Birmingham City Council v Qasim and others [2009] EWCA Civ 1080 may come as something as a surprise (at least, it did to me) and has rather a lot to say about the importance of allocation schemes under Pt 6, Housing Act 1996.
Birmingham had an employee who took it upon himself to create false computer entries in the BCC computer system, such that it enabled persons selected by the employee to become tenants of the authority. For example, he would find properties where tenants had recently died and then amend the housing file so that Mr X was shown as the joint tenant of Mrs Y and, hence, Mr X could inherit the tenancy by succession. These actions were carried out unlawfully and outside the allocation scheme (Pt 6, Housing Act 1996). When Birmingham discovered this, they issued possession proceedings against the ocupiers contending:
(a) that Grounds 1 or 5 covered this situation; and / or
(b) that because these tenancies had not been granted in accordance with the allocation scheme, they were void ab initio and, hence, there was no tenancy.
In the county court (noted by us here), one defendant (subsequently supported by the others) applied to strike out the claims. The Judge agreed, holding:
(a) that there was no evidence to support a claim under Grounds 1 or 5 (i.e. there was no evidence of personal wrongdoing by a tenant);
(b) the council could not rely on a public law invalidity argument as it was bound by Islington LBC v Uckac [2006] EWCA Civ 340, the effect of which was that the Grounds for possession were a self-contained code and no residual basis for permission existed.
The council appealed on (b) and contended that there had been an allocation otherwise than in accordance with the scheme published under Pt 6; that this was prohibited by s.167(8), Housing Act 1996 and, accordingly, that the subsequent tenancies were void – Credit Suisse v Allerdale BC [1997] QB 306.
The appeal was dismissed. The Court of Appeal – agreeing with the defendants – held that the power to grant a tenancy is conceptually separate from the duty to allocate in accordance with a published scheme. The power to grant was unfettered and found in Part 2, Housing Act 1985. The duty to allocate was in Pt 6, Housing Act 1996 and was merely about managing the queue of applicants. Any invalidity or illegality in the allocation did not subsequently affect any tenancy which had been granted.
If Parliament had intended illegality in the allocation to go to the validity of the grant, it would have said so in clear terms. It was unlikely that Parliament had intended that an authority could – years after a ‘tenancy’ had been granted – come along and seek possession based on an earlier error in the allocation process.
The remedy for a person aggrieved by an unlawful allocation was to seek to have that allocation quashed on judicial review prior to the grant of the tenancy.
I’m not sure that this is right, and I say this for a number of reasons:
(a) it does seem to drive a horse and coaches through both the statutory priority for certain classes of person contained in Pt 6 and, just as importantly, the exclusionary provisions in s.160A, 1996 Act. So, although a local authority cannot allocate to an ineligible person, they can still grant a tenancy. That is, with respect, a surprising conclusion;
(b) it seems unlikely that another person would ever know that there had been an unlawful allocation and even less likely that they’ll be able to get a quashing order from the Admin Court before the allocation goes on to become a grant;
(c) at a policy level, doesn’t this take all the ‘bite’ out of allocation schemes? What is the sanction for an authority which ignores it? What is the sanction for an employee (or councilor who pressures an employee?) who decides to bypass the policy?
I suspect that we’ve not heard the last of this case.