Rent (Agriculture) Act 1976 — Agricultural dwelling required for new agricultural worker — Accommodation occupied by former farmworker — Rehousing — Duty of housing authority under section 28 of 1976 Act as amended by Rent (Agriculture) Amendment Act 1977 — Former farmworker said not to be in ‘priority need category’ — Housing authority unable to offer expedited assistance, despite recommendation by the agricultural dwelling-house advisory committee (ADHAC) that the provision of alternative accommodation was ‘a matter of immediate urgency’ — Housing authority in breach of provisions of the 1976 Act — Application for judicial review
applicants, tenants of a farm of about 800 acres, sought possession of an
agricultural dwelling to house a new agricultural employee, the dwelling being
in the occupation of a former employee — The offer of a dwelling was essential
to recruit a suitable worker, but the applicants did not have any spare
accommodation — They therefore approached the local housing authority in
accordance with section 27 of the 1976 Act and requested that the advice of the
ADHAC should be obtained pursuant to section 28(3) — Although the latter had
reported favourably to the applicants and considered the matter urgent, the
attitude of the housing authority was unhelpful
an earlier application in respect of the same ex-employee by the plaintiffs’
predecessors had met with the same result suggested something in the nature of
a fixed attitude or policy on the part of the authority — The documentary
evidence showed that this was so — The view taken was that the applicants’
ex-employee was not in a ‘priority need category’ for housing and was, in fact,
in no better position than an applicant on the general housing list — Indeed,
as an applicant on the list he had ‘nil points’ — The ‘priority need category’
comprised a family with children, battered wives, old aged persons, those
nearing retirement age associated with frailty, disablement, mental illness,
pregnancy and young people under six risking exploitation — The authority had
to take into account their scarce resources, the deteriorating situation and
the competing needs — The ADHAC recommendations did not, in the authority’s
view, outweigh the other competing demands
accepting the authority’s genuine concern for vulnerable applicants and their
broad discretion, the judge concluded that they did not pay sufficient regard
to their duties under the 1976 Act — They did not even begin by giving the
notification imposed by section 28(6A) — That was a bad start, but they also
failed to take fully into account, as required by section 28(5), of the ADHAC
advice they had received — They did not ‘use their best endeavours’ (whatever
shade of meaning is given to these words) to provide suitable accommodation, as
required by section 28(7) — The authority’s duty, which was a duty owed to the
present applicants, to treat the ex-employee in occupation of the dwelling as
an applicant in a special category, was not recognised — An individual
applicant under section 27 was entitled to have his case considered in
accordance with the specific provisions of sections 27 to 29, even if housing
is very scarce
result, the judge granted an order of certiorari to quash the decision — He did
not order mandamus — He had no doubt that the council would reconsider the
application in accordance with section 28
The following
cases are referred to in this report.
IBM
United Kingdom Ltd v Rockware Glass Ltd
[1980] FSR 335
Overseas
Buyers Ltd v Granadex SA [1980] 2 Lloyd’s
Rep 608
Sheffield
District Railway v Great Central Railway
[1911] 27 TLR 451
David Mathias
(instructed by Stanley Tee & Co, of Bishop’s Stortford) appeared on behalf
of the applicants; Geoffrey Stephenson (instructed by the solicitor to East
Hertfordshire District Council) represented the respondents.
Giving
judgment, PILL J said: This is an application to quash a decision of the
East Hertfordshire District Council made on June 9 1988 whereby the council
declined to offer accommodation to Mr Gary Cowler who, at present, occupies 1
Warren Farm Cottages, Uphall Estate, Ware, Hertfordshire. This is a
dwelling-house in which the applicants, Dallhold Resources Management (UK) Pty
Ltd, have a leasehold interest. Mandamus is also sought to compel the council
to fulfil their statutory obligations.
