In Holley v Hillingdon LBC [2016] EWCA Civ 1052, Mr Holley was seeking to challenge the council’s decision to evict him and his brother from a three bedroom property that could sleep up to six persons, in which Mr Holley had lived for 32 years of his life and where he was suffering from a range of mental health problems, including anxiety, panic attacks and depression following his grandmother’s death in 2009.  There had already been a statutory succession to Mr Holley’s grandfather, so Mr Holley was, “in the rather antiquated private law jargon”, a trespasser.  The judge made a possession order on the basis that there were no seriously arguable defences under Articles 8 and 14.

The Court of Appeal, with one significant correction, agreed.  The judge had said that the length of occupation of a property could not be a factor in the decision (basing herself on Etherton LJ in Thurrock Borough Council v West [2012] EWCA Civ 1435 – our post).  This was challenged by Mr Holley and, kind of, successfully. Briggs LJ said that a period of residence wouldn’t on its own be sufficient (after all, “if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the Convention”), but it may be relevant in the aggregate; even then, “precisely because Parliament has lawfully excluded second succession to members of a deceased secure tenant’s family, length of residence is unlikely to be a weighty factor in striking the necessary proportionality balance.  A long period of residence may therefore form part of the circumstances, viewed as a whole, but is, in itself, of little consequence.”

Even so, the Court of Appeal, conducting the assessment itself, found that this was not an exceptional case, in part because, “The evidence did not show, for example, that the appellant’s mental condition was likely to be gravely exacerbated if he were to move from the home in which he had been born to some other home, even if living in familiar surroundings may be supposed to have provided some comfort for him.  Nor was the location of this particular property in any sense relevant in terms of making it easier for him to obtain requisite treatment.”  I have to say, and with considerable respect to the feelings of Counsel for Mr Holley, that is entirely understandable.

The case, however, took a rather important turn in the Court of Appeal because, although not pleaded, permission had been given at the oral hearing for Mr Holley to have a pop at Hillingdon’s allocation scheme in so far as it concerned second succession cases.  This, then, was a public law defence on the basis that the council’s allocation scheme was unlawful because it did not contain any residual discretion and, in the alternative, that it had failed to give proper consideration to Mr Holley’s case because they applied an age criterion.  Solicitors/advocates involved in thinking about Hillingdon’s scheme might prick up their ears at this point.

Hillingdon’s scheme does allow for exceptional/emergency  allocations for effective management of social housing stock as determined by the designated senior officer in conjunction with Hillingdon Housing services or a Registered Provider.  Hillingdon’s argument, based on Ahmad v Newham LBC (that they don’t need a residual discretion any more) was brushed aside on the basis that this was not rationality challenge to the scheme, but an unlawful fettering of discretion: “The Ahmad case does not therefore provide a short answer to this part of the appeal, although it does require the court to think long and hard before finding that a local housing authority’s allocation policy is unlawful.   Resolution of the question whether paragraph 8.4.3 of the 2011 allocation policy conferred a sufficiently general residual discretion depends upon a deeper analysis of the relevant authorities than was undertaken during the hearing of this appeal.”

Briggs LJ avoids the question whether this was good enough to act as a residual discretion, hedging his answer as follows:

On one view, the effective management of social housing stock is no more nor less than a summary of the whole purpose of the local authority’s social housing function, so that sub-paragraph 4 contained a sufficient general discretion.  Alternatively it might be said that this provision falls short of a full residual discretion because of its emphasis on effective management.

He argued, on the facts of this case, though that the eviction itself would not be unlawful because “even if its policies and process had complied with the relevant dictates of public law, it would inevitably have led to the same outcome for the complainant”.  Hillingdon had provided a compelling witness statement detailing the drastic shortage of housing and, particularly, the drastic shortage of three bed accommodation.  Mr Holley’s “… case for allocation of this house, however much it may generate human sympathy, simply came nowhere near that degree of exceptionality that gave him a real rather than fanciful prospect of success under a residual discretion, however widely framed, as to allocation of public housing.”

So, the question as to the lawfulness of Hillingdon’s allocation scheme is left like a dangling carrot …