Housing

December 21st, 2016

In R (Plant) v Lambeth LBC (2016) EWHC 3324 (Admin), Holgate J said, with respect to Section 21(1) of the Housing Act 1985 (general powers of management):-

“61.    I accept the submission of Mr Goudie QC that this provision confers a very broad discretion upon a local housing authority to manage its houses, without providing any lexicon of the matters which it is to treat as relevant.

  1. Thus, although, it is for the Court to determine whether a consideration is legally capable of being relevant, the general principle is that it is for the decision-maker, in this case LLBC, to decide (a) whether to take a relevant consideration into account and, if it does so decide, (b) how far to go in obtaining information relating to that matter. Such decisions may only be challenged on the grounds that it was irrational for the authority not to take a legally relevant consideration into account or, having done so, not to obtain particular information …

 

  1. The test is whether, in the circumstances of the case, no reasonable authority would have failed to take into account the specific consideration relied upon by the Claimant, or to obtain further information. Lord Scarman held in Findlay that this test is satisfied where, in the circumstances, a matter is so “obviously material” to a particular decision that a failure to take it into account would not be in accordance with the intention of the legislation, ‘notwithstanding the silence of the statute’ …”

Holgate J then referred, at paragraph 64, to Lord Brightman’s observations in Pulhofer, and continued:-

“65.    It is also important to keep in mind the point that Parliament has entrusted the general function of managing the housing stock within the Borough to a democratically elected body, which can be expected to well understand the potentially competing interests of the residents of one estate in comparison to others.”

With respect to Article 1 of the First Protocol to the ECHR, and the loss of a secure tenancy and the Right to Buy, Holgate J said:-

“183 … I agree with the submission of Mr Goudie QC that it is an intrinsic feature of a secure tenancy that it is granted subject to statutory termination on a number of grounds (and not merely redevelopment) which, by definition, will cause the secure tenant to lose the potentiality of choosing to rely upon a right to buy his home at some point in the future. Indeed if that should happen, the suitable accommodation which must be available to him may, or may not, carry with it a statutory right to buy.

  1. It follows that the “possession” which is held by a secure tenant does not include an absolute right to exercise a right to buy, irrespective of whether he continues to have a secure tenancy of that dwelling. Instead, the potential exercise of that statutory right to buy is conditional upon the tenant continuing to hold the secure tenancy of his property. That tenancy may be brought to an end by the operation of the 1985 Act, which includes the redevelopment ground. This limitation which is placed upon the continued existence, and exercise, of the right to buy is imposed upon the tenancy with its bundle of rights and obligations (the “possession”) by the legislation which created the legal notions of a secure tenancy and a right to buy. This analysis applies irrespective of whichever of the statutory grounds in Schedule 2 is relied upon in order to bring the tenancy to an end. The limitation placed by the 1985 Act upon the exercise of the right to buy, namely that the secure tenancy continues to subsist, is important because the argument raised … relates to persons who have not yet exercised the right to buy but may do so in the future. …”

“186.  … Here the secure tenants have not yet exercised the statutory provisions which enable them to own their properties. Those statutory provisions, which insist upon the continuing subsistence of the secure tenancy if they are to be relied upon, subjected the tenant’s rights from the outset of the secure tenancy to restrictions or qualifications which might subsequently be enforced against him. Accordingly, A1P1 is not engaged …”

 

 

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