Possession — Dispensation with notice — Local authorities serving possession notices and commencing possession proceedings under secure tenancy regime — Housing stock transferred to registered social landlords under assured tenancy regime — Whether requirement to serve notice for assured tenancy should be dispensed with — Appropriate procedure — Section 8(1)(b) of Housing Act 1988 — Appeal allowed
Two local authority landlords served possession notices on the appellant tenants, pursuant to the procedure for secure tenants under the Housing Act 1985. Prior to the hearing date, the councils transferred their housing stock to the respondent registered social landlords (RSLs)*. The tenancies thereupon ceased to be secure tenancies under the 1985 Act, and instead became assured tenancies under the Housing Act 1988.
At a preliminary hearing, the appellants argued that the court had no jurisdiction to entertain the possession proceedings because the landlords had not served a notice relating to an assured tenancy under section 8 of the 1988 Act. Under section 8(1)(b), the court could dispense with the notice requirement if it considered it just and equitable to do so.
The judge granted the dispensation and ruled that the possession proceedings could continue, on the basis that the original notice and the original proceedings related to the same, or effectively the same, breaches of the same tenancy agreements under the same terms, and that the same relief was being sought, namely relief on non-mandatory grounds. He further held that it was appropriate to grant dispensation in all cases where those conditions were fulfilled, without the need to have regard to the particular circumstances of each case, since the tenant could raise further matters at the stage when the court was considering whether to grant possession. The appellants appealed.
Held: The appeal was allowed.
1. The discretion to dispense with notice under section 8(1)(b) was wide enough to allow for dispensation in cases where, in reality, the same breach of the same tenancy was relied upon and where the relief sought was no different. Where the court would be performing the same exercise under the 1988 Act as it would have been under the 1985 Act, so that the tenant was not prejudiced in any way by a substitution of the RSL as the new claimant, there was no reason why the court should not make that substitution provided that: (i) the RSL would not seek to go outside the matters that it could have asserted if the tenancy had been a secure one; and (ii) the tenant would have the same remedies as if no substitution had occurred, for example by arguing for a set-off. However, the judge had been wrong to hold that it was unnecessary to examine the facts of individual cases at the stage when the substitution and the notice were being considered, and to proceed without any consideration of any objection to that course that the tenant might take. Section 8(1)(b) was concerned with whether the court had jurisdiction in the particular proceedings. A court could not confer jurisdiction upon itself on the basis that points relevant to the very question of jurisdiction could be dealt with at some later stage during the exercise of that jurisdiction.
2. In order to save costs, the appropriate course was to hold a single main hearing at which the court could deal with the factual issues going both to dispensation and to the question of whether it was reasonable to order possession. The RSL would have to comply with CPR 19.4 to obtain an order for substitution, and make an application supported by evidence. It would also have to apply to amend the pleadings. It would be required to show in its evidence and by its amended pleading why it had the right to continue the proceedings, upon what grounds it was seeking possession, and why it was just and equitable in all the circumstances to dispense with notice. In the instant case, the dispensation issue would be remitted to the district judge, to be heard at the same hearing as the issues of whether the grounds for possession were made out and whether it was reasonable to make a possession order.
* Editor’s note: The respondents were later substituted as the claimants in the possession proceedings.
Jan Luba QC and Martin Littler (instructed by Stephensons, of St Helens) appeared for the appellants; Ashley Underwood QC and Michael Singleton (instructed by Anthony Collins Solicitors, of Birmingham, and Howarth Goodman, of Manchester) appeared for the respondents.
Sally Dobson, barrister
