had four children. In 1995 they moved into a four-bedroom house in Battersea Park Road in London: it was on the ground floor and had a garden. Mr Doyle was the sole tenant. The landlord was the First Respondent, the London Borough of Wandsworth ("the Council"). The tenancy was a secure tenancy within the meaning of the Housing Act 1985. In 2010 there was a breakdown in the relationship between the Appellant and Mr Doyle, and in December he moved out (though without giving up the tenancy), leaving her living in the flat with the younger children, then aged 17 and 15. He came back in January 2012, but he was by then seriously ill and sadly he died on 17 March that year.
  2. The regime under the 1985 Act as it stood in 2012 provided for family members who were residing with a secure tenant at the time of his or her death in certain circumstances to succeed to the tenancy. However, on the ordinary reading of the provisions in question, which I set out below, the Appellant does not fall within the definition of a family member and so has no entitlement to succeed to Mr Doyle's tenancy. The Council has accordingly required her to vacate the house. The essential issue raised by this appeal is whether that state of affairs gives rise to a breach of her rights under the European Convention of Human Rights.
  3. By a judgment handed down on 8 December 2014 Knowles J dismissed the Appellant's claim. She appeals to this Court with the permission of Moore-Bick LJ. She has been represented before us by Mr Iain Colville and Mr Richard Granby the Council by Mr Wayne Beglan; Mr Colville and Mr Beglan appeared below. Because the case includes a claim for a declaration of incompatibility the Secretary of State for Communities and Local Government was joined as an interested party, and is the Second Respondent before us. He is represented by Mr Ben Lask, who also appeared below.
  4. On 8 February 2017, when this judgment was in an advanced state of preparation, the Supreme Court handed down its judgment in In the matter of an application by Denise Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8, [2017] 1 WLR 519, which arguably has a bearing on the issues raised by this appeal. We gave permission for the parties to lodge written submissions addressing the implications of that decision.
  5. THE STATUTORY PROVISIONS

  6. The right of succession to a secure tenancy is governed by section 87, which forms part of Part IV, of the 1985 Act. This reads (so far as relevant) as follows:
  7. "A person is qualified to succeed the tenant under a secure tenancy if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either –
    (a) he is the tenant's spouse or civil partner, or
    (b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;
    …"

    "Spouse" is not a defined term but it evidently connotes legal marriage; "civil partner" means a partner under the Civil Partnership Act 2004. For convenience, I will use the term "spouse" to cover both. I will refer to the latter part of limb (b) as "the twelve-month condition".

  8. Who counts as a "member of the tenant's family" for the purposes of Part IV is defined by section 113 of the Act as follows:
  9. "(1) A person is a member of another's family within the meaning of this Part if –
    (a) he is the spouse or civil partner of that person, or he and that person live together as husband and wife or as if they were civil partners, or
    (b) he is that person's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
    (2) For the purpose of subsection (1)(b) –
    (a) a relationship by marriage or civil partnership shall be treated as a relationship by blood,
    (b) a relationship of the half-blood shall be treated as a relationship of the whole blood,
    (c) the stepchild of a person shall be treated as his child, and
    (d) an illegitimate child shall be treated as the legitimate child of his mother and reputed father."

    For convenience I will in this judgment refer to a person falling within the second half of section 113 (1) (a) ("or he and that person" etc) by the term – inaccurate but hallowed by long usage – "common law spouse". I will refer to family members of the kinds identified in section 113 (1) (b), as glossed in sub-section (2), as "blood relatives" (though strictly that too is not quite accurate because of the inclusion of step-children).

