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Weaver applies to exchange of tenancies, High Court rules

12 January 2010

The High Court has ruled that the decision of the Court of Appeal in Weaver, that most housing associations should be regarded as public bodies for human rights purposes, applies to decisions about exchange of tenancies as well as possession proceedings.

The Supreme Court surprised housing lawyers in November last year by refusing to hear an appeal against the Weaver ruling (see Solicitors Journal 153/43, 17 November 2009).

Giving judgment in McIntyre and McIntyre v Gentoo Group [2010] EWHC 5 (Admin), John Howell QC, sitting as a deputy High Court judge, said Anthony and Elaine McIntyre were tenants of a council house in Marley Potts, Sunderland.

Mr McIntyre separated from his wife in 1996 and moved into another council house, also owned by Sunderland City Council.

He accrued almost £600 in rent arrears at the property, which, despite a county court judgment, the council failed to recover. He later returned to the house in Marley Potts.

In April 2007, the McIntyres asked North Sunderland Housing Company (NSHC), a subsidiary of Gentoo Group, if they could exchange their house with other tenants.

NSHC gave them consent, but only on condition that Mr McIntyre first paid his outstanding rent arrears.

The claimants argued that it was unreasonable to withhold consent based on historic rent arrears and that this meant punishing Mrs McIntyre for a matter which was not of her own making.

Counsel for the claimants argued NSHC’s decision was amenable to judicial review, while counsel for the defendants argued that it was not, and, in any case, the claimants had alternative remedies open to them.

Judge Howell ruled that the decision in Weaver was “directly applicable” to the case and applies “not merely to decisions concerning the termination of a tenancy of social housing but also to those concerned with the mutual exchange of such tenancies”.

Judge Howell said the condition that Mr McIntyre should pay all the rent arrears was not lawfully imposed.

He said it was one which did not have “anything to do” with the relationship of landlord and tenant regarding the property in question, because the arrears related to another house.

“It was a condition which could not be lawfully imposed as a matter of private law on any consent to an assignment by them which was not to be unreasonably withheld,” he said.

“NSHC proceeded on the assumption that it could impose such a condition and it thereby erred in law and took into account a legally irrelevant consideration when deciding to impose it. Its decision to do so was accordingly unlawful in public law.”

However, on the grounds that an alternative remedy was available, he dismissed the claim for judicial review.

“In future, claims concerning any decision to refuse permission to assign or exchange, or to grant such permission only on conditions, to which section 1 of the Landlord and Tenant Act 1988 applies, should normally be brought by ordinary claim, even if they also include claims that the decision of the registered social landlord involved was unlawful as a matter of public law.”

Jonathan Askins, head of housing at Harding Swinburne Jackson & Co in Sunderland, acted for the McIntyres.

He said that claims from tenants regarding exchange and assignment decisions would now have be brought at the county courts as straightforward injunction and damages claims.

Askins said that in this case his clients would not be making a county court claim because Gentoo had agreed not to pursue them for costs relating to the judicial review.

However, because the housing association’s decision was ruled by the judge to be unlawful, Askins said he had advised his clients to put their names straight back on the register for an exchange.

“We got the decision we wanted,” he added.

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