The applicants
are the tenants in occupation of Uphall Estate. The estate is about 940 acres
in extent and the larger part of it is given over to Warren Farm, which is
about 800 acres in extent. The applicants farm Warren Farm. They seek to secure
possession of a dwelling-house on the estate. They seek possession so that the
accommodation can be used to house a new employee. Mr Cowler was formerly
employed as a farmworker but is no longer so employed. It is not possible to
recruit suitable agricultural workers without being able to give them
accommodation. The applicants are unable to offer other accommodation and
therefore seek possession of their former employee’s dwelling.
By their
letter of June 9 1988, the council, as housing authority, declined to offer
alternative accommodation to Mr Cowler and have maintained their position since
that date. The applicants submit that the council are in breach of their duties
under the Rent (Agriculture) Act 1976, section 28 of which imposes duties upon
a housing authority to whom an application is made under section 27. The long
title to the Act includes the words ‘An Act . . . to impose duties on housing
authorities as respects agricultural workers and their successors; and for
purposes connected with those matters’.
Section 27(1)
of the 1976 Act provides:
An application
may be made by the occupier of land used for agriculture to the housing
authority concerned (‘the authority’) on the ground that —
(a) vacant possession is or will be needed of a
dwelling-house which is subject to a protected occupancy or statutory tenancy,
or which is let on or subject to a tenancy to which subsection (2) below
applies, in order to house a person who is or is to be employed in agriculture
by the applicant, and that person’s family,
(b) the applicant is unable to provide, by any
reasonable means, suitable alternative accommodation for the occupier of the
dwelling-house, and
(c) the authority ought, in the interests of
efficient agriculture, to provide the suitable alternative accommodation.
It is common
ground that section 27 covers the present situation.
Section 28(3)
of the Act provides:
The
authority, or the applicant, or the occupier of the dwelling-house, may obtain
advice on the case made by the applicant concerning the interests of efficient
agriculture, and regarding the urgency of the application, by applying for the
services of a committee under section 29 of this Act.
Section 29
provides for the establishment of committees known as agricultural
dwelling-house advisory committees or ‘ADHAC’.
Section 28(5)
provides:
In assessing
the case made by the applicant and in particular the importance and degree of
urgency of the applicant’s need, the authority shall take full account of any
advice tendered to them by the committee in accordance with section 29 of this
Act, and in any legal proceedings relating to the duty imposed on the authority
by this section evidence shall be admissible of the advice so given.
Section 28(6)
provides:
The authority
shall notify their decision on the application in writing to the applicant, and
to the occupier of the dwelling-house, within 3 months of their receiving the
application or, if an application is made for the services of a committee under
section 29 of this Act, within 2 months of their receiving the committee’s
advice.
(6A) The notification shall state —
(a) if the authority are satisfied that the
applicant’s case is substantiated in accordance with section 27 above, what
action they propose to take on the application;
(b) if they are not so satisfied, the reasons for
their decision.
Section 28(7)
provides:
If the
authority are satisfied that the applicant’s case is substantiated in accordance
with section 27 above, they shall use their best endeavours to provide the
suitable alternative accommodation; and in assessing under this subsection the
priority to be given to meet the applicant’s case, the authority shall take
into account the urgency of the case, the competing claims on the accommodation
which they can provide and the resources at their disposal.
Section 28(8)
provides:
Without
prejudice to any other means of enforcing the duty imposed by subsection (7)
above, that duty shall be enforceable, at the suit of the applicant, by an
action against the authority for damages for breach of statutory duty.
The applicants
requested that the advice of an ADHAC should be obtained pursuant to section
28(3) of the Act. The committee tendered advice to the housing authority on May
16 1988. The advice was that in the interests of efficient agriculture and in
order to recruit and retain staff of the right quality, suitable alternative
accommodation should be provided for Mr Cowler in order that 1 Warren Farm
Cottages can be made available for a future employee on the farm. Having regard
to the forthcoming harvest, the need for further staff was indeed urgent and,
for that reason, the committee considered that such accommodation was a matter
of immediate urgency. I will refer a little later to the full wording of the
letter by which the council notified their decision not to offer alternative
accommodation.
