Allocation, Allocation, Allocation

Leicester CC v Shearer is a rare example of a successful public law defence to a claim for possession.

Mrs S was the wife of the late Mr Shearer, who was himself the successor tenant to the property that was the subject of the possession claim at 35 Martival, Leicester. They married in 2005 and Mrs S left in 2010 to take an assured shorthold tenancy following incidents of domestic violence. Mrs S’s children continued to have staying contact with Mr S at the property. The parties later reconciled and were staying at another property in Leicester in February 2011 when Mrs S tragically found her husband hanged on the morning of 28/2/11.

Mrs S and her 2 children set up home at 35 Martival from 28/2/11 and she asked the Council to allow her and her family to continue living there. Mrs S was told that it was not possible for her to continue residing at 35 Martival and she was invited to complete an application form for alternative rehousing. The Council’s advice that it would not be possible for her to continue living in the property was repeated but Mrs S did not provide the documentary evidence required to support her rehousing application.

There followed internal discussions amongst the Council’s officers regarding the possibility of a direct offer of 35 Martival to Mrs S (although Mrs S was told nothing about this). Paragraph 5.6 of Leicester’s allocation policy states:

Direct Offers

In limited circumstances the Council may allocate properties directly to applicants outside of the Choice Based Letting Scheme. Illustrative examples of Direct Lets are as follows….Where there are exceptional circumstances that merit priority rehousing associated in managing risks, emergencies and making best use of management stock

 

It was considered that making Mrs S a direct offer of 35 Martival would create an unhealthy precedent for future failed succession applications and the decision was taken instead to issue possession proceedings. Article 8 and public law defences were raised and the County Court recorder dismissed the Council’s claim in a written judgement on 10/1/13. The judge concluded that no proper consideration was given to the making of a direct offer of 35 Martival, no enquiries were made of e.g. Social Services to assess the impact on the children of a move and had Mrs S been advised correctly of the possibility of a direct let, she would have furnished them with the supporting documentation.

The Council appealed, arguing a) that the recorder had misdirected himself and/or acted irrationally, when the Allocations Scheme expressly required supporting proof for a valid application; b) there was no obligation on the Council to undertake enquiries; and c) there was no evidence for the finding that a direct let was not considered.

The Court of Appeal’s response to the first ground is summarised at para.59:  “the Council effectively prevented the defendant from providing the necessary proofs by the misleading advice which it gave to her” and at 62: “a public authority cannot rely upon an applicant’s non-compliance with procedural requirements, when the authority has itself caused that non-compliance.” In the Court’s view, Mrs S had a “respectable case” for an award of a direct let, the facts were exceptional and it was incumbent on the Council to deal properly and lawfully with her request. The Court also rejected a submission that the possession claim did not preclude the possibility of making Mrs S a direct offer at a later date. The decision to issue proceedings was bound up with the refusal to consider Mrs S for a direct let.

The Appeal was therefore dismissed.

Comment: This case raises a number of interesting issues. Firstly, presumably there was no cross-appeal against the recorder’s finding that there was no Article 8 defence and therefore there was no need for the CA to consider it. The facts of the case were, after all, exceptional enough for the public law defence to succeed.

Secondly, we have a rare example of the Court interfering with a management decision of the Council vis-a-vis their housing stock. We know from the various Article 8 cases (Qazi [at 54], Powell [at 35] and Thurrock v West [at 25]) that local authorities are considered to know their own communities best and are better equipped than courts to make decisions about the use of their housing stock. Although Shearer is not strictly an Article 8 case, I mention the point because para.5.6 does refer to the ‘best use of management stock’. For example, the Council would appear to have raised a valid concern about the risk of creating an unwanted precedent. Perhaps the lesson to be drawn from this case is that where there has been an obvious failure to complete a lawful Part VI assessment (or there has been some other policy which has not been properly applied), the Courts will be more inclined to intervene in possession proceedings than would be the case in a straight Article 8 scenario.

 

Posted in Housing law - All, Possession.

About SJM

SJM is partner and head of the housing and public law department at Miles and Partners LLP, based in London E1.

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