  10. It will be seen that (subject to the points which I consider below) the Appellant has no right to succeed to Mr Doyle's tenancy under those provisions because (1) she was not his spouse or civil partner so as to fall under limb (a) of section 87; and (2), although she was a member of his family because they were living together as husband and wife within the meaning of section 113 (1) (a), she could not satisfy the twelve-month condition in limb (b) of section 87: only about three months elapsed between his moving back in and his death. (I should say that the Council disputes whether Mr Doyle was in any event still a secure tenant at the time of his death; but that question can be ignored for present purposes.)
  11. It is convenient to mention at this stage two changes, or imminent changes, in the relevant law since the date with which we are concerned.
  12. First, the Localism Act 2011 inserted, for secure tenancies granted after 1 April 2012, a new section 86A into the 1985 Act. One of the effects of that section was to equate the position of a common law spouse with that of a legal spouse and thus to remove the effect of the twelve-month condition in such a case. (Another was to remove the succession rights of the other family members altogether.) That change did not apply to Wales, where section 87 remains in force even for tenancies granted after 1 April 2012. Section 86A does not apply in the present case because Mr Doyle's tenancy was granted before 1 April 2012.
  13. Secondly, the Housing and Planning Act 2016 will, when it is brought into force, amend the 1985 Act further so as to bring the succession provisions for pre-1 April 2012 secure tenancies into line with those for tenancies granted since that date. However it will only do so in cases where the tenant dies after the amendment has come into force (see section 86G, introduced by Schedule 8 of the Act, and in particular sub-section (8)). We were told that changes will also be made to the legislation in Wales, though by a different statutory route.
  14. THE APPELLANT'S CASE IN OUTLINE

  15. The Appellant's case is based on articles 8 and 14 of the Convention. Those articles read as follows:
  16. "Article 8: Right to respect for private and family life
    1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
    Article 14: Prohibition of discrimination
    The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
  17. The Appellant contends that there is no material difference, from the point of view of succession to a secure tenancy, between the status of spouses and common law spouses – or, to put it another way, their situations are in the relevant respects analogous. If that is so, the fact that the succession rights of the former are unconditional while those of the latter are subject to the twelve-month condition would prima facie constitute discrimination, contrary to article 14, in an area affected by Convention rights, namely occupation of the home, which falls under article 8. Although the difference in treatment would not involve a breach of article 14 if it could be justified the Appellant says that no justification can be shown in this case.
  18. The Appellant's primary case is that in order to avoid that breach of her Convention rights the relevant provisions of the 1985 Act can be construed, in accordance with section 3 of the Human Rights Act 1998, so as to accord her a right to succeed to the tenancy; or that the Council is in any event obliged by section 6 of the 1998 Act to grant her a fresh secure tenancy of the flat. As a fallback she seeks a declaration of incompatibility under section 4.
  19. THE JUDGMENT OF KNOWLES J

  20. Knowles J was prepared to assume that the position of spouses and common law spouses was analogous (see para. 15 of his judgment) so that the application of the twelve-month condition (to which he referred as "the additional condition") was indeed prima facie discriminatory; but he found that the discrimination was justified. Since I will have to traverse essentially the same ground I will not attempt a summary of his reasoning. I will refer to particular passages as necessary below.
  21. THE APPEAL

  22. By her grounds of appeal the Appellant challenges the Judge's decision that even if her position was analogous to that of a spouse the imposition of the twelve-month condition was justified. If she is successful on that issue she also contends that her position is indeed analogous. By their respective Respondent's Notices the Council and the Secretary of State seek to uphold the Judge's reasoning based on justification but contend that in any event the Appellant's position is not analogous to that of a spouse. I take the justification issue first.
  23. JUSTIFICATION

  24. I will proceed in the conventional manner by considering first whether the twelve-month condition serves a legitimate aim and secondly whether it is a proportionate means of achieving that aim, though in truth there is much overlap between the two questions.
  25. LEGITIMATE AIM

  26. At para. 20 of his judgment Knowles J said:
  27. "For two people to be treated as living together as if married or as if civil partners already requires more to be proved than that those two people simply live together (see, for example, City of Westminster v Peart (1991) 24 HLR 389 at 397 (CA) per Sir Christopher Slade) . It is therefore perfectly fair to ask why the additional condition is there, when there is already the requirement for proof that the two people must be living together as if married or as if civil partners."

