Secure tenancy – Succession by family member of deceased other than spouse – Appellant council seeking possession on ground that accommodation exceeding successor tenant’s reasonable requirements – Family members moving in – Ground 16 of Schedule 2 to Housing Act 1985 – Needs of tenant’s “family” to be taken into account – Judge holding composition of “family” to be determined at date of possession hearing not succession – Appeal dismissed
The respondent succeeded, on the death of his grandfather, to a secure tenancy of a four-bedroom house that was let by the appellant council. The appellants informed the respondent that he could not remain in the property since the accommodation exceeded his reasonable requirements. They served a notice of their intention to seek possession on ground 16 of Schedule 2 to the Housing Act 1985. That ground applied where, inter alia, the tenant had succeeded to the tenancy under section 89 of the Act as a member of the deceased’s family other than the spouse and the requirements of section 84(2) were met in that the accommodation was more extensive than the tenant reasonably required and suitable alternative accommodation would be available on the date upon which the possession order took effect. By para 1 of Part IV of Schedule 2, the court was required, when considering the alternative accommodation on offer, to decide whether it was “reasonably suitable to the needs of the tenant and his family”.
After service of the appellants’ notice, the respondent’s mother and half-sister moved into the property. The appellants made various offers of alternative accommodation, consisting of one-bedroom flats, all of which the respondent refused. In possession proceedings brought by the appellants, the district judge found that one of the one-bedroom flats constituted a suitable alternative accommodation and that it was reasonable to make an order for possession. In reaching that conclusion, he left out of account the needs of the respondent’s mother and half-sister on the ground that they had not been members of the respondent’s “family” for the purposes of para 1 at the date of the succession. That decision was reversed on an appeal by the respondent, the judge holding that the composition of a tenant’s “family” fell to be determined at the date of the possession hearing, not the date of succession.
The appellants appealed. They submitted that such a construction of ground 16 would enable tenants to frustrate a claim for possession by moving in family members, solely for that purpose, at any time between the date of succession and the hearing.
Held: The appeal was dismissed.
An order for possession on ground 16 could be made only if the court considered it reasonable. The test of reasonableness required a consideration of the relevant circumstances existing at the date of the hearing: Rhodes v Cornford [1947] 2 All ER 601 considered. Further, section 84(2)(c) was concerned with the availability of suitable alternative accommodation at a date later than the hearing (“suitable accommodation will be available”), and could not be construed as requiring consideration of the needs of the tenant and his family as it was at the earlier date of the succession. Read in context, ground 16 required the court to judge the tenant’s reasonable requirements as at the date of the hearing. The appellants’ construction of ground 16 involved reading in words that were not there, and which it was unnecessary to imply. Accordingly, the relevant date for determining the composition of the tenant’s family was the date of the hearing, not the date of succession.
That construction would not have the effect of emasculating ground 16. Although there would be cases in which members of the successor’s family moved in during the relevant period of 12 months after the death of the previous tenant, that was not unlawful and was a natural consequence of the fact that the original tenant’s bedroom had become vacant and there was space for others to move in. In the event of abuse, by family members moving in for the purpose of defeating the landlord’s claim and moving out again after the end of the 12-month period, the landlord’s ground 16 claim could still succeed. On such facts, the tenant and his family would not reasonably require the accommodation, and any alternative premises would not need to accommodate the extra family members. Any difficulties in establishing the genuineness of the family’s movements were not such as to require a different interpretation of ground 16.
The case would be remitted to the county court to determine whether, at the date upon which the possession order was to take effect, a three-bedroom flat would be available to the respondent that was reasonably suitable to the needs of him and his family.
Ranjit Bhose (instructed by Ashfords, of Exeter) appeared for the appellants; Toby Vanhegan (instructed by Flack & Co) appeared for the respondent.
Sally Dobson, barrister
