Kilby v Basildon District Council

Section 102(1) of the Housing Act 1985 provides an exhaustive code for varying the terms of a secure tenancy. A contractual term cannot impose a different machinery requiring approval by a tenants’ representative body, including for variation of the contractual term itself. Such a term is ineffective and unlawfully fetters the statutory power of variation. The court must construe the statutory powers and the contractual provision together, identifying whether the contract truly usurps or frustrates the statutory scheme. A tenant cannot establish a legitimate expectation that a public authority will follow an unlawful contractual procedure before exercising its statutory powers.

The claimant was a secure tenant of the defendant local authority. His tenancy agreement required proposed changes to its terms to be approved by a specified majority of tenants’ representatives. The Council resolved to adopt a new secure tenancy agreement that would delete this clause and gave preliminary notice of intended variations.

The claim for judicial review concerned whether the contractual machinery was compatible with sections 102 and 103 of the Housing Act 1985, or was void as an unlawful fetter or delegation of the Council’s statutory powers. The claimant also argued that, if the clause was invalid, he had a legitimate expectation that the Council would nevertheless follow it.

1. Claim dismissed. The contractual variation clause was ineffective.
2. Section 102(1) of the Housing Act 1985 states that the terms of a secure tenancy may be varied in the specified ways “and not otherwise”. The provision therefore excludes a contractual machinery requiring every variation to obtain approval from tenants’ representatives. That conclusion applies equally to a proposed variation of the clause itself.
3. The court considered whether the contractual and statutory provisions could be reconciled, following the approach discussed in R v Brent LBC, ex p Blatt (1991) 24 HLR 319. That case concerned contractual restrictions on particular tenancy terms. The present clause established a new general machinery for varying any term and was materially different.
4. The principle in R v Hammersmith & Fulham LBC, ex p Beddowes [1987] 1 QB 1050 required the court to identify the statutory purposes and decide whether the contractual provision truly usurped the statutory power. Here, Parliament had directed that secure tenancies could be varied only through the statutory routes. The clause consequently frustrated that direction and also amounted to an unlawful fetter on the Council’s statutory powers.
5. The alternative legitimate-expectation argument failed. Where the clause was void from the outset, the claimant could not properly expect the Council to undertake an unlawful procedure before deciding whether to use its statutory powers.

Not stated in the judgment.