Manchester City Council v Benjamin

A possession order prevents a secure tenant from exercising the right to buy the dwelling which the order requires the tenant to leave. It does not extinguish an accrued qualifying period or prevent the tenant from exercising the right to buy another dwelling subsequently held under a secure tenancy.

On a Ground 16 possession claim, better deployment of scarce local-authority housing is relevant to reasonableness. Avoiding the sale of a dwelling under the right-to-buy scheme is not, by itself, a permissible justification. An appellate court may intervene in the trial judge’s balancing exercise where an irrelevant consideration was included or the evaluation was plainly wrong.

Manchester City Council sought possession of a six-bedroom house occupied by a secure tenant who had succeeded to her mother’s tenancy. The tenant conceded that the house was more extensive than she reasonably required. She opposed possession and counterclaimed for its conveyance under the right-to-buy provisions of the Housing Act 1985.

The Manchester County Court dismissed the possession claim and ordered conveyance. It held that a possession order would eliminate the tenant’s accrued right-to-buy qualifying period, making the offered accommodation unsuitable. It also found possession unreasonable.

The Council appealed. The issues were whether the statutory qualifying period would remain available if the tenant accepted another secure tenancy and whether the judge’s reasonableness assessment could stand.

1. Appeal allowed unanimously. The county court’s order was set aside. The Court of Appeal ordered possession and dismissed the tenant’s counterclaim.

2. Under sections 119(1) and 121(1) of the Housing Act 1985, there is a distinction between the right to buy arising and its exercise. Once the qualifying period calculated under Schedule 4 has expired, the right arises. Section 121(1) prevents its exercise in respect of the dwelling which the tenant must leave under the possession order. It does not eliminate the accrued qualifying period or prevent exercise of the right in respect of another dwelling subsequently held under a secure tenancy.

3. Sir Peter Gibson, with whom Sir Robin Auld and Dyson LJ agreed, rejected the contrary observations in Kensington and Chelsea RLBC v Hislop [2004] HLR 434 and Basildon District Council v Wahlen [2006] 1 WLR 2744. The observations in Hislop were expressly obiter. The remarks in Wahlen about a fresh five-year period were not part of that decision’s ratio because the present construction issue had not arisen or been argued.

4. The alternative accommodation was therefore suitable on the only ground advanced against suitability. Whether the complete absence of a right to buy could itself affect suitability was not argued. Sir Robin Auld identified that as a question for a future case, while Dyson LJ declined to express a view.

5. The county court’s reasonableness assessment could not stand. Better deployment of local-authority housing is a relevant consideration, although a desire merely to prevent a dwelling leaving the housing stock is impermissible. The inference that the Council acted principally to avoid a sale was plainly wrong. The proposed transfer of the housing stock to a registered social landlord was also irrelevant. The statutory duties of co-operation remained, and what was reasonable under those duties had to be assessed objectively.

6. The Court of Appeal performed the balancing exercise afresh. The tenant’s long occupation, improvements, care for her mother, intention to buy and intention to foster carried substantial weight. They were nevertheless outweighed by the need to make a rare six-bedroom property available to a larger family and by the continued availability of an accrued right to buy suitable alternative accommodation.

1. Court of Appeal (Civil Division): By [2008] EWCA Civ 189, unanimously allowed the Council’s appeal, set aside the county court’s order, ordered possession and dismissed the tenant’s counterclaim.
2. Manchester County Court: HHJ Holman dismissed the Council’s possession claim, ordered it to convey the freehold to the tenant pursuant to the right to buy, and awarded her costs.