Possession of council house–Council must not abuse power of eviction–No abuse in evicting unsatisfactory tenant, formerly on ‘lump,’ who had concealed the fact that he had obtained regular employment–Observations of central government about homelessness not statutorily binding in effect, though doubtless relevant to matters to be taken into consideration by council
This was an
appeal by Bristol City Council from a decision of Judge Sir Ian Lewis at
Bristol County Court on July 11 1974 refusing an order for possession of a
council house, 77 Shortwood Road, Hartcliffe, Bristol, occupied by the
respondents, Mr David George Clark and his wife.
Mr J Harman QC
and Mr C S Rawlins (instructed by Blyth, Dutton, Robins, Hay, agents for J A
Brown, of Bristol) appeared for the appellants, and Mr D Turner-Samuels QC and
Mr W Birtles (instructed by H Hodge) represented the respondents.
Giving
judgment LORD DENNING said that Mr Clark, the tenant, said he was employed in
the building trade on sub-contract work. Everybody knew what that meant; he was
‘on the lump,’ with no master and servant relationship, and therefore not a
person to whom the Attachment of Earnings Act 1971 could apply. After 1972 he
was frequently unemployed and failed to pay his rent when the rent collector
called. The council wrote to him from time to time for the money, and he sent
cheques which were returned ‘refer to drawer.’
Eventually, on September 27 1973, the director of housing gave him and
others who were persistently in arrears a clear warning in a letter that that
state of affairs could not be allowed to continue and that unless the accounts
were cleared by October 19 they would be served with notice to quit which would
not be withdrawn even if they subsequently cleared the accounts. But Mr Clark
was still in arrears, though while he was unemployed he received a rent rebate
and was in receipt of supplementary benefit. In those circumstances, Bristol
housing department got in touch with the social services department of Avon
County Council about the case, and in December the director of social services
told Bristol that they had investigated the circumstances of the family and
could not offer to guarantee payment of the rent.
He added:
It is appreciated
that this decision may result in the family being evicted from their present
home, and I confirm that this department does not object to such eviction
action being taken.
The position
was summarised in a report laid before the chairman of the housing department
in January 1974. It showed Mr Clark as unemployed and the weekly household
income with supplementary benefit as £38.27, rent only £6.90, yet arrears of
£45.20, and explained what had happened. The chairman authorised a notice to
quit to be given, to expire on February 11 1974. Mr Clark had in fact got
employment as a milkman, but he did not tell the council and continued to have
the rent rebate. He did eventually clear off the arrears, but not the past
rebates. In April 1974 the council took proceedings for possession in the
county court.
A member of
Bristol University put in a defence which said:
The local
authority does not require the property for the purpose of exercising its
powers under any enactment relating to housing. There are no arrears of rent
outstanding.
The court was
therefore asked to decline to make the possession order. The judge decided the
case in favour of the tenants. He was of the opinion that the council were
under obligation to give evidence that they required possession of the house
for their own housing requirements, for people whom they wished to house
themselves, and that as they had not given any positive evidence to that effect
they were not entitled to possession. He was influenced by cases under the
Small Tenements Recovery Act 1838, St Pancras Borough Council v Frey
[1963] 2 QB 586 and Harpin v St Albans Corporation (1969) 67 LGR
479, where it had been held that when proceedings were taken before magistrates
to recover immediate possession under the 1838 Act the housing authority had to
prove that they required the house for the purpose of housing. The judge
thought those cases were applicable because of section 158 (2) of the Housing
Act 1957, which at that time gave the housing authority power to recover
possession under the 1838 Act. But the power of going before magistrates under
the 1838 Act had been abolished in 1972, and such cases now had to go to the
county court, so that cases on the 1838 Act had no application. There was no
need for such evidence in the county court. The housing authority could
properly say in the county court: ‘This is a tenancy duly determined by notice
to quit; we are entitled to possession and an order of the court so far as the
law is concerned.’ That was sufficient
to determine the case, and the judge was in error in putting it on the ground
of the 1838 Act.
On the
council’s appeal the tenant had taken a quite different point. He said that the
council had abused their powers and ought not to be allowed to recover
possession. Although the housing authority had the statutory power of managing
property and dealing with it under sections 91 and 111 of the Housing Act 1957
(power to grant and terminate tenancies by notice to quit and take proceedings
for possession), and were not trammelled in any way by the Rent Acts,
nevertheless he (his Lordship) would agree with Mr Turner-Samuels that in
exercising their statutory powers councils must not abuse them. In saying
whether or not a council had abused those powers, the courts had always followed
the classic judgment of Lord Greene MR in Associated Provincial Picture
Houses Ltd v Wednesbury Corporation ([1948] 1 KB 223), to the effect
that it was the duty of the authority–in the present case the housing
authority–to take into account all relevant considerations, and not to take
into account irrelevant considerations, and to come to a decision on all the
pros and cons of the case. It might still be possible, as Lord Greene said,
that if they nevertheless came to a con-
it, the court might interfere. What was said here was that one relevant
consideration might be that if a man was in good employment, payment of rent
could sometimes be secured by an attachment of earnings order instead of taking
the extreme step of an eviction order; it might also be relevant to see what
was the social services view and what the effect would be of rendering a tenant
homeless. The court had been referred to all the sections on social security and
the duty of a local authority to provide temporary accommodation for the
homeless, and to circulars in which ministries pointed out the problems which
might arise. One of them said [Joint Circular 18/74, February 7 1974, issued by
the Department of the Environment and the Department of Health and Social
Security, para 2 in an appendix.]:
Rent arrears
should [not] be treated simply as a financial problem attracting as routine
penalties the issue of an eviction notice with the possible execution of any
subsequent possession order. To create homelessness with which the local
authority itself will have to deal, can only make matters worse both for the
tenant and his family and for the local authority.