    In answering that question he started by referring to a number of authorities which point out that whether a couple are living together as if married depends on an assessment of a number of factors and is not always easy to decide, but that the length of time that they have been living together is important. I need not repeat all his citations here, since the point is not controversial, but they include the speech of Lady Hale in Ghaidan v. Godin-Mendoza [2004] UKHL 30[2004] 2 AC 557, at para. 139, and the judgment of Sir George Waller in Chios Property Investment Co Ltd v Lopez (1987) 20 HLR 120, at p. 122. Having established that point, he said that:

    "… to require a state of affairs to be demonstrated for a period of time serves a legitimate aim. The aim is reliability in the assessment of whether two people are living together as if they were spouses or as if they were civil partners."
  28. In his submissions before us Mr Colville accepted that that was indeed the aim behind the imposition of the twelve-month condition. He was right to do so, but I think the point is worth spelling out a little more fully. As the Secretary of State emphasised in the evidence which he adduced (in the form of a detailed witness statement from Frances Walker, a senior policy adviser in the Department), local authority secure tenancies are a valuable and limited resource. Although it has long been policy to grant a (limited) right of succession to family members for whom the property has also been their home, it is necessary to have regard also to the interests of others who are on the council waiting list and of councils themselves in making best use of housing stock. For that reason it has been policy to require a degree of permanence in the relevant relationship: it would not be fair to grant succession rights to family members whose relevant relationship with the tenant is essentially transient. That requirement is inherently satisfied in the case of spouses who have entered into a legal marriage or civil partnership: by doing so they have formally committed themselves to a relationship characterised by "permanence and constancy" (to use the language of Lord Dyson MR in the case of Swift to which I refer below). But there is no such formal commitment in the case of a common law spouse or other family member of the kind defined in section 113. The purpose of imposing the twelve-month condition is that a reasonably long period of living together may be taken to demonstrate the same element of permanence and constancy in the relevant relationship. (Of course the relationship of blood relatives is also in one sense inherently permanent. However the relationship which the condition is in their case testing is the relationship of living together with the tenant as a family member.)
  29. I am not sure that Mr Colville was prepared to concede that the aim so identified was legitimate, but I have no doubt that it is. As part of the balance of interests to which I have referred it is plainly legitimate to seek to limit rights of succession to family members whose relevant relationship is of a permanent character. And it is also plainly legitimate (subject to the issue of proportionality) to treat that requirement as sufficiently satisfied in the case of legal spouses, whose relationship is inherently permanent in character, but not by other relationships which do not involve the same formal commitment.
  30. PROPORTIONALITY

  31. Accordingly I regard the issue before us as being whether the twelve-month condition is manifestly without reasonable foundation. As to that, an important preliminary question is what is the appropriate standard of review in assessing the proportionality of the twelve-month condition. This was not addressed explicitly by the Judge but it was fully debated before us. Mr Lask submitted that the difference of treatment between spouses and common law spouses represented a legislative choice of a kind where the courts have always recognised that the legislature enjoyed a wide margin of appreciation. He referred to Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617, in which a distant relative of a secure tenant (to be precise, the brother-in-law of his first cousin once removed) who had been living with him when he died claimed that the fact that he was not entitled to succeed to the tenancy was a breach of his rights under articles 8 and 14 of the Convention. This Court upheld the decision of the County Court dismissing his claim. Brooke LJ said, at para. 61 (p. 631A):
  32. "It appears to me that this is pre-eminently a field in which the courts should defer to the decisions taken by a democratically elected Parliament, which has determined the manner in which public resources should be allocated for local authority housing on preferential terms."
  33. Mr Lask submitted that this approach was substantially the same as that now embodied in the criterion of whether a measure was "manifestly without reasonable foundation", which is recognised in the Strasbourg jurisprudence as applicable in cases "involving general measures of economic and social strategy". He referred us in particular to the decision of the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR 13, where the Court said, at para. 61:
  34. "The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ([Burden v. the United Kingdom [GC], no. 13378/05, ECHR 2008] § 60). The scope of this margin will vary according to the circumstances, the subject-matter and the background. A wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature's policy choice unless it is 'manifestly without reasonable foundation' (Stec and Others v. United Kingdom, [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006)."

