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16/08/2021

A closed mind and a failed possession claim

Thanks to Marina Sergides of Garden Court for this note of an interesting County Court possession claim, defended on public law grounds.

Tower Hamlets LBC v Ali, County Court at Clerkenwell & Shoreditch. 21 July 2021

Tower Hamlets (“TH”) brought a claim for possession against Mr Ali after his mother, a secure tenant, died. His mother was herself a successor and, accordingly, he was not entitled to succeed under section 87 of the Housing Act 1985. He applied to succeed under TH’s discretionary policy for failed successors which stated that TH would grant a new tenancy to an occupant where they had lived with the tenant for 12 months before the tenant’s death, and they occupied the property as their only or principle home.

Mr Ali provided information of his residence to TH. TH reached a decision in September 2018 that he had failed to provide sufficient information to satisfy TH that he succeeded under their policy. TH relied on letters that his deceased mother had written during her life confirming that her son did not reside with her (although not specifically related to the relevant period). Mr Ali provided further information (letters of support from neighbours and an explanation for why his mother denied his residence) and sought a reconsideration.

The claim was defended on public law grounds. The thrust of Mr Ali’s case was that there was a lack of procedural fairness and, following a request for reconsideration, TH had cherry picked the evidence that they sought to rely on, and closed its mind to additional evidence provided by Mr Ali. TH argued that it did reconsider (something it was not obliged to do) and stood by its earlier decision.

Judgement

  • The Judge was not there to decide whether Mr Ali did or did not fulfil the criteria set out in TH’s policy as this was for TH to decide. The Court had to decide whether it had applied its policy lawfully during its decision-making process.
  • Following cross examination of TH’s housing manager on the way in which TH had reached its decision, the claim for possession was dismissed.
  • Although in evidence, TH stated that they were flexible in the way in which they approached their policy and that they would consider all the evidence provided (particularly with multi-generational families), in this case this was not what they did.
  • The Judge found that in pursuing the claim for possession, TH had closed its mind to the additional information provided by Mr Ali. Their decision was impacted by the housing manager’s own personal knowledge of what he knew of Mr Ali’s residence, which was not put to him for an opportunity to respond.
  • The housing manager was not familiar with much of the evidence provided by Mr Ali and despite being given the opportunity in evidence to comment on it (and possibly rectify any procedural unfairness) he did not take the opportunity. Rather, he stood by the first decision made.

Claim dismissed.

 

 

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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