Swords v Secretary of State for Communities & Local Government & Ors

Non-statutory departmental guidance is guidance, not a set of rules. A decision-maker may depart from it, subject to ordinary public law principles and any legitimate expectation it has created. The Secretary of State’s statutory discretion under sections 34 and 43 of the Housing Act 1985 is not converted into a duty to undertake an independent audit of the local authority’s consultation process. The Secretary of State may consider the evidence available, attach greater weight to an independently conducted ballot than to petitions or template letters, and need not determine every allegation individually if the main chain of reasoning is adequately stated. The statutory protection for consent in paragraph 6 of Schedule 3A does not preserve a consent obtained through an unlawful exercise of the Secretary of State’s general discretion.

The claimant, a secure tenant, sought judicial review of the Secretary of State’s consent to Tower Hamlets’ proposed transfer of the Parkside Estate to Old Ford Housing Association. The challenge concerned the exercise of the Secretary of State’s discretion under sections 34 and 43 of the Housing Act 1985.

The claimant alleged failures to consider leaseholders’ views, the fairness and adequacy of the consultation and ballot, petitions and template letters opposing the transfer, and the role of the Estates Steering Group. Permission was granted on some grounds but refused on others. The substantive question was whether the Secretary of State had exercised her statutory discretion lawfully.

1. Disposition. The application was dismissed. Permission was granted on the first three grounds, but each failed on the merits. Permission was refused on grounds four and five.
2. The Housing Transfer Manual was departmental guidance. It was not issued under a statutory power or duty and did not supplement the statutory scheme. It did not impose a legal requirement that the Secretary of State independently assess the adequacy of the local authority’s consultation or give determinative weight to leaseholders’ views.
3. The Secretary of State nevertheless had a residual discretion under sections 34(4A)(d) and 43(4A)(d) of the Housing Act 1985 to consider matters she regarded as relevant. The decision letter, read fairly and with admissible elucidatory evidence, showed that this discretion had been exercised across the relevant issues.
4. Paragraph 6 of Schedule 3A protected the validity of consent from failures to comply with that Schedule. It did not immunise an otherwise unlawful exercise of the Secretary of State’s general discretion under sections 34 and 43. The claimant’s grounds two to five were therefore not excluded at the threshold on that basis.
5. The Secretary of State was entitled to give greater weight to the independently conducted and scrutinised ballot than to petitions and template letters. Paragraph 5(1) required only that opposition appear to her; it did not require a separate investigation or an opportunity for residents to answer every evaluative assumption.
6. The Secretary of State was not required to set out every detail of the evidence or deal separately with every argument. Her reasoning on the consultation and ballot was sufficient, and her conclusion that the process was not flawed was not irrational or perverse.