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Court ‘assumed for itself’ power to allocate social housing

A county court “assumed for itself” the power parliament confers on councils to allocate social housing, Lord Justice Etherton has said.

13 November 2012

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“This has been done without any knowledge on the court’s part as to who are those other people who have an equal, or possibly better, claim to be housed and for whom the property would be as suitable or possibly more suitable than the respondent and his family,” Etherton LJ said.

“On the basis that it would be wrong for the council to permit the respondent to remain in the property without payment of rent and other conditions, the effect of the order is to compel the council to grant the respondent a new tenancy of the property to which he has no legal right.”

The court heard that Aaron West’s grandparents were tenants of a three-bedroom council house in Tilbury, Essex. Aaron moved in, and was later joined by his baby son and partner.

The grandfather died in 2008, and the tenancy automatically vested in his wife under the Housing Act 1985.

When she died in 2010, section 37 of the Act prevented any further right of succession in favour of her grandson. The council served a notice to quit on her estate the following year, and later issued a claim for possession on the grounds that Aaron had never been a tenant or subtenant and had no right to statutory possession.

Counsel for his defence opposed the claim on the grounds that, under article 8, the court was required to consider whether a possession order “would be necessary in a democratic society and to consider the proportionality of making such an order”.

Delivering judgment in Thurrock Borough Council v West [2012] EWCA Civ 1435, Etherton LJ said that the article 8 defence in this case “did not even reach the threshold of being reasonably arguable” and should have been struck out.

He said that West’s counsel had argued that that there was a “confluence of the unexceptional, the cumulative effect of which is exceptional”.

Etherton LJ went on: “There is, however, nothing exceptional in this context about the housing needs of a couple who have limited financial means and are the parents of a young child. Indeed, such a family unit is entirely typical of those with a need for social housing.

“The fact that they have occupied the property for some time is in itself irrelevant since parliament has limited the number of successions to a secure tenancy however long a person’s association with, and emotional ties to, a property, and that legislative policy does not infringe article 8.”

Lord Justice Etherton concluded that the decision of District Judges Hodges at Basildon County Court was “in conflict with the lawful legislative policy limiting succession rights to secure tenancies”.

He added: “It deprives the council of its public right to make management decisions about the property as part of its housing stock.”

Etherton LJ allowed the council’s appeal. Dame Janet Smith and Lady Justice Hallett agreed.