When is a Secure Tenancy Agreement not a Secure Tenancy Agreement?
News has reached us of an interesting case in Bow County Court involving the right to succeed to a secure tenancy and the operation of s.103 of the Housing Act 1985: London Borough of Waltham Forest v Mahmood.
S.103 may be an unfamiliar provision to some so this is what it says:
(1) the terms of a secure tenancy which is a periodic tenancy may be varied by the landlord by a notice of variation served on the tenant
(2) before serving a notice of variation on the tenant the landlord shall serve on him a preliminary notice-
(a) informing the tenant of the landlord’s intention to serve a notice of variation,
(b) specifying the proposed variation and its effect, and
(c) inviting the tenant to comment on the proposed variation within such time, specified in the notice, as the landlord considers reasonable;
and the landlord shall consider any comments made by the tenant within the specified time
(3) Subsection (2) does not apply to a variation of the rent, or of payments in respect of service or facilities provided by the landlord or of payments in respect of rates
(4) The notice of variation shall specify—
(a) the variation effected by it, and
(b) the date on which it takes effect;
and the period between the date on which it is served and the date on which it takes effect must be at least four weeks or the rental period, whichever is the longer.
(5) The notice of variation, when served, shall be accompanied by such information as the landlord considers necessary to inform the tenant of the nature and effect of the variation.
Mr M was the son of the late Mrs M, who held a secure tenancy of a 3 bedroom flat with LBWF from 1982 until her death in September 2011. Towards the end of her life, Mrs M became increasingly infirm and dependent on a Social Services care package and family support.
At some point in the months prior to her death, Mr M moved in with his family to assist with this support and upon her death, he applied to succeed to the tenancy. The local authority refused his application on the grounds that he could not show 12 months continuous residence prior to his mother’s death. Notices to quit were served on the property and on the public trustee and possession proceedings began.
This is where it becomes interesting because Mrs M’s 1982 agreement allowed for a 6 month qualifying period for family members. Over the course of 2008 and 2009, LBWF planned to alter its terms and conditions (including bringing the succession provision into line with s.87 of the 1985 Act) and this process culminated in fresh T&Cs, which were intended to take effect from May 2009.
Mr M argued that the 1982 agreement was the effective agreement and that he was entitled to succeed to the tenancy by virtue of 6 months continuous residence. This required LBWF to prove that the preliminary notice and notice of variation were duly served on Mrs M. Over the course of the proceedings, it became apparent that LBWF were encountering some difficulty in locating those notices. Nothing could be found in connection with Mrs M and there was no trace of the specimen notice of variation. LBWF gave evidence that, following completion of the exercise in 2009, the documents had been placed in storage and an office move in 2013 was delaying discovery of the notices.
The case was effectively put on ice for approximately 12 months until it was heard by DJ Dixon at the beginning of September this year. The council did not produce any further evidence and they argued that the court could conclude on the balance of probabilities that a diligent exercise had been completed in a diligent manner and that the notices had been served on Mrs M (applying the principles in Entrust Pension Ltd v Prospect Hospice Ltd  EWHC 3640 at paras 39-40).
DJ Dixon disagreed. It was a matter of concern that the notices of variation had disappeared en masse and the only inference the court could reasonably draw from the fruitless search of the files was that the notices had never been served on Mrs M. The 1982 agreement therefore applied and, having found Mr M to have resided at the property from December 2010, the possession claim was dismissed.
This is clearly a case with significant ramifications not only for LBWF’s secure tenancies pre-dating May 2009 (of which there were roughly 13,000) but also for those other local authorities who may need to carry out due diligence into their variation procedures. It has perhaps been taken for granted during litigation that secure tenancies have been properly varied, particularly when following the correct procedure is not as critical to the outcome of a case as it was in this case. However, unless variation documents have been properly catalogued and recorded, councils will have to think twice before pleading that their tenants’ T&Cs have been successfully varied.