McCann v Birmingham City Council

A local authority may use a tenant’s valid notice to quit to end a secure joint tenancy, even where legislation provides a possession procedure dealing specifically with domestic violence. The existence of that statutory route does not make other lawful methods unlawful.

Where a relationship has broken down and a tenant seeks rehousing, a council policy requiring relinquishment of the existing tenancy may be applied by obtaining a notice to quit. The notice remains effective even if the departing tenant does not understand its consequences for the remaining tenant. Article 8 does not ordinarily defeat the landlord’s contractual or proprietary right to possession. A decision not to offer alternative accommodation is unlawful only if it falls outside the range of decisions reasonably open to the authority.

Mr McCann sought judicial review of Birmingham City Council’s decisions to obtain a notice to quit from his wife, a former joint tenant, and subsequently to issue possession proceedings without offering him alternative accommodation.

Mrs McCann had left the property with the children after allegations of domestic violence, had been rehoused, and had returned the keys. The Council later obtained her notice to quit, treated Mr McCann as a lodger, and applied its domestic violence and allocation policies. Earlier county court possession proceedings had been dismissed on Article 8 grounds, but the Court of Appeal allowed the Council’s appeal in [2003] EWCA Civ 1783. The central issues were whether the Council had unlawfully circumvented the Housing Act 1985, acted outside its own policy, or failed to consider Convention rights.

1. The application was dismissed. The Council was entitled to possession, and the challenged decisions were lawful.
2. The Housing Act 1985 provisions governing possession, including the domestic-violence ground in Schedule 2, did not provide the exclusive means of ending a tenancy. A valid notice to quit by one joint tenant ended the joint tenancy, so the statutory possession procedure did not apply. The existence of a statutory route did not render another lawful route unlawful.
3. The Council’s policies permitted it to require the departing tenant to sign a relinquishing form after a relationship breakdown. In the circumstances, obtaining Mrs McCann’s notice to quit formalised her prior decision to leave, return the keys and end her responsibility for the property. The fact that she did not understand the effect on Mr McCann did not invalidate the notice or create a public-law challenge.
4. The Court of Appeal’s reasoning in London Borough of Newham v Kibata and Bradney v Birmingham City Council supported the conclusion that the Council was not required to await a judicial determination of the domestic-violence allegations or warn the remaining occupier before relying on an effective notice. The earlier Court of Appeal decision in the present litigation had effectively determined the relevant issues.
5. Article 8 could not defeat the Council’s contractual or proprietary right to possession. The children’s staying contact with Mr McCann did not alter that conclusion. Nor was the refusal to offer alternative accommodation outside the range of decisions properly open to the Council, given the domestic-violence policy and the non-molestation and ouster orders.
6. The judge expressed the view that the Council’s policy should be made explicit, including the effect of rehousing and signing a notice to quit, but that observation did not affect the legality of the decisions.

• Court of Appeal: The Council’s appeal from the county court possession decision was allowed in the conjoined possession appeal, [2003] EWCA Civ 1783. The Court held that the notice to quit terminated the secure tenancy and that Article 8 was unavailable as a defence to possession.
• High Court (Administrative Court): The judicial review claim was dismissed.