The applicants
submit that it was the policy of the council not to discharge their duty under
section 28 and, alternatively, in their decisions as housing authority, they
ignored their duties under the section and made the material decision without
having any or any sufficient regard for their duties under the section.
The evidence
includes contemporaneous documents and two affidavits sworn by Mr John Miskin
Harris, senior housing officer in the housing department of the council. The
first was sworn on February 2 1989 and the second last Friday, on October 20
1989. Mr Stephenson, for the council, submits that para 4 of the first
affidavit of Mr Harris is the most important evidence in the case. Mr Mathias,
for the applicants, relies on the contemporaneous documents.
I refer first
to an earlier application which had been made under section 27. It was made by
the applicants’ predecessors on March 30 1987 and also related to alternative
accommodation for Mr Cowler. There have also been applications with respect to
another ex-employee of the applicants, Mr Brooks. He is an elderly man to whom
different considerations have applied, and Mr Brooks has now been housed.
When the
earlier application under section 27 was made, reference to ADHAC was requested
and advice was received. A council memorandum, dated June 11 1987, stated that
Mr Cowler was ‘non-priority re HP Act’. (That is the Homeless Persons Act.)
Following a
reminder on August 20 1987, the council wrote to the applicants’ predecessors
on September 2 1987 stating:
I am afraid as
Mr Cowler does not fall within a Priority Category as defined by the Housing
Act (Part III) 1985, we will not be able to provide alternative accommodation
despite the ADHAC recommendation.
When he has
been on the general housing waiting list for six months (December 1987) he will
be eligible for an interview with the Lettings Officer, to discuss his position
on the waiting list.
I am sorry to
send such a disappointing reply.
On behalf of
the then applicants, a review was requested. The council wrote on October 12
1987:
Further to
your recent letter of regret I can add nothing to my letter of September 2 1987
and suggest you urge Mr Cowler to make an appointment to visit my lettings
officer in December.
That
suggestion was taken up by Mr Cowler, and a meeting took place on January 13
1988. I have the council’s memorandum of that meeting, which was between Mr
Cowler and the council’s lettings officer. The memorandum includes:
Advised that
as applicant on list, Mr Cowler had nil points and that unless circumstances
change, there was no prospect of rehousing . . . I stated that we would assist
in whatever way was possible if he was finally evicted.
The National
Farmers’ Union had, by letter of October 20 1987, made representations to the
council in relation to the case. Following a reminder on November 6 1987, the council
replied on November 24 1987 in these terms:
Further to
your letter of November 6 1987, you will by now have received my interim
response and copy of letter sent to your office August 24 1979 clarifying the
Council’s position in general terms.
I would refer
you back to that letter, and suggest you take this in conjunction with section
28(7) concerning competing claims for Council accommodation and resources at
our disposal. It was the unfavourable imbalance between supply and demand for
Council accommodation, particularly the shortage of single persons units, that
prompted this Authority’s letter of August 1979. As the supply of council
accommodation has been further diminished over the intervening period I regret
that I am not able to justify altering the Council’s position from that
expressed in my letter of August 24 1979.
I would
remind you that Mr Cowler has been invited to discuss his position on the
general housing waiting list with my lettings officer, but at the time of
writing has not responded.
The letter of
August 24 1979, which was referred to in the November 24 1987 letter, reads as
follows:
Rehousing
of Agricultural Workers
I refer to
your letter of August 17 1979 following our telephone conversation.
Unfortunately, I must confirm, that this Council is not in a position to offer
accommodation to applicants referred by ADHAC who do not fall into a priority
need category as defined by the Housing (Homeless Persons) Act 1977. For your
information, these categories are: a family with children, battered wives, old
age, nearing retirement age associated with frailty, disablement, mental
illness, pregnancy and young people under 6 risking exploitation.
