Discretionary Tenancies: When the Council Can Let You Stay

A discretionary tenancy is a new tenancy that a council or housing association can choose to grant to someone still living in the home when a council tenant dies but who has no legal right to take the tenancy over. The word discretionary carries the whole meaning: the landlord decides, using its own policy, and it is entitled to say no. It is a decision, not a right you can insist on.

That distinction is the heart of it. Statutory succession — the automatic right to inherit a social tenancy — is narrow, and it normally runs out after a single use. When it does not apply, the person left in the property is not a tenant at all and, strictly, has no right to remain. A discretionary tenancy is the route by which a landlord can let them stay regardless. Many landlords do, in the right circumstances. None of them are obliged to.

If you are reading this in the days after a parent, partner or the person you cared for has died, and someone from the council has said there is "no right to succeed", this page explains what that means, who tends to be offered a fresh tenancy instead, what to put in the request, and how honest the odds really are.

The short answer: it is a favour the landlord can grant or refuse

When a social tenant dies, one of three things is true. Either someone in the household has a statutory right to succeed and simply becomes the tenant; or the tenancy comes to an end and the household has to leave; or the landlord uses its discretion to offer a fresh tenancy to someone who had no right to one. A discretionary tenancy is that third path.

Because it is discretionary, it is governed by the landlord's own tenancy or allocations policy rather than by a single rule that applies everywhere. Two councils twenty miles apart can take different views of an identical situation, and a housing association can differ again. That is frustrating when you want a straight answer, but it also means the request is worth making thoughtfully, because a well-evidenced case genuinely changes the outcome.

The position is different for private renters, where a tenancy is a contract that passes to the estate rather than something a landlord can choose to hand on. If your late relative rented privately rather than from a council or housing association, the mechanics in whether a private tenancy ends the day the tenant dies are the ones that apply to you, not this page.

What a discretionary tenancy actually is

A discretionary tenancy is, in plain terms, the landlord granting a brand new tenancy in the name of someone who was living there, so that they can stay on lawfully. Some landlords call it a further tenancy or simply a fresh tenancy in their paperwork. The label matters less than the substance: it is a new agreement, with its own start date, and it is offered rather than owed.

It is not the same as succession, and the difference has consequences. A successor steps into the existing tenancy and keeps its history and, often, its terms. Someone granted a discretionary tenancy is starting again, which means the landlord can attach conditions — most commonly a move to a smaller or more suitable property where the current home is larger than the household now needs. Being offered a tenancy "on condition you transfer" is still a good outcome, but it is a different one from staying put, and it is worth understanding which you are being offered.

A discretionary tenancy also sits apart from the council's separate duty to help if you become homeless. Those are two different systems, and being turned down for one does not decide the other. If no tenancy is offered and you have nowhere else to go, the council's homelessness service is a distinct route with its own assessment.

When you need one: no automatic right to succeed

You only reach the question of a discretionary tenancy when nobody has a statutory right to succeed. It helps to know why that right so often does not apply.

For council secure tenancies and most housing association tenancies, the law allows one succession on death. The strongest claim belongs to a husband, wife or civil partner who was living in the home as their only or principal home at the time of death. For older tenancies, and where the written agreement allows it, a cohabiting partner or another family member who lived there for a qualifying period could also succeed. Since the succession rules were narrowed by the Localism Act 2011 for newer secure tenancies, the automatic statutory right centres on a spouse or civil partner, though the tenancy agreement itself can grant wider rights — which is why the agreement is the first document to find and read.

Two facts then decide a great deal. The first is whether the tenancy has already been succeeded once, because a second statutory succession is not normally available; if your parent was themselves a successor, the automatic right may already be spent. The second is who you were to the tenant. An adult child, a grandchild, a sibling or a carer generally has no statutory right to succeed to a newer tenancy, however long they lived there. That is precisely the gap a discretionary tenancy exists to fill. You can read the full framework in our guide to renting and tenancy after a death.

Who councils and housing associations usually say yes to

Discretion is not a coin toss. Landlords publish or follow internal policies, and certain circumstances come up again and again as the ones that succeed.

• Resident adult children who lived there a long time. Someone who grew up in the home, or returned and lived there for years as their settled home, is a far stronger case than someone who moved in recently.
• Kinship carers raising the tenant's children. Where the person who has died was raising grandchildren or other relatives' children, keeping those children in their home and school carries real weight.
• Live-in carers who gave up their own home. A carer who moved in, gave up a previous tenancy and has nowhere else to return to is in a sympathetic position, particularly with evidence of the caring role.
• Disabled household members, especially where the home suits their needs. If you need the home as it is — and particularly where it has been adapted for a disability — the argument to move you out weakens considerably, because a home that still meets a real need is one a landlord is far less likely to reclaim.