    Carson concerned the pension rights of UK nationals living abroad, but the "manifestly without reasonable foundation" test has since been applied in the Supreme Court in cases involving welfare benefits, and more particularly housing benefit: see R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR 1449 (see per Lord Reed at para. 93 (p. 1478 F-G)) and R (Carmichael and Bourke) v Secretary of State for Work and Pensions [2016] UKSC 58, [2016] 1 WLR 4550 (see per Lord Toulson, at paras. 29-32 (pp. 4563-5)). Mr Lask submitted that, although the claim in the present case did not involve a cash benefit, decisions about rights to social housing were of essentially the same character. In that connection he referred to Bah v United Kingdom (2012) 54 EHRR 21, in which the applicant complained that on account of her (and her son's) immigration status she had been denied access to social housing in breach of her Convention rights. The ECtHR observed, at para. 47 (p. 791), that "given that the subject matter of this case – the provision of housing to those in need – is predominantly socio-economic in nature, the margin of appreciation accorded to the Government will be relatively wide", citing in support Stec, which is the fons et origo of the "manifestly without reasonable foundation" test.

  35. Mr Lask also pointed out that the status which was the basis of the difference in treatment – being a "common law" as opposed to a legal spouse – was not a "suspect ground" in the sense explained by Lord Hoffmann in the well-known passage of his speech in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173 (see paras. 15-16 (pp. 182-3)), and that the court could and should apply a less rigorous standard of review. He referred us to a similar passage in the judgment of the ECtHR in Bah, where it said (again, at para. 47 (p. 790)):
  36. "The Court recalls that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. As observed above … immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. In the applicant's case, while she entered the United Kingdom as an asylum seeker, she was not granted refugee status. She cannot therefore be described as a person who was present in a Contracting State because, as a refugee, she could not return to her country of origin. Furthermore, she subsequently chose to have her son join her in the United Kingdom. Given the element of choice involved in immigration status, therefore, while differential treatment based on this ground must still be objectively and reasonably justifiable, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality."
  37. Mr Lask also drew attention to the fact that, as a provision of primary legislation, section 87 enjoyed a high degree of democratic legitimacy. It is clear from the debates on the bill that became the Housing Act 1980 (which contained the predecessors to the provisions of the 1985 Act with which we are concerned) that whether there should be a residence condition for family members, including common law spouses, was the subject of detailed consultation; among other things, the original proposal was for a six-month period but it was extended to twelve following representations by the local authorities.
  38. Mr Colville did not accept that this was a case where any specially wide margin of appreciation was applicable. He made two points. First, he submitted that the twelve-month condition was not itself a matter of social or economic policy but was no more than an "evidential tool": that is, it did not represent the underlying criterion for eligibility – namely a sufficient degree of permanence in the relevant relationship – but was simply a means of judging whether that criterion was satisfied. Secondly, he submitted that succession rights to secure housing could not be equated with welfare benefits.
  39. I take the second of those points first. For present purposes I can see no difference between access to social housing and access to welfare benefits. Both represent public resources – in the case of social housing a particularly scarce resource – the conditions for access to which must be pre-eminently a matter for political judgment. I agree with Mr Lask that that is apparent from Michalak: it can make no difference that in that case the relevant condition related to the definition of the class of family member potentially eligible rather than, as here, to the length of the relevant relationship. Subject to Mr Colville's other point, I think that Brooke LJ's observations in Michalak (see para. 20 above) are equally applicable here.
  40. At first sight there might seem to be rather more force in Mr Colville's other point – that is, that the twelve-month condition is evidential rather than substantive. I can see why the imposition of a condition which is essentially ancillary might not require the same degree of deference to the judgment of the legislator as the substantive condition to which it attaches. But I do not believe that that distinction is applicable in this case. The problem is that what might be regarded as the substantive condition here – i.e. that the relationship should have the necessary degree of "permanence and constancy" – is for practical purposes undefinable save by the adoption of an objective measure of some kind; and the choice of that measure is thus an essential part of the legislative task.
  41. Applying that standard, I turn to the substantive question. An important part of Mr Colville's submissions before us depended on the changes made by the 2012 Act (now reinforced by the 2016 Act): see paras. 9 and 10 above. He contended that they demonstrated that the twelve-month condition was in fact unnecessary, but in any event that if it had been justifiable when first enacted it had ceased to be so by the time that the 2011 Act was enacted and that Parliament should have applied the new regime not only to tenancies created prior to 1 April 2012 but in cases where the tenant had died prior to that date. I think it is clearest to consider first the position without regard to the subsequent legislation and then the question of retrospectivity.
