CA-2024-002756 - [2025] EWCA Civ 1038

It is common ground that, unlike the Rent Act 1977 which used the open-textured expression “member of the … tenant’s family” without further definition, section 113 was intended to comprise a closed list. In enacting a closed list, Parliament intended to achieve certainty, a quality which is very desirable in the arena of local authority housing with which these statutory provisions are concerned. Although a rigid list may lead to unfairness at the edges, its introduction leads to clarity and the avoidance of costly and time-consuming litigation as to who is and who is not a member of the tenant’s family for this purpose: Wandsworth LBC v Michalak [2002] EWCA Civ 271, [2003] 1 WLR 617 at [14].

In Sheffield CC v Wall [2010] EWCA Civ 922, [2011] 1 WLR 1342 this court considered the position of a foster child. The court held that a foster child did not fall within section 113, even though he had been brought up by the deceased tenant as if he had been her own child. Once again, the court emphasised that section 113 was a closed list. Importantly, Ward LJ said at [27]:

“In our judgment the words “a person is a member of another's family within the meaning of this Part if” are to be construed to mean that he is only a member of the family if he can bring himself within its ambit. Thus “child” must be limited to the closed categories stipulated in section 113(2), namely blood relationships, step-children and illegitimate children. When Parliament wished to extend the meaning to cover de facto relationships, it did so expressly, for example, by defining “spouse or civil partner” to include those who live together as husband and wife or as if they were civil partners. Absent such amplification there is in our judgment no room for extending the meaning of a “child” to cover a foster child. This definition of the terms distinguishes the Housing Act cases from the Rent Act cases and the flexibility afforded by the Fitzpatrick case does not apply in this case.” (Emphasis added)

He added at [29]:

“We have great sympathy for Mr Wall who was to all intents and purposes Mrs Wall’s son but he was short of that vital piece of paper—the adoption order—and without it he falls outside the definition of “child” in section 113 unless that has to be read and given effect in a way which is compatible with his Convention rights.”

I take from these passages the proposition that a “de facto step-child” will not fall within the definition of “member of the family” in section 113 and that the want of a “vital piece of paper” can be fatal to a claim to succeed. In the present case, on Islington’s interpretation of the policy, the “vital piece of paper” is evidence that Mr Seales and Ms Patel were either married or in a civil partnership.

I will return to the question of Convention rights later in this judgment.