Landlord and tenant – Possession – Housing Act 1985 – Claim by respondent council for possession of under-occupied property – Possession order made conditional on alternative accommodation with certain characteristics being offered to appellant tenant – Section 84(2) and Part IV of 1985 Act – Whether reasonable to order possession – Whether jurisdiction to make conditional possession order in such terms – Whether availability of suitable alternative accommodation required to be judged by reference to a particular property – Appeal dismissed
The appellant had lived for her entire life in the same detached, three-bedroom house. First her father and then her mother had held the property on a tenancy from the respondent council; the appellant became the secure tenant of the property, by succession under sections 87 and 89 of the Housing Act 1985, on the death of her mother, aged 90, in 2010. The mother’s health had deteriorated through the last 20 years of her life and the appellant had cared for her during that time; by the end, the appellant had provided the necessary care both day and night as sole carer.
In January 2011, the respondents formed the view that the property was under-occupied and that it was not an efficient use of their resources to allow the appellant to remain there on her own. They assisted the appellant to complete a registration form for the allocation of a new property; she consequently became entitled, as a single person aged 58, to “bid” for a one-bedroom property. However, the appellant refused to bid for any alternative properties that were offered for her consideration since she did not wish to leave her existing property.
The respondents sought possession of the property on ground 16 in Schedule 2 to the 1985 Act, namely that the accommodation was more extensive than the appellant reasonably required. The possession claim was allowed by a recorder, who was satisfied both that it was reasonable to order possession and that suitable accommodation would be available for the appellant when the order took effect, as required by section 84(2)(c) of the 1985 Act. The terms of the order required the appellant to give up possession within 28 days of receiving a formal binding offer of alternative accommodation having particular characteristics.
The appellant appealed. She contended that the recorder had erred in: (i) finding that it was reasonable to order possession; and (ii) making the possession order in the terms she had, with the result that possession was ordered without the recorder being satisfied either that particular alternative accommodation was reasonably suitable for the appellant’s needs or that it would be available, contrary to section 84(2) and Part IV of the 1985 Act.
Held: The appeal was dismissed.
(1) In determining whether it was reasonable to order possession, the judge had to take into account all relevant circumstances as they existed at the date of the hearing in a broad, common sense way and give such weight to the various factors as he thought fit. A genuine and practical desire to improve the deployment of the housing stock of a local authority was a relevant reason for seeking possession of an under-occupied property, although it was simply one of the matters to be taken into account along with all the other relevant factors in the case, so that matters such as the tenant’s personal circumstances, the period during which the tenant had occupied the premises and the support that the tenant had given to the previous tenant might outweigh the pressures on social housing. The assessment of reasonableness therefore involved a multi-factorial evaluation, with which an appeal court would be reluctant to interfere unless the lower court had erred in principle or its decision is obviously wrong: Bracknell Forest Borough Council v Green [2009] EWCA Civ 238; [2009] HLR 38; [2009] PLSCS 102 applied. The recorder had directed herself correctly as to the relevant principles and had taken full account of all relevant factors. She had had careful regard to the appellant’s attachment to the property where she had always lived, to her care of her mother in the property over many years and to the distress that moving would cause to her; however, the recorder had also properly considered the position of the respondents and the pressures on their housing stock. She had not made any error of principle or reached a conclusion that was plainly wrong.
(2) Where possession was sought on ground 16, then, in accordance with section 84(2)(c) and Part IV of the 1985 Act, the court could not make an order for possession, whether conditional or otherwise, unless satisfied that such accommodation would be available for the tenant at the time when the order took effect. There was no requirement either that an offer of accommodation be made before the date of the hearing of the application for a possession or that the accommodation be available at the date of that hearing; section 84(2) expressly contemplated that it might not be. Instead, the court instead had to be satisfied that suitable accommodation would be available when the order took effect. Whether those requirements were satisfied fell to be determined on the evidence before the court at the hearing at which the possession order was made. The court did not have to be satisfied that the requirements were fulfilled by reference to a particular property: Wandsworth London Borough Council v Randall [2007] EWCA Civ 1126; [2008] 1 WLR 359; [2007] 46 EG 176 (CS) applied. If, in the particular circumstances of the case and having regard to the matters set out in para 2 of Part IV, the court was satisfied that accommodation with particular characteristics would be reasonably suitable to meet the needs of the tenant and his family and that such accommodation would become available, then it had jurisdiction to make a possession order on terms that it would not take effect until such accommodation had in fact become available.
There would be cases where the local authority were reluctant to hold one or more specific properties vacant pending the hearing of a claim for possession, but where they could be confident that other suitable properties would become available within a reasonable time. The jurisdiction to make a conditional order in such cases equipped the court with the flexibility to safeguard the interests of the tenant and permit the authority to manage their social housing effectively. However, it would not be appropriate to make a conditional order in all such cases. The court should consider with great care whether such an order was necessary and appropriate in the particular circumstances of the case before it, or whether justice would better be served by adjourning the final determination of the application until a particular property had been identified. If the court was minded to make a conditional order, the order should include specific liberty to apply. It was important that the court retained the power to scrutinise the suitability of any particular property and to vary or even discharge its order. The order should also normally include a time limit within which the local authority had to make the suitable accommodation available, along with a provision that the order would lapse if they failed to do so; that would prevent the tenant from being subjected to an unreasonable period of uncertainty. Although the recorder’s order in the instant case did not include such a temporal limitation, the defendant had been ably represented by solicitors and counsel and would not be disadvantaged by its omission. Consequently, the recorder had jurisdiction to make a conditional order in the form that she did.
Per curiam: In assessing the reasonableness of making a possession order, it was not appropriate or helpful to seek to seek to draw comparisons with the conclusions reached on the facts in other cases. Such a course was likely to lead to a needless citation of authority and a corresponding and unnecessary increase in the length and costs of the hearing, since the competing considerations, taken as a whole, were bound to vary from case to case. The issue of reasonableness had to be decided in each case in the light of its own facts.
Liz Davies (instructed by Turpin & Miller LLP, of Reading) appeared for the appellant; Andrew Arden QC and Toby Vanhegan (instructed by the legal department of Reading Borough Council) appeared for the respondents.
Sally Dobson, barrister
Andrew Arden QC and Toby Vanhegan (instructed by Reading Borough Council) for the authority.
Liz Davies (instructed by Turpin & Miller LLP, Reading) for the defendant.