  42. So far as the former question is concerned, I find it impossible to say that the imposition of the twelve-month condition was manifestly without reasonable foundation as a criterion for demonstrating the necessary degree of permanence and constancy. The fact that a couple have been living together for a minimum period of time is plainly the best available objective demonstration that their relationship has the necessary quality of permanence and constancy. The choice of twelve months as the period cannot be said to be without reasonable foundation: indeed if it were much shorter, its value as a marker of a permanent relationship would be slight. (I note that in the case of the legislation in issue in Swift, to which I refer below, and also in Brewster, the period was in fact two years.) It is true that it is, as Knowles J observed, something of a blunt instrument, but that is very often the case with a bright-line rule. And it is important to appreciate that local authorities are not precluded from granting a tenancy to a person left in occupation by the death of a secure tenant, including a common law spouse who cannot satisfy the twelve-month condition, if for particular reasons they consider it right to do so.
  43. I turn to the relevance of the 2011 and 2016 legislation. Plainly the mere fact that the statutory regime has changed does not mean that the old regime had always been unjustifiable; and Ms Walker's evidence made clear that the changes made in 2011 did not derive from any acknowledgment that that was the case. A similar argument was rejected by the House of Lords in R v Secretary of State for Work and Pensions, ex p. Hooper [2005] UKHL 29, [2005] 1 WLR 1681, which concerned the non-payment to widowers of widows' pensions. The Court of Appeal had placed weight, for the purpose of the issue of justification, on the fact that widow's pensions had since been abolished. Lord Hoffmann, with whom the other members of the House agreed, said at paras. 36-37:
  44. "36. [The reasoning of the Court of Appeal] seems to mean that whenever Parliament decided to make the change to equalise survivors' benefits in response to the gradual historic trend towards greater economic activity by women, it would follow that for some years there had been no objective justification for the previous system. It would always be the case that the changes over the preceding few years had been relatively modest. In my respectful opinion, this proposition is fallacious. It contradicts the earlier acceptance by the Court of Appeal, at para 63, that:
    'in answering this question a very considerable margin of discretion must be accorded to the Secretary of State. Difficult questions of economic and social policy were involved, the resolution of which fell within the province of the executive and the legislature rather than the courts. In this context we revert to the fact that the issue was the point in time at which benefits which had long been enjoyed by widows should be withdrawn. No statistical formula or calculation could provide a precise answer to this question.'
    37. The Court of Appeal seems to have treated the decision of Parliament in 1999 to abolish [widow's pension] as an acknowledgement that there could have been no possible reason for the legislature not taking such a step at that time and therefore as demonstrating that it should have taken the same step at an earlier date. But in my opinion the courts are not in a position to say that the 1999 decision was inescapably right or that a different decision, whether earlier or later, would have been inescapably wrong. It was a matter for legislative judgment."
  45. Mr Colville argued that even if that was right as far as it went, once the change was made it was not justifiable not to render it retrospective. I cannot agree with this either. The decision whether to make a change of this character retrospective is itself a question on which the legislature is entitled to a wide margin of appreciation. As Knowles J observed at para. 30 of his judgment, there is a close parallel between the situation in this case and that considered in Ratcliffe v Secretary of State for Defence [2009] EWCA Civ 39, [2009] ICR 762. The case concerned war pensions. Originally there was a distinction for the purpose of entitlement between the treatment of widows and bereaved unmarried partners. That distinction was removed by new legislation with effect from 5 April 2005 but only where death occurred after that date. The claimant, whose common law husband had died in 2004, claimed that the legislation should have been retrospective. Hooper LJ, giving the judgment of the Court, said, at para. 89 (p. 786 A-C):
  46. "At the end of the day this case, in my view, falls squarely within the now well-established principle that where alleged discrimination in the field of pensions is based on non-suspect grounds, courts will be very reluctant to find that the discrimination is not justified. Whatever the position to-day, historically the distinction in the War Pension Scheme between married and unmarried partners and between unmarried partners who fell within the very narrow criteria for a pension and other unmarried partners was justified. In 2003 the government recognised that the distinction was no longer justified, altered the Occupational Pension Scheme prospectively and announced its intention to make changes to the War Pension Scheme from some time in the future but also prospectively. The decision as from what point in time unmarried partners are put in an analogous position to spouses in the field of pensions is a decision for the government and is a decision with which the courts will not normally interfere."
  47. I regard that as exemplifying the correct approach. Ms Walker's evidence was that the Government took the straightforward view that the entire package of changes to succession rights introduced in 2012, of which the removal of the twelve-month condition was only part (and not the most significant part), should apply prospectively only, so as to avoid unsettling existing legal rights and expectations. Mr Lask summarised the effect of the evidence in his skeleton argument as follows:
  48. "It was … reasonable to maintain a bright line between existing and new tenancies. Had Parliament sought to introduce exceptions to the rule (e.g. for unmarried partners), this would have created further difficulties. It would have undermined legal certainty for both landlords and tenants, and could have impacted adversely on the rights of other family members under the preferential succession rules in [the 1985 Act]. Maintaining that bright line does not preclude landlords from granting new tenancies to persons left in occupation where they consider it appropriate to do so."

