Birmingham City Council v Qasim & Ors

Part VI of the Housing Act 1996 governs the public-law selection and prioritisation of applicants for social housing. It does not regulate the subsequent grant of a tenancy. A breach of an authority’s allocation scheme is therefore a procedural public-law breach and does not, without more, make a tenancy granted by an authorised officer void or ineffective. Section 167(8) requires the authority to follow its scheme, but does not prescribe invalidity as the consequence of departure. The allocation may be challenged by judicial review. The position may differ where the allocation is a legal nullity, the tenant was dishonestly involved, or the tenancy was granted by a person lacking authority.

Birmingham City Council appealed from the decision of Mr Matthew Brunning, sitting as a Deputy Circuit Judge in the Birmingham County Court, given on 8 October 2008. The judge had struck out the Council’s possession claim and held that seven tenancies remained valid secure tenancies.

The tenancies had been granted by an authorised Council housing officer who intentionally bypassed the Council’s allocation scheme. The respondents were not implicated in the wrongdoing and remained in possession of their homes. The Council argued that the tenancies were void because the respondents had not been selected in accordance with Part VI of the Housing Act 1996, particularly section 167(8). The central issue was whether non-compliance with the allocation scheme invalidated the later grant of the tenancies.

1. Appeal dismissed. The Council’s two alternative propositions were rejected.
2. Part VI of the Housing Act 1996 concerns the selection and prioritisation of applicants. It does not include the actual grant of a tenancy. The grant or disposal of housing accommodation is principally governed by Part II of the Housing Act 1985. Allocation is preliminary to, and distinct from, letting. Section 159(2)(a) refers to selecting a person to be a secure tenant, while sections 159(2)(b) and (c) demonstrate that nomination cannot itself be the grant of a tenancy ([15]-[24]).
3. Section 167(8) requires a housing authority to allocate accommodation in accordance with its allocation scheme, but does not state that an allocation made otherwise is void. The obligation is procedural and public-law in character. An allocation made by an officer authorised to perform the function remains effective unless and until set aside or revoked. The subsequent grant is not thereby ultra vires or invalid ([25]-[31], [37]-[39]).
4. The statutory scheme supports that conclusion. Section 44 of the Housing Act 1985 expressly identifies circumstances in which a disposal is void, whereas section 167(8) contains no equivalent language. Ground 5 in Schedule 2 also indicates that a secure tenancy obtained by a tenant’s false statement remains a tenancy subject to a reasonableness condition for possession. It would be anomalous for an innocent tenant affected by an allocation error to have no tenancy at all ([32]-[35]).
5. The conclusion is reinforced by practical considerations. A strict voidness rule could unsettle long-standing homes for innocent tenants because of minor or honest procedural failures, including defects in the scheme itself ([34]-[36]). Section 167(8) retains practical effect through judicial review, including a possible order setting aside an unlawful allocation and remedies securing future compliance ([39]).
6. The court left open cases involving dishonest participation by the tenant or a purported grant by a person lacking authority. Those circumstances might require different analysis ([42]-[43]).

• Court of Appeal (Civil Division): dismissed Birmingham City Council’s appeal from the Birmingham County Court decision given on 8 October 2008.
• Birmingham County Court: Mr Matthew Brunning, sitting as a Deputy Circuit Judge, held that the seven tenancies were valid secure tenancies and struck out the Council’s possession claim.