Local authority – Possession order – Suitable alternative accommodation – Respondents under-occupying appellant local authority property in succession to secure tenant – Appellants offering suitable alternative accommodation – Respondents refusing to consider alternatives – County court refusing possession order – Whether court properly considering reasonableness of making possession order – Whether court taking account of availability of suitable alternative accommodation as material factor – Appeal dismissed
The first respondent and his sister (the second respondent) lived in a semi-detached, three-bedroom house owned by the appellant local authority. The first respondent had originally moved in with his wife and children and succeeded to the tenancy on the death of his mother, who had been a secure tenant under the Housing Act 1985. The appellants wanted to bring the tenancy to an end. They served a notice on the first respondent seeking possession under section 82 of the 1985 Act, relying upon ground 16 of Schedule 2, namely, that the accommodation afforded by the property was more extensive than was reasonably required by the tenant.
The county court held that although the accommodation was more extensive than was reasonably required by the first respondent and that the alternative accommodation offered by the appellants was suitable, it was not reasonable to make an order for possession given the unusual facts of the case. He considered that the sharing of the house by a brother and sister, their genuine emotional attachment to it as the family home, the depth of their feelings and their upset at the prospect of having to move all justified that conclusion.
The appellants appealed, arguing that the availability of suitable accommodation had not been taken into account as a factor relevant to the reasonableness of making a possession order. They further argued that the recorder had wrongly restricted his consideration of the relevant circumstances by treating the availability of suitable accommodation as being immaterial to the issue of reasonableness. The appellants contended that the recorder ought to have taken into account the suitability of accommodation in connection with reasonableness along with all other factors, including the fact and degree of under-occupation.
Held: The appeal was dismissed.
By its nature, the recorder’s decision was difficult to appeal. Under CRPR 52 the Court of Appeal CPR was, in general, limited to a review of the decision of the lower court. The precise nature of the question for decision in the lower court affected the Court of Appeal’s approach to criticisms of that decision. The recorder had to decide whether it was reasonable to make an order for possession. Appeals involving issues such as the reasonableness of making possession orders required the lower court to apply an imprecise legal standard to the overall evaluation of all the circumstances relevant to that issue. The appellate court had to be very cautious in differing from the judge’s evaluation of the facts in cases where a reference to, or an application of, an imprecise legal standard to the facts of the case was a matter of degree rather than principle: Biogen Inc v Medeva plc [1997] RPC 1 applied; George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd [1983] 2 AC 803; Re Grayan Building Services Ltd (in liquidation) [1995] Ch 241 and Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2000] 1 WLR 2416 considered.
If the court decided that, in all the circumstances, it was reasonable to make an order for possession, it would need to revisit available suitable accommodation as a specified circumstance. The real issue was whether the recorder regarded the the availability of suitable accommodation as being a relevant consideration when he decided that it was not reasonable to make an order for possession.
Reading the recorder’s judgment as a whole, the court was satisfied that he had had the availability of suitable accommodation in mind throughout his consideration of the appellants’ claim. He had given it proper consideration before deciding to refuse the application for a possession order. Taking into account all the factors relevant to the reasonableness of making a possession order, the recorder was entitled to conclude that the combination of factors relied upon by the appellants, including the offer of suitable accommodation, was outweighed by the length of the first respondent’s occupation, his personal and family circumstances, his age and the destabilising effect that a possession order woulde have on him. The terms of the 1985 Act expressly contemplated cases in which a tenant’s personal circumstances might outweigh the pressures on public housing and other factors.
David Carter and Toby Vanhegan (instructed by the legal department of Bracknell Forest Borough Council) appeared for the appellants; Jan Luba QC and Paul Diamond (instructed by Chambers Solicitors, of Slough) appeared for the first respondent; the second respondent did not appear and was not represented.
Eileen O’Grady, barrister