    I cannot regard such an approach as manifestly without reasonable foundation.

  49. Mr Colville also relied on the fact that there is no equivalent to the twelve-month condition in the succession provisions applying to statutory tenancies and assured tenancies in the private sector: paragraph 2 (2) of Schedule 1 to the Rent Act 1977 provides simply that "a person who was living with the original tenant as his or her wife shall be treated as the spouse of the original tenant", and section 17 (4) of the Housing Act 1988 is in substantially identical terms. Even if the regimes in question were substantially identical, it would not necessarily follow that the imposition of the twelve-month condition in the one but not the other was unjustifiable. But in any event they are not. As regards the Rent Act, the differences were spelt out by Brooke LJ in Michalak, at paras. 36-37 of his judgment, and I need not repeat them here. As regards assured tenancies under the 1988 Act, the parties submitted to Knowles J an agreed schedule of the differences between the two regimes, though the Appellant submitted that some of the differences were insubstantial. I need not reproduce it in full, but it included the facts that secure tenants, unlike assured tenants, have a right to take in lodgers, enjoy the right to buy and have a greater degree of security of tenure.
  50. Accordingly I believe that Knowles J was right to find that even if the situations of common law spouses and married spouses are analogous for the purpose of article 14 the difference in treatment between them was justified.
  51. In reaching his conclusion Knowles J placed considerable weight on the decision of this Court in Swift v Secretary of State for Justice [2013] EWCA Civ 193, [2014] QB 373. That case was concerned with section 1 (3) (b) of the Fatal Accidents Act 1976, the effect of which is that a common law spouse will only be a dependant for the purpose of the Act if he or she has lived with the deceased as husband and wife (or civil partner) for at least two years before the death. The issue was whether that provision gave rise to a breach of the article 14 rights of the claimant, whose common law husband had been negligently killed but who had been living with her for less than two years. The Law Commission had recently recommended the removal of that condition, and the Government had initially indicated its acceptance of the recommendation; but it had later decided not to proceed with amending legislation. This Court upheld the decision of Eady J dismissing her claim. Paras. 33-40 of the judgment of Lord Dyson MR, with whom Treacy and Lewison LJJ agreed, read as follows (pp. 389-390):
  52. "33. [Counsel for the claimant] submits that the legitimate aim [of confining the right to recover damages to those who had relationships of some degree of permanence and dependence] is sufficiently met by the requirement that the claimant and the deceased lived in the same household as husband and wife immediately before the date of the death. Nothing is gained by adding the requirement that there has been cohabitation for a period of at least two years. Cohabitation as husband and wife is of itself adequate proof of a relationship of sufficient constancy and permanence to warrant entitlement to claim under section 1 of the [Fatal Accidents Act].
    34. As [counsel for the respondent] submits, this approach is one possible view as to the degree of constancy and permanence that is required to justify conferring on a survivor a right of action against a tortfeasor. But bearing in mind (i) the broad margin of discretion that should be accorded to the legislature and (ii) the number of different interests that had to be taken into account, I consider that Parliament was entitled to take a different view. There is no obviously right answer. …. The important point, however, is that it has never been suggested that merely living together as husband and wife for a single day or week would establish the necessary degree of permanence or dependency required for a right of action.
    35. [Counsel for the claimant] relies strongly on the fact that the Law Commission and the Government considered that the existing law is unfair and unjust for the reasons which I have summarised above. The decision not to amend the [Fatal Accidents Act] was not taken because of a late change of mind as to the merits of the proposed amendments. It was taken simply because the Government had to focus its resources on other matters. But the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim … Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.
