New Judgment: Austin v Mayor and Burgesses of the London Borough of Southwark  UKSC 28
23 Wednesday Jun 2010
On appeal from:  EWCA Civ 66
The appellant contends that he lived in his brother’s home (with which his brother held a secure tenancy) for the 12 months preceding his death, caring for him during his terminal illness. The appeal arises from the efforts of the appellant to resist the Authority’s efforts to evict him from the property. The issues were whether pursuant to the Housing Act 1985, s 82(2) the tenancy continued until his death, with the effect that the tenancy could transmit to the appellant via the deceased’s estate. Secondly, whether the statutory right of a former secure tenant to apply to the court to postpone enforcement of a possession order, pursuant to the Housing Act 1985, s 85(2), terminates on the death of a tenant, or is capable of transferring to the appellant so as to allow him to apply to the court to postpone the possession order. Appeal unanimously allowed. The Supreme Court held that the tenant’s right to apply to the court to postpone enforcement of a possession order, and thus revive the secure tenancy, can survive death and transmit to a successor. With regards to s 82(2), it would not be appropriate for the Supreme Court to disturb the understanding of s 82(2) that a secure tenancy is terminated immediately upon any term of a conditional possession order being breached. This view has prevailed since Thompson  1 WLR 1425. With regards to s 85(2), it must be resolved by construing the 1985 Act as a whole. The tenant’s death does not prevent the court from exercising its power under s 85(2) of the 1985 Act to postpone the effect of a possession order. This preserves the discretion of the court to do what is just in all the circumstances of the case, which itself provides a protection for the landlord that would be absent if an alternate construction was adopted.