Naturally,
should there be a housing applicant on this Council’s housing waiting list
whose application has been lodged for a considerable period of time, it is
possible accommodation may be offered to them as an applicant on the housing
waiting list in the event of their cessation of employment in agriculture.
You will
appreciate that it is not our intention, or our wish, to be unhelpful, but the
supply and demand situation prevents the Council from being more generous.
The council
wrote a further letter to the then applicants on December 17 1987. It stated:
Further to
your letter of November 27 1987 and reminder of December 8 1987, I am surprised
at the contents of the former, which questions have already been put by the NFU
on behalf of their member, your client, and answered in subsequent
correspondence from this office. In case that information has not been conveyed
to you, I will repeat for your information the reasons why this authority
cannot offer expedited assistance in cases such as this.
Enclosed you
will find a copy of the Council’s letter to the NFU in 1979, stating the
authority’s policy in this case of ADHAC recommendations. I suggest you
consider that letter in conjunction with section 28(7) of the Rent
(Agriculture) Act 1976 concerning competing claims for Council accommodation
and resources at our disposal. It was the unfavourable imbalance between supply
and demand for Council accommodation, particularly the shortage of single
persons dwellings, that prompted this Authority’s letter of August 1979. As the
supply of Council accommodation has been further depleted over the intervening
period, I regret that, using our best endeavours, the Council cannot justify
altering its position from that expressed in my letter of August 24 1979.
Irrespective
of the above, I would mention that Mr Cowler has an appointment to discuss his
prospects in the normal way on the Council’s Housing Waiting List, early in the
new year.
A fresh
application, the application which led to the decision the subject of the
present proceedings, was made by the present applicants on April 5 1988. They,
too, requested an ADHAC assessment. That assessment was provided on the date
and in the terms already mentioned.
On June 9 1988
the council wrote to the applicants’ solicitors. The letter was written by Mrs
Foy on behalf of the council:
I am afraid I
must reiterate my advice given in October 1987 regarding the rehousing of Mr
Cowler. Despite the ADHAC recommendation he does not fall into a Priority
Category as defined by the Housing Act 1985 (Part III), and I am not able to
offer alternative accommodation.
I have
enclosed copies of previous correspondence which illustrate more fully the
Council’s position. I would also like to add, Mr Cowler is no longer registered
as an applicant on the Housing Waiting List.
The letter
went on to deal with the position of Mr Brooks.
Dealing with
the application, Mr Harris, at para 4 of his first affidavit, stated:
As regards Mr
Cowler I did re-assess the situation; there was no change in respect of his
personal circumstances since the original application. Neither was there any
change by way of improvement in the housing situation in the District.
Therefore I came to the same conclusion as I had in 1987 namely that using the
best endeavours available to the Council and balancing the competing interests,
we could not make accommodation available to him in priority to others.
Mr Harris’
evidence that he applied that test concludes the case, it is submitted, on
behalf of the respondents. It is submitted that though his thought-processes
were not set down in writing at the time, it would be strange if they had been.
In para 5 of the affidavit, Mr Harris added:
The Council
believes that its working practices in connection with ADHAC recommendations
fully complies with the spirit and letter of the Act.
In para 8, Mr
Harris stated:
In dealing
with cases under the 1976 Act each case is assessed individually on its merits.
We take into account everything represented by the applicants themselves, and
anything else we are aware of about the case and most particularly we take into
account the ADHAC advice. I followed this procedure in this case. I then have
to judge the merits of the case against the demand/supply situation which I
have outlined above. The situation is gradually deteriorating. At the time I
made my decision in this case I well knew that the situation was as bad as
ever. The competing demands were from the homeless, the sick, the disabled and
sometimes the extremely young. Such persons fall into a category which is
called in the 1985 Act a priority need. Not only does the Council have a statutory
duty to such persons but in commonsense terms their needs are properly in my
view regarded as urgent. Even taking into account the applicant’s needs in this
case and the ADHAC recommendations I did not consider that they outweighed the
other competing demands on the Council’s scarce resources. For those reasons my
decision was communicated to the applicant. There was no real prospect of
placing Mr Cowler in either family accommodation or retired persons
accommodation because of the pressures for that type of accommodation, and the
nature of it.