    36. In my view, Parliament was entitled to decide that there had to be some way of proving the requisite degree of permanence and constancy in the relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there cannot be a presumption in the case of short-term cohabitants, unlike that of married couples (section 1(3)(a)) or parents and their children (section 1(3)(e)) that the relationship is or is likely to be one of permanence and constancy. It was entitled to decide that it was therefore necessary to have a mechanism for identifying those cases in which the relationship between cohabitants is sufficiently permanent to justify protection under the [Fatal Accidents Act].
    37. I accept that the existing law can lead to some results which many would regard as unjust. This was recognised by the Law Commission and indeed the Government itself. Many would say that the proposals that were made for reform were fairer. But I do not accept Mr Weir's submission that section 1(3) in its existing form does not further the legitimate aim at all. The requirement of cohabitation for two years is a simple way of demonstrating a real relationship of constancy and permanence. It adds something to the mere fact that a couple lived together as husband and wife in the same household, possibly for a very short period, immediately before the date of the death.
    38. … I cannot accept that the two year requirement is arbitrary and is therefore disproportionate on that account. In my view, the policy decision that a relationship between cohabitants will only have the requisite degree of permanence and constancy to justify protection under the [Fatal Accidents Act] if a couple has lived together for at least two years immediately before the death was one which Parliament was entitled to make. …
    39. Parliament was entitled to prefer a bright-line distinction to an approach which depended on fact-sensitive decisions in each case as to whether the relationship was sufficiently constant or permanent to justify a right of claim under section 1 of the [Fatal Accidents Act]. It is now well understood that where Parliament chooses to draw a line, it is inevitable that hard cases will fall on the wrong side of it. But that is not a sufficient reason for invalidating it if in the round it is beneficial and it produces a reasonable and workable solution: see Carson per Lord Hoffmann at para 41 and Lord Walker at para 91; and R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15[2008] 1 AC 1312, at para 33 per Lord Bingham.
    40. In summary, the two year requirement provides greater certainty as to the scope of the [Fatal Accidents Act]; it ensures that the court has some evidence of past experience and the nature of the relationship to inform its assessment of damages …; and it reduces the need to conduct an intrusive and intimate inquiry into the nature and quality of the relationship, in order to establish whether it satisfies some objective standard of permanence and constancy."
  53. Mr Colville contended that Swift was of no real assistance in the present case. That was partly because it was concerned with different legislation affording a different class of rights. But more particularly he submitted that an essential difference was that in Swift Parliament had considered changing the law so as to remove the discrimination complained of but had decided not to do so, whereas here it had indeed made the changes in question but had failed to make them retrospective.
  54. I do not accept that contention. I accept that Swift is not strictly binding on us, and for that reason I have not put it at the centre of my reasoning. But it is very closely analogous. The particular distinction relied on by Mr Colville is in my view immaterial. The fact that Parliament had declined to implement the proposed changes was not central to the Court's reasoning – on the contrary. Four particular points made by Lord Dyson were relied on by Mr Lask and seem to me to be equally applicable in the present case:
  55. (1) All that was necessary was that the measure was proportionate: it did not have to be the only, or even necessarily the best, way of achieving the aim in question: see para. 35.

    (2) It was legitimate to have a condition designed to demonstrate the requisite quality of "permanence and constancy" – see para. 36.

    (3) It was legitimate to apply a bright-line criterion, notwithstanding that this would inevitably produce some hard cases – para. 39.