Three things run underneath all of these: how long you have genuinely lived there, whether you have anywhere else to go, and whether the property is the right size for you. Long residence, real need and a good fit help. Occupying a scarce three-bedroom family house on your own works against you, because the landlord has a waiting list of families who need exactly that home.

How to ask, and what to put in the request

Do not wait to be offered something. Write to the landlord as soon as the death is registered, say plainly that you live in the property and are asking to be considered for a discretionary tenancy, and set out your circumstances. Ask them to send you the policy they will apply, so you know what they are weighing.

Evidence is what turns a sympathetic case into a granted one. Gather proof that the home has genuinely been yours — utility bills and bank statements in your name at the address, entries on the electoral roll, GP or school registration, benefit or Council Tax letters — going back as far as you can. Then evidence of why this matters: a caring role, a disability and any occupational therapy assessment, the ages of children in the household, and the fact that you have nowhere else to live. Keep every letter, and ask for the decision, and its reasons, in writing so that you can question or challenge a refusal.

Above all, keep paying the rent or occupation charge while the request is being decided. Arrears hand the landlord an easy reason to say no and undercut the picture of a reliable tenant you are trying to present. If money is suddenly tight because a household income has gone, deal with that head-on rather than letting payments slip — and remember that once you are the only adult in the property you should tell the council, both to claim the single person discount on Council Tax and because it is part of showing the home is now yours.

If the answer is no: rehousing, moving and money

Sometimes the answer is no, and it is better to plan for that than to be surprised by it. A refusal does not mean bailiffs the next morning: the landlord still has to follow a lawful process to recover the property, and if you would otherwise be homeless the council has a separate duty to assess you, which can carry a priority need where there are children or a disability. Get advice from a housing specialist at Citizens Advice or Shelter before you agree to leave, and do not sign anything that gives up occupation until you have.

The harder edge of a refusal is money. Moving means finding a deposit and rent in advance for a new place, removals, and the sheer cost of setting up a home from scratch, usually on a household that has just lost an income. If the person who died was the tenant, any deposit on the old home belongs to their estate rather than to you, and what happens to a tenancy deposit when a tenant dies explains why little of it may come back to help fund the next one. This is the part worth thinking about while the person whose tenancy it is is still alive. Because the tenancy itself cannot always be passed on, the thing that reliably helps the people left behind is money of their own — enough to fund a deposit and a move on their own terms rather than depending on a landlord's goodwill.

Life cover is one way to put that money in place. For someone who wants to leave a fixed sum whenever death comes rather than only within a set term, a whole-of-life policy is designed to pay out on death rather than expire, which suits a goal like "make sure whoever is living with me could afford to move". What an insurer will offer always depends on age, health and underwriting, and cover is never guaranteed, but it costs nothing to find out — you can compare life insurance quotes through an FCA-authorised broker who can price it against real circumstances. For a lodger, incidentally, there is even less protection than a family member has, as what happens when the homeowner you lodge with dies explains.

Scotland and Northern Ireland

Housing is devolved, so the framework differs by nation even though the idea of landlord discretion exists across the UK.

In Scotland, a Scottish secure tenancy has its own statutory succession rules under the Housing (Scotland) Act 2001 and later reforms, and the list of who can qualify — a spouse, civil partner, cohabiting partner or certain other household members who occupied the home — works differently from England, with its own residence conditions. Where no one qualifies, a Scottish council or housing association can still consider granting a new tenancy at its discretion. In Northern Ireland, tenancies with the Housing Executive and housing associations are governed by separate legislation again, with their own succession categories and their own discretionary route. In every nation the practical advice is the same: find and read the tenancy agreement, ask in writing as soon as the death is registered, evidence your residence and your needs, keep paying, and take free housing advice before you accept that you must leave.

Frequently asked questions

What is a discretionary tenancy?

It is a new tenancy a council or housing association may choose to grant to someone living in the home who has no legal right to succeed. It is a decision rather than an entitlement, and each landlord has its own policy on who it will consider and on what terms. Because it is a fresh tenancy rather than a succession, the landlord can attach conditions, such as a move to a smaller or more suitable property.

Who do councils usually consider?

Policies often name resident adult children who lived there for a long period, kinship carers raising the tenant's children, live-in carers who gave up their own home, and disabled household members. Long residence, having nowhere else to go and the property being the right size for you all help the case. Occupying a home larger than you now need works against it, because the landlord has households on the waiting list who need that space.

How do I apply for one?

Write to the landlord as soon as the death is registered, say that you live there and are asking to be considered for a discretionary tenancy, and attach proof of residence and your circumstances. Ask for a copy of the policy they will apply and for any decision in writing with its reasons. Keep paying the rent or occupation charge while the request is being decided, because arrears give the landlord an easy reason to refuse.