The housing
situation in the council’s area is difficult, and it is for the council and not
the court to decide priorities between applicants, it is submitted. The
decision was taken on its merits. The council’s general view and practice that
vulnerable people should have priority over section 27 cases did not preclude
individual consideration of the individual case, it is submitted. The plainness
and directness of the council’s evidence that other types of case were given
priority was a matter for congratulations and not criticism. Resources were
such that the council were unable to help Mr Cowler.
It was
accepted by Mr Stephenson that there is no evidence that any section 27 case,
where there was no priority need as defined in the Housing Act, had been
offered accommodation by the council. Mr Stephenson also accepted that the
references in Mr Harris’ second affidavit to a computer and its work did not go
beyond the earlier reference to a ‘live file’ being kept on Mr Cowler. A ‘live
file’ was defined as a file which was not a closed file. I add in parenthesis
that it is common ground that the large volume of statistical material in the
folder before me does not form part of the evidence in the case. Mr Harris does
not deal with it in his affidavits, and the first document to which I was
referred by Mr Stephenson did not, as he properly accepted, mean what he had
thought it meant.
It was
submitted on behalf of the council that no adverse inference should be drawn
from the use of the expression ‘the authority’s policy in this case of ADHAC
recommendations’ in their letter of December 17 1987. It was not a policy as
such, but a working practice and did not preclude individual consideration of
individual cases. The earlier letter to the NFU set out the factual situation
in the district. No adverse inference should be drawn, it was submitted, from
the note of the meeting of January 13 1988. Mr Cowler’s meeting was with the
council’s letting officer, and it was right that the officer should, by what Mr
Stephenson accepted and indeed asserted was a blinkered approach, have ignored
the ADHAC aspect of the case. What happened at that meeting was irrelevant, it
is submitted, to the question of whether the officer dealing with the ADHAC
aspect of the case went wrong.
For the
applicants, Mr Mathias accepts that housing authorities have a discretion as to
the priorities they adopt. They must, however, act within the statutory
framework. He submits that the council’s documents reveal a policy not to
provide accommodation on the basis of ADHAC recommendations. Further, or
alternatively, the council’s approach to section 28 amounted to treating it as
a dead letter. The persons concerned were treated as being in no better
position than those on the general housing list, whereas the intention of the
section, under which a duty is owed to the present applicants, was plainly to
put the person seeking accommodation into a special category for consideration.
The absence of
evidence that anyone had obtained accommodation as a result of the ADHAC
recommendation was itself significant, it is submitted. Genuine consideration
had to be given to the provisions of the section. The respondents had not even
discharged in express terms their duty under section 28(6A) to state whether
they were satisfied that the applicants’ case was satisfied under section 27.
In its context, the council’s use of the expression ‘using our best endeavours’
in the letter of December 17 1987 meant, in effect, ‘not using best
endeavours’.
Where there
are no contemporaneous documents showing the reasoning of the council, the
court should scrutinise carefully the reasoning set out in affidavits prepared,
albeit in good faith, long after the event. Mr Harris, in his first affidavit
at para 2, stated that on September 2 1987 the council had told the former
applicants’ agents that the council had used their best endeavours when the
expression did not appear in the letter of that date.
Mr Mathias
referred to cases where the expression ‘best endeavours’ in a statutory or
contractual context had been construed. In Sheffield District Railway v Great
Central Railway [1911] 27 TLR 451 at p 452, it was stated that the
expression did not mean ‘second best endeavours’. It meant leaving no stone
unturned. In IBM United Kingdom Ltd v Rockware Glass Ltd [1980]
FSR 335, Lane LJ (as he then was) stated that it meant taking all those reasonable
steps which a prudent and determined man acting in his own interests would
take. Buckley LJ stated that the expression meant ‘do all he reasonably can’.