    (4) The Court recognised that Parliament was entitled to "a broad margin of discretion" – para. 34.

    In short, Swift strongly reinforces the conclusion which I have reached.

  56. The recent decision of the Supreme Court in Brewster does not shed any real light on the issue of justification in the present case. There the common law spouse of a member of a public sector pension scheme was entitled to the same pension as a widow provided that (a) she had cohabited with the scheme member for a minimum period (in fact two years rather than one, as here) and (b) the member had nominated her in writing. In her case the first condition was satisfied but the second was not. There was accordingly no consideration by the Court of the justifiability of the condition of a minimum period of cohabitation or of the test by which that justification should be assessed. The only issue was whether the second condition, requiring a formal nomination, constituted a breach of article 14 of the Convention, read with article 1 of Protocol 1: there is of course no equivalent condition in the present case. Lord Kerr, who delivered the only judgment, was willing to proceed on the basis that the correct test was whether the condition in question was manifestly without reasonable foundation (see para. 55 of his judgment (p. 537D)); and he concluded that it was. Mr Colville in his written submissions attempts to draw support from Brewster in three ways, which I take in turn.
  57. First, he contends that, even if the test is indeed whether the twelve-month condition is manifestly without reasonable foundation, Ms Brewster's success shows that the adoption of that test is not a "get out of jail free" card. No doubt that is so, but it does not advance the argument on the particular issue in this case.
  58. Secondly, he seeks to rely on Lord Kerr's endorsement, at para. 66 of his judgment (pp. 540-1), of the statements of the test of proportionality in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45[2012] 1 AC 621 and in Bank Mellat v HM Treasury (no 2) [2013] UKSC 39[2014] AC 700: Lord Kerr quoted in particular the four-fold summary given by Lord Reed in Bank Mellat at para. 74. But these are nothing new, and there was no attempt in Mr Colville's original submissions to suggest that anything was to be gained in the circumstances of the present case by analysing the Respondent's case in precisely those terms. Lord Kerr, unsurprisingly, acknowledged at para. 49 of his judgment (p. 535H) that "it may be appropriate to accord a wide margin of discretionary judgment to the conclusion of a decision-maker, particularly where it is the legislature that makes the choice and where the conclusion lies within the field of socio-economic policy" and referred to Swift with apparent approval as an example of that approach being properly applied. The whole thrust of his reasoning was that the nomination condition had nothing to do with any "socio-economic choice" (see in particular para. 64, at p. 540C).
  59. Thirdly, he points out that Lord Kerr made clear that less weight was likely to be attached to ex post facto justification of a measure affecting Convention rights, and he suggests that in the present case the justification advanced by the Secretary of State for the imposition of the twelve-month condition "contains substantial elements of ex post facto justification". I do not accept that that is so. The reason for the inclusion of the twelve-month condition is in truth self-evident, but in any event Ms Walker's evidence shows that it had been explicitly recognised from the inception of the legislation.
  60. "ANALOGOUS POSITION"

  61. Since I would uphold the Judge's conclusion on justification it is unnecessary for me to consider whether the position of the Appellant as a common law spouse is to be treated as analogous with that of a married spouse for the purpose of article 14; and since he did not address that question I prefer not to do so either. I would only note that in Brewster it was common ground that the two were analogous: see para. 47 of the judgment of Lord Kerr ( p. 535C).
  62. CONCLUSION

  63. I would dismiss this appeal. I am sorry for the Appellant because the comparatively brief interruption in her relationship with Mr Doyle after a long period of living together has had the consequence of depriving her of the right to succeed to the tenancy of the house which has been her home for many years. But bright-line rules will sometimes have hard effects, and they are not for that reason unlawful. The Council cannot be blamed for insisting on the rules, in circumstances where there is an acute shortage of social housing, particularly no doubt of flats of the size occupied by the Appellant. In that connection I should record that at an early stage, before the commencement of these proceedings, it offered her a three-bedroom flat in exchange for her current home; but she did not accept the offer.
  64. Sir Stephen Tomlinson:

  65. I agree.
  66. Lord Justice Jackson:

  67. I also agree.


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