That circular
indicated matters which might fairly be taken into consideration. He (his
Lordship) would not say whether or not the omission to take those matters into
account would be fatal. There was quite an argument that the council ought to
take them into account one way or the other. But there was no need to rule on
that in the present case, for it was quite plain that Bristol Corporation did
everything that could possibly be expected of them. They gave the man every
chance to pay the arrears, consulted the social services department before
evicting him, gave him rent rebates, and there could be no reason for them to
seek an attachment of earnings order when he had said that he was unemployed.
It went against him that he had not disclosed the fact that he had got
employment and had gone on getting rent rebates when he was not entitled to
them. So there was nothing on the facts in the suggestion that the council had
abused their powers. They exercised them perfectly properly. The order for
possession should be made and the appeal allowed accordingly.
Agreeing, LAWTON
LJ said that one constitutional problem of our time arose out of the use of
statutory powers given to local authorities and statutory corporations. The
appeal illustrated plainly two different approaches to its solution. Mr
Turner-Samuels had asked the court to say that when the council here concerned
exercised their powers under the 1957 Act they should have taken into
consideration specific factors which he identified. That would have
necessitated the court saying that the local authority had a duty in those
terms. Mr Harman had asked the court to approach the problem of whether there
had been any excess or abuse of power by looking at the evidence and nothing
more. He (his Lordship) preferred Mr Harman’s approach. The first reason was
that from 1920 onwards Parliament had entrusted local authorities with the
exercise of statutory powers under the Housing Acts. In so doing, Parliament
would have taken into account the fact that local authorities had a much better
idea of local conditions and needs than central government. In those
circumstances the court should be most reluctant to interfere with a local
authority’s exercise of their powers. They were under the democratic check of
having to meet the electorate from time to time, and were in a far better
position than the court could ever be in deciding whether the powers had been
exercised in a way which met with general approval. In addition, local
circumstances differed so widely. It might well be that in a particular local
authority area tenants were reluctant to pay their rent. They might prefer to
spend their money on other things, and it might be necessary, as a matter of
enforcing the management policy of the local authority, that persistent bad
payers should be evicted as an example to others. There could be no doubt that
under their statutory powers local authorities could not only choose their
tenants but could also evict them: see Shelley v London County
Council [1949] AC 56. He (Lawton LJ) agreed with the Master of the Rolls
about the court being able to interfere if there had been any abuse of power.
But there was not, in this case, evidence which would justify such
interference.
Also agreeing,
SCARMAN LJ said that Mr Turner-Samuels had based himself on the well-known
passage in the Wednesbury case (at p 233) in his submission on what were
the relevant matters which a local authority should take into account when
exercising its powers and duties under the 1957 Act. He (his Lordship) thought
that there was considerable substance in counsel’s general submissions, though
they failed on the facts of the case. Undoubtedly, the local authority had a
power of management, regulation and control, and one function of such
management, as was said in Shelley’s case, was the ability to select its
tenants. But Mr Turner-Samuels had submitted that the exercise of those powers
and duties must now be considered not exclusively in the limited context of the
Housing Act, but in the deeper, wider and more multifarious context which he
had described as ‘the social context.’
He (Scarman LJ) thought that it was right for counsel to make that
general submission, and it was clear from the evidence–particularly Circulars
74/72 and 18/74 from the Departments of the Environment and of Health and
Social Security–that local authorities were now invited by the central
government to have regard to such questions as homelessness and the Attachment
of Earnings Act 1971 before reaching a decision on whether to evict a tenant
who was in arrears with his rent. It was not possible to rely on the circulars
as imposing any direct statutory duty on a housing authority but they were a
good indication as to what were relevant matters within Lord Greene’s language
in the Wednesbury case. It was clear that the relevant matters had been
considered in this case. The case was a good illustration of the danger of
adumbrating general principles without first looking at the facts to see what
was applicable. Relevance and materiality would vary from case to case, and
there might well be a case where it would be most important for the chairman of
the housing committee, after consultation with the social services department,
to give careful thought to whether there should be eviction or application for
an attachment of earnings order. But that was not this case and accordingly the
decision below could not stand.
The appeal
was allowed.
