Hickey v London Borough of Haringey

A tenancy granted by a local authority will not be secure only if every applicable exception in Schedule 1 to the Housing Act 1985 is satisfied. For the short-term arrangements exception, vacant possession is assessed as between the private lessor and the local authority. Occupation by the authority’s sub-tenant does not prevent that requirement being met. The lease must also contain a single provision enabling the lessor to obtain vacant possession either at the end of a specified period or when required. A provision dealing only with expiry of the term is insufficient, because the alternative concerning recovery when required would otherwise add nothing.

The Council leased a flat from a private landlord with vacant possession for use as temporary housing accommodation. During the head lease it granted the claimant a sub-tenancy under its private-sector leasing scheme. The Council treated that sub-tenancy as non-secure and later sought possession for rent arrears by a common law notice to quit.

The district judge decided that the claimant did not have a secure tenancy and ordered possession. The appeal concerned the construction of paragraph 6 of Schedule 1 to the Housing Act 1985, particularly whether the vacant-possession condition remained satisfied under later head leases and whether the head lease contained the provision required by paragraph 6(b).

1. Appeal allowed. The district judge’s possession order was discharged. The question whether paragraph 4 of Schedule 1 applied remained open and might require a further preliminary issue.
2. The landlord and tenant conditions in sections 80 and 81 of the Housing Act 1985 were agreed to be satisfied. Section 79 nevertheless made the tenancy secure subject to the exceptions in Schedule 1.
3. Paragraph 6 is cumulative: its four requirements must all be satisfied. Paragraph 6(a) concerns only the relationship between the lessor and the local-authority landlord. The premises were leased to the Council with vacant possession as between those parties, and the claimant’s actual occupation did not alter that conclusion.
4. Paragraph 6(b) requires the lease terms to include a single provision enabling the lessor to obtain vacant possession either on expiry of a specified period or when required by the lessor. The head lease provided for recovery at the end of the term but contained no provision enabling recovery when required by the lessor. The requirement was therefore not met.
5. Sir Martin Nourse regarded the alternative reading, under which separate provisions would suffice, as grammatically possible but rejected it as less consistent with the wording. It would also make the second alternative otiose, since every lease effectively provides for vacant possession at the end of its term. Lord Justice Laws and Lord Justice Tuckey agreed.
6. The observations in Tower Hamlets London Borough Council v Abdi, [1993] 1EGLR 68, supported the conclusion on paragraph 6(a) but did not assist on paragraph 6(b). The possession order was discharged, with any further order left to be determined.

• Court of Appeal (Civil Division): allowed the appeal from the Clerkenwell County Court and discharged the district judge’s possession order.
• Clerkenwell County Court: District Judge Armon-Jones ordered possession and damages for use and occupation on the basis that the claimant did not have a secure tenancy.