Hammia, R (on the application of) v London Borough of Wandsworth

Once a local housing authority is satisfied that an applicant is eligible for assistance, has priority need and is not intentionally homeless, the duty under Part 7 of the Housing Act 1996 arises. The authority cannot impose an additional requirement before accepting that duty, such as requiring an existing secure joint tenancy to be relinquished. A policy requiring an existing tenancy to be given up may be lawful when applied to a transfer or when the authority is discharging an accepted homelessness duty by providing alternative accommodation. The timing and sequence are decisive. A declaration that the policy and decision were unlawful does not itself determine the private-law validity of a notice to quit, which remains for the County Court.

The claimant challenged Wandsworth’s policy of requiring a homeless applicant who held an existing secure joint tenancy to relinquish that tenancy before the authority accepted its duty under Part 7 of the Housing Act 1996. The policy was applied after the claimant’s wife left the family home with their children, alleging domestic violence, and was accepted as homeless, in priority need and unintentionally homeless. She then signed a notice to quit, terminating the joint tenancy. Possession proceedings followed in the County Court, which adjourned the relevant appeal issues pending this judicial review. The central questions were whether the policy and decision letter were unlawful, and whether the notice to quit was invalid and unenforceable.

1. The claim succeeded in relation to the policy and the decision letter, but the court refused to declare the notice to quit invalid or unenforceable. The defendant was ordered to pay 70 per cent of the claimant’s costs.

2. Under Part 7 of the Housing Act 1996, accommodation is not treated as available if it would not be reasonable for the applicant to continue to occupy it. It is not reasonable to continue occupying accommodation where probable domestic violence would result. On the facts accepted by the authority, the claimant’s wife was homeless within the statutory definition.

3. Where the authority is satisfied that the applicant is eligible, in priority need and not intentionally homeless, the duty under section 193 arises. The authority cannot add a further hurdle or proviso before accepting that duty. Requiring the applicant to relinquish an existing tenancy was therefore unlawful when imposed at that stage.

4. A policy requiring an existing Council tenancy to be relinquished before accepting a transfer or before providing Council accommodation in discharge of an already accepted duty under section 193 may be lawful. The same requirement becomes unlawful when used to prevent the statutory duty arising in the first place.

5. The declaration concerned the policy evidenced by, and the decision evidenced by, the letter of 30 September 2003. It did not quash the decision or determine the private-law issues concerning the notice to quit, including alleged oppression, lack of understanding, interpretation and advice. Those issues were matters for the County Court.

6. The court declined submissions concerning a possible method of removing one joint tenant without terminating the whole joint tenancy. The suggested reform was not presently the law.

The judgment describes related possession proceedings in Wandsworth County Court. The County Court made a possession order and later suspended execution of the warrant pending the claimant’s appeal. It adjourned determination of the appeal while the policy issue was considered by the Administrative Court. This judgment granted declaratory relief concerning the policy and decision but left the notice to quit for determination in the County Court.