In Overseas Buyers Ltd v Granadex SA [1980] 2 Lloyd’s Rep 608 at
p 613, Mustill J (as he then was) stated that it meant all that it can
reasonably be expected to do in the circumstances. There is no dispute but that
these are, with respect, helpful definitions of the expression.
I accept that
the council have a genuine concern for what were described as ‘vulnerable
applicants for accommodation’, those with priority needs as defined in the
Housing Act. Of course, I accept that the council have a broad discretion in
taking decisions and in assessing priorities upon applications for
accommodation made to them as housing authority. However great that concern and
however broad that discretion, it must be exercised in the context of and in
accordance with the statutory requirements.
Section 28 of
the 1976 Act creates specific duties when an
be taken of the advice of ADHAC which, in this case, was that accommodation was
required as a ‘matter of immediate urgency’. Under subsection (7), the council
must use ‘best endeavours’ to provide accommodation. These are words. Mindful,
no doubt, of the needs of agriculture and those concerned in it, Parliament has
laid down a procedure to be followed. Further, this is a statutory duty which
can be enforced by an action for damages for any breach.
Giving all the
weight I can to the contents of Mr Harris’ affidavit, I am unable to hold that
the council have paid any sufficient regard to their duties under section 28.
Failure to give a notification in the form required by section 28(6A) was a bad
start, but it is not crucial to this decision. I bear in mind in particular the
contents of the contemporaneous documents. The letter of June 9 1988 written by
Mrs Foy on behalf of the council, read with the earlier letter to which it
refers, strongly suggests, as a matter of policy, that a person is required to
fall within a Housing Act priority category before accommodation is provided.
Mr Cowler was
treated as being in no better position than an applicant on the general housing
waiting list. The decision was expressed as a ‘once for all decision’ without
reference to the endeavours made. That view of the council’s approach is
supported by the contents of the letter to the NFU. There is no contemporary
documentation or documentary support for the suggestion that this, or any
section 27 case, was considered on its own merits in accordance with the
provisions of section 28. There is no documentary evidence or other reference
to dealings between Mr Harris and Mrs Foy before the June letter was written.
Mr Harris’
letter of December 17 1987 refers to the authority’s policy in cases of ADHAC
recommendations. The use of the expression ‘best endeavours’ in the context in
which it appears later in the same paragraph does not appear to me to
demonstrate an intention to comply with section 28(7) in the particular case.
When Mr Cowler was granted an interview on January 13 1988, he was treated as
an applicant with ‘nil points’ and was told that there was no prospect of
rehousing.
The council’s
duty, which was a duty to the present applicants to treat Mr Cowler as an
applicant in a special category, was not recognised. Neither Mr Cowler nor the
applicants were told at the time that the officer interviewing him, as distinct
from other council officers, was not concerned with the case viewed as a whole.
On the
evidence, I regard the suggestion that the ‘record of interview’ should be
ignored for present purposes as unacceptable. I accept the difficulties faced
by this housing authority because of limited resources available. I was
referred to Circular 122/1976 on this and other points. The council can have
general policies as to how to allocate those resources. An individual applicant
under section 27 is, however, entitled to have his case considered in
accordance with the specific provisions of that section, even if housing is
very scarce.
On the
evidence, the present applicants were not, in my judgment, treated in that way.
Effect was not given to the provisions of the section or its purpose. I grant
certiorari to quash the decision. Mandamus is not appropriate. I have no doubt
that the council will reconsider the application in accordance with the
provisions of section 28. I do not regard the fact that, applying those
provisions, as they, the council should, they may again decline to offer
accommodation or take other effective action to be a reason for refusing relief
for what has happened.
The order of
certiorari was granted with costs.
