After yesterday’s note, an all too brief comment on an interesting Court of Appeal case defended by the firm of a regular reader/commenter, William Flack of Flack & Co.

Wandsworth v Randall [2007] EWCA Civ 1126

The situation – son succeeds to a parent’s secure tenancy on their death. The son is, at that point, the sole occupant of a 4 bedroom house. Over six months later the Council issue a Notice Seeking Possession on Ground 16 Schedule 2 Housing Act 1985 – under-occupancy by a successor. The Council offered a one bed flat as suitable alternative accommodation, which was refused by the tenant. Before proceedings were issued, the tenant’s half-sister and mother moved into the property. Further offers of one bed flats were refused. Proceedings were issued and

The Deputy District Judge made an order for possession. He held that (i) the accommodation afforded by the Property was more extensive than was reasonably required by Mr Randall; (ii) the flat at 49 Augustus Road was suitable alternative accommodation and (iii) it was reasonable to make an order for possession. In reaching this conclusion, he left out of account the needs of Mr Randall’s mother and half-sister, since, as he held, they were not members of his family at the date of Mr Randall’s succession to his grandfather’s tenancy.

An appeal to a Circuit Judge was successful, holding that the relevant date for assessing suitable alternative accommodation was the date of the hearing, thus including the tenant’s family, so that a one bed flat was not suitable.

The Council appealed to the Court of Appeal, arguing that for policy reasons, Parliament could only have intended the date of succession to be the relevant date. Otherwise under-occupying tenants could move family members in purely to defeat the possession.

The Court of Appeal was having none of this. Points to note:

It would effectively involve reading ‘at the date of succession’ into the statute at various points.

The general requirement of ‘reasonableness’  is at the date of hearing.

The requirement for ‘suitable alternative accommodation to be available’, via HA 1985 s.84(1) applies to grounds 9-16 generally, and for the other grounds, it is clearly a consideration at hearing whether suitable accommodation ‘will be’ available – post hearing – such that suitability is determined at the hearing. This must apply generally, as date of  succession is not an issue for Grounds 9-15. So any argument for a special case for Ground 16 can’t stand.

Any tenant’s attempt to game the system by importing relatives purely for the period of the possession claim is precisely an issue for ‘reasonableness’ and suitability of alternative accommodation, and thus for evidence at the possession hearing, not a purposive reading of statute and a set date.

Given that it is for the Court to decide on reasonableness of giving possession, the Council is not entitled to certainty ahead of issuing the claim by basing it on the occupancy at the date of succession.

The case was remitted to the County Court with a recommendation that reasonableness would be based on whether a three bed property would be available as suitable alternative accomodation.

That looks pretty much like a win on all counts, save for the remittance, which was probably inevitable.

So, any offer of suitable alternative accommodation for the purposes of a Ground 16 possession claim must be suitable for the tenant and family occupying the property at the date of the hearing, subject to the Court’s verdict on any evidence put before it of the temporary importation of relatives.

William, if you are reading this, congratulations to all involved.