Local authority housing – Decent homes standard – Consultation – Housing transfer manual – Defendant giving consent to transfer – Claimant as secure tenant seeking judicial review – Whether manual requiring defendant to take views of leaseholders into account – Whether defendant having to consider whether consultation materials complying with manual – Application dismissed
Local authorities were required to bring their properties up to the “decent housing standard” following publication of the Housing Green Paper in 2000. The first interested party, as a local authority, concluded that in order to achieve the government’s target in relation to a large housing estate in their area, the only viable option was to initiate a large-scale voluntary transfer (LSVT) to a housing association, the second interested party.
The proposed transfer was to be carried out pursuant to section 32 of the Housing Act 1985, which required the defendant’s consent. Such consent was also required under section 43 of the 1985 Act, in so far as the proposed transfer involved the disposal of houses belonging to the first interested party that had been let on, inter alia, secure tenancies.
Following a consultation exercise, the defendant gave consent to the transfer. However, the claimant, a secure tenant of a property owned by the first interested party and included in the proposed transfer, applied for judicial review of that decision. She complained that the defendant had failed to have regard to the departmental guidance for local authorities that was contained in the Housing Transfer Manual, which set out the processes for carrying out housing stock transfers. In particular, the claimant argued that the defendant had failed to take account of the views of leaseholders or to consider whether the materials circulated by the interested parties prior to the ballot had complied with the requirements set out in the manual.
Held: The application was dismissed.
The express purpose of the manual was to provide departmental guidance for local authorities. It did not supplement the relevant statutory provisions and there was no statutory requirement for local authorities to have regard to. The court should be slow to recognise any legitimate expectation in the guidance if to do so would elevate non-statutory guidance into a statutory requirement where parliament had clearly omitted certain requirements from the statutory framework, such as that the defendant should have regard to the views of leaseholders and should independently assess the adequacy of the local authority’s consultation exercise.
The defendant was not under any statutory duty to take account of the views of leaseholders. Moreover, the manual did not make any representation or promise that the defendant’s consent would be dependent upon the support of the leaseholders. In any event, the manual had to be read in the context of the statutory framework, under which the defendant had a general or residual discretion to have regard to any other matters that she considered relevant for the purposes of determining whether to give consent. On a fair reading of the decision letter, the defendant’s reasons for her decision to give consent embraced every relevant aspect of the necessary decision-making process, including the exercise of her general discretion to refuse consent.
The fact that the manual indicated that one of the criteria for consent would be the adequacy of the consultation exercise did not mean that the defendant was under a statutory duty to carry out an independent assessment of the consultation. Although the defendant did not include in her decision letter any analysis of the consultation material, it did not mean that she was not aware of it and had not considered that aspect of the matter: MJT Securities Ltd v Secretary of State (1997) PLR 43, Eagil Trust Co Ltd v Piggott-Brown [1985] 3 All ER 119; and R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 considered.
David Wolfe (instructed by Leigh Day & Co) appeared for the claimant; Jonathan Swift and Deok-Joo Rhee (instructed by the Treasury Solicitor) appeared for the defendant; Kelvin Rutledge and Sian Davies (instructed by the London Borough of Tower Hamlets) appeared for the first interested party; Jane Oldham (instructed by Prince Evans) appeared for the second interested party.
Eileen O’Grady, barrister
