Delson v London Borough Of Lambeth

In framing anti-abuse provisions affecting secure tenancies, Parliament enjoys a wide measure of discretion. A provision terminating secure-tenancy status when the tenant parts with possession of, or sublets, the whole dwelling may fall within the range of measures reasonably available to Parliament. The court should not read into the provision a general discretion to decide whether termination would be reasonable in the particular circumstances where the statutory language contains no such qualification. The provision was therefore not incompatible with Articles 8 or 1 of the First Protocol to the Convention.

Nadine Delson, a secure tenant, faced possession proceedings brought by the London Borough of Lambeth after a notice to quit was served on the basis that she had sublet the whole premises. The county court adjourned the proceedings to enable her to seek permission for judicial review.

Jackson J refused permission on the papers. Maurice Kay J refused a renewed application on 5 September 2002. The proposed judicial review challenged section 93(2) of the Housing Act 1985 as incompatible with Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol, or alternatively sought a compatible reading by adding words to the subsection. The central issue was whether the statutory termination rule was wider than necessary to prevent abuse.

1. Application refused. The Court of Appeal, comprising Lord Justice Kay and Lord Justice Peter Gibson, refused permission to appeal from Maurice Kay J’s refusal of renewed permission to apply for judicial review.
2. Section 93(2) of the Housing Act 1985 provides that, where a secure tenant parts with possession of the dwelling house or sublets the whole of it, the tenancy ceases to be secure and cannot subsequently become secure.
3. The provision was properly regarded as an anti-abuse provision. In deciding how such abuse should be addressed, Parliament must be allowed a wide measure of discretion. The court could not conclude that the provision, read according to its statutory terms, fell outside the range of measures available to Parliament.
4. A rule based on whether the tenant had behaved reasonably would involve difficult inquiries into the tenant’s intention when the premises were sublet and difficult questions of proof. Parliament was entitled to adopt the clearer consequence of terminating the statutory rights where the whole premises had been sublet.
5. The provision did not affect a tenant who retained the premises as his or her principal home. It was therefore neither appropriate to read into section 93(2) a judicial discretion to preserve the tenancy in reasonable cases nor correct to treat the provision as incompatible with the Convention.

• Court of Appeal (Civil Division): On 19 November 2002, refused the application for permission to appeal.
• Queen’s Bench Division: Maurice Kay J refused a renewed application for permission to apply for judicial review on 5 September 2002.
• Queen’s Bench Division: Jackson J had refused the original application for permission on the papers.