Gangera, R (On the Application Of) v The London Borough of Hounslow

A person who cannot succeed to a secure tenancy cannot ordinarily resist possession proceedings by asking the County Court to reconsider the proportionality or rationality of the local authority’s decision to seek possession. Where Parliament has created a housing scheme which is compatible with Article 8, the statutory scheme supplies the necessary justification at the macro level. Any challenge to the authority’s decision is ordinarily a public law challenge to be brought promptly by judicial review.

A local authority need not assess possible future accommodation duties under section 21 of the National Assistance Act 1948 before seeking possession from a trespasser. Assessment depends on the person’s actual or imminent circumstances, not hypothetical future events.

The claimant, an immigrant subject to immigration control, had lived with and cared for his parents in their secure council tenancy. His mother had succeeded to the tenancy after his father’s death. Because she was herself a successor, the claimant was not qualified to succeed under the succession provisions of the Housing Act 1985.

The Council served notice to quit and commenced possession proceedings. The claimant argued that the succession scheme infringed Article 14 read with Article 8 of the Convention. He also argued that seeking possession was disproportionate and irrational because his needs had not been reassessed under section 21 of the National Assistance Act 1948. The central procedural issue was whether those public law and Convention arguments could be raised as a defence in the County Court possession proceedings.

1. Succession and Article 14. The claimant’s inability to succeed resulted from the previous succession to the tenancy, not from any personal status or characteristic. The proposed comparators were not in an analogous situation. The succession provisions therefore did not discriminate contrary to Article 14 read with Article 8.
2. Section 21 accommodation. The Council had assessed the claimant under section 47 of the National Health Service and Community Care Act 1990. The suggestion that a further section 21 assessment might become relevant after a change in immigration status was premature. The authority was entitled to proceed on the basis that the claimant was not homeless and was not required to assess hypothetical future circumstances before seeking possession.
3. Macro-level compatibility. The statutory scheme for secure tenancies and possession was compatible with Article 8 when viewed as a whole. The court’s intervention under section 3 of the Protection from Eviction Act 1977 did not require the County Court to conduct an individual proportionality review in every possession case. The court had to apply the statutory scheme, including the limited postponement power under section 89 of the Housing Act 1980.
4. Proper forum. The claimant’s challenge was a public law challenge to the Council’s decision to seek possession. Following Wandsworth London Borough Council v Michalak and Royal Borough of Kensington and Chelsea v O’Sullivan, it should ordinarily be brought by judicial review, not as a defence to possession proceedings. The exceptional possibility identified in Sheffield City Council v Smart did not assist this claimant, whose circumstances were not rare or exceptional.
5. Disposition. The court granted permission and extended time because the issues required full argument, but the substantive judicial review claim was refused. The claimant’s arguments failed.

First-instance judicial review proceedings. The judgment records that possession proceedings originally brought in the Brentford County Court were transferred by consent to the Administrative Court. Permission was granted and time was extended, but the substantive application was refused.