Local authority – Accommodation – Allocation scheme – Officer of appellant council granting tenancy of council property in breach of statutory allocation scheme – Appellants seeking to repossess purportedly void tenancies – County court refusing to grant possession order – Appeal dismissed
Between 2005 and 2006, an officer employed in the appellants’ housing department granted secure tenancies to the respondents. In doing so, the officer knowingly and intentionally failed to apply the criteria contained in the appellants’ housing allocation scheme, adopted in accordance with Part VI of the Housing Act 1996, which included provisions for identifying those housing applicants to whom priority was to be accorded.
However, the appellants could not establish that the respondents had proffered any improper inducement in return for the grant of their respective tenancies.
The appellants sought possession of the properties on the basis that the tenancies were void. The county court concluded that each tenancy was a valid secure tenancy binding on the appellants and had not been granted in circumstances that justified the seeking of possession. It therefore struck out the appellants’ claim.
The appellants appealed, contending that where a secure tenancy was allocated under Part VI of the 1996 Act the tenancy would be void unless the accommodation had been allocated in accordance with the allocation scheme.
Held: The appeal was dismissed.
Part VI of the 1996 Act dealt with policy and management decisions and the provision of information relating to the identification of priorities as between competing prospective tenants. By contrast, the Housing Act 1985 addressed the issue of the grants of tenancies and other disposals and gave a relatively free hand to local authorities so far as disposal by way of secure tenancies was concerned.
The distinction between allocation under Part VI of the 1996 Act and disposal or grant under Part II of the 1985 Act was supported by specific features of Part VI of the 1996 Act. For example, the definition of allocation in section 159(2)(a) involved “selecting” a person to be a secure tenant of the authority, which suggested choosing an applicant to be considered for a grant, and not the grant itself. What had happened in the instant cases was a breach of the statutorily prescribed procedure for selecting an applicant to be a secure tenant, not a failure to comply with any statutory requirements relating to the grant of the tenancy. The appellants’ failure related to allocation, which was a public law obligation and was procedural in nature. Accordingly, the allocation remained effective, at least unless and until it was set aside by the court. It followed that the subsequent grant of the tenancy, although effected pursuant to the defective allocation, was not ultra vires, at least unless the terms of the 1996 Act so provided.
The notion that a tenancy that had not been granted pursuant to Part VI of the 1996 Act was void was inconsistent with the thrust of Part II of the 1985 Act. Although section 32 of the 1985 Act expressly provided that other tenancies not granted in accordance with the statutory formalities were void, section 44 ensured that, in the case of any other tenancy of a single residential unit, an authority’s failure to comply with the sole statutory precondition of obtaining ministerial consent would not lead to the tenancy being ineffective. In those circumstances, it was unlikely that parliament could have intended that a failure to comply strictly with the provisions of the 1996 Act, which did not refer to voidness, should none the less lead to any resultant tenancy being void.
Andrew Arden QC and Justin Bates (instructed by the legal department of Birmingham City Council) appeared for the appellants; Jan Luba QC and Trevor Browne (instructed by McGrath & Co, of Birmingham) appeared for the first to fourth, sixth to ninth and 11th and 12th respondents); Nicholas Nicol (instructed by Tyndallwoods, of Birmingham) appeared for the fifth and 10th respondents.
Eileen O’Grady, barrister
