Raymond, R (on the application of) v London Borough of Ealing

A statutory right to buy is incidental to a secure tenancy and exists only while that tenancy continues through the period in which the right is exercised. A notice to quit which determines the tenancy therefore ends the right to buy. Article 8 of the European Convention on Human Rights concerns possession or a home, rather than a statutory right to ownership. Article 1 of the First Protocol does not preserve a conditional statutory right. Legitimate expectation cannot improve the statutory position, and a council employee’s statement cannot assist without reliance. A co-tenant’s mistake about the consequences of serving notice is insufficient, without more, to create domestic-law or Convention rights.

The claimant and Ms Clarke were joint secure tenants of a flat owned by the council. The claimant applied to exercise the statutory right to buy, and the council accepted that he had the right. Before completion, Ms Clarke served a notice to quit which determined the tenancy. The council treated that event as ending the claimant’s right to buy, refused to proceed with the sale and pursued possession.

Bean J refused a renewed application for permission to seek judicial review and refused permission to appeal. The claimant sought permission to appeal to the Court of Appeal, relying on Convention rights, legitimate expectation, mistake and arguments against the existing Court of Appeal authorities. The central issue was whether the right to buy survived termination of the secure tenancy.

1. Application refused. The Court of Appeal refused permission to appeal and held that Bean J was right to dismiss the application.
2. A statutory right to buy is dependent on the existence of the secure tenancy to which it is incidental. The secure tenancy must continue throughout the period during which the right to buy is exercised. The notice to quit therefore ended the claimant’s right to buy and left him liable to possession proceedings. That conclusion followed the clear and consistent line of Court of Appeal authority referred to in Bater and Bater v London Borough of Greenwich [1999] 2 FLR 993, including London Borough of Sutton v Swann, Jennings v Epping Forest District Council and Bradford City Metropolitan Council v McMahon.
3. The reliance on Connors v United Kingdom (2004) 40 EHRR 189 did not assist. Article 8 concerns possession, expressed in domestic terms as the right to a home, whereas the complaint concerned ownership. The possible relevance of Connors to resisting possession did not determine the right-to-buy issue. The court noted the possible interrelationship with Harrow London Borough Council v Qazi [2004] 1 AC 43, but that issue was not before it.
4. If any Convention provision concerning property was engaged, it was Article 1 of the First Protocol. The property interest relied upon was statutory and conditional upon the survival of the secure tenancy. The court therefore placed no weight on that provision.
5. The legitimate-expectation arguments also failed. Any expectation based on the statutory right to buy was subject to the same condition and could not survive termination of the tenancy. A statement by a council employee could not assist because no reliance on it was alleged. Nor did the co-tenant’s mistake or failure to appreciate the consequences of the notice, without more, create rights in domestic law or under the Convention.

1. Court of Appeal (Civil Division) — On 16 November 2005, refused the claimant’s application for permission to appeal.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — On 18 March 2005, Bean J refused a renewed application for permission to seek judicial review and refused permission to appeal.