Bracknell Forest Borough Council v Green & Anor

When deciding whether it is reasonable to order possession of an under-occupied secure tenancy under Ground 16 of Schedule 2 to the Housing Act 1985, the court must evaluate all relevant circumstances. The availability of suitable alternative accommodation is relevant, but it is not necessarily decisive. If possession is otherwise reasonable, the court must then satisfy itself specifically that suitable accommodation will be available.

An appellate court should be slow to disturb a trial judge’s application of an imprecise legal standard to the facts. Intervention is justified where the judge made an error of principle or reached an obviously wrong conclusion. A tenant’s age, exceptionally long occupation and likely permanent destabilisation may outweigh housing shortages, waiting-list pressures and the efficient use of public housing stock.

The council sought possession of a three-bedroom house under Ground 16 of Schedule 2 to the Housing Act 1985. The tenant had succeeded to the tenancy and had lived in the house throughout his life. His sister also lived there.

The recorder found that the house was more extensive than reasonably required and that the council had offered suitable alternative accommodation. He nevertheless dismissed the possession claim because an enforced move was likely permanently to destabilise the tenant and his sister.

The council appealed, contending that the recorder gave insufficient weight to housing demand and wrongly excluded suitable accommodation from the assessment of reasonableness. The central issues were whether the recorder had misdirected himself and whether his evaluative conclusion could properly be disturbed on appeal.

1. The appeal was dismissed unanimously. The recorder had considered all relevant circumstances and was entitled to conclude that making a possession order would be unreasonable.

2. The application of the statutory requirement of reasonableness involved an overall evaluation of the facts against an imprecise legal standard. Under Part 52 of the Civil Procedure Rules 1998, the Court of Appeal’s function was generally one of review. It should be slow to interfere with such an evaluation unless the lower court acted on an error of principle or reached an obviously wrong conclusion. The appellate process did not provide an opportunity merely to repeat a fact-based argument which the trial judge was better placed to assess.

3. Suitable alternative accommodation was relevant to reasonableness under section 84(2)(c) of the Housing Act 1985, even though it was not one of the mandatory reasonableness considerations specified in Ground 16. The statutory language did not require two wholly separate decisions in a prescribed sequence. If the court concluded that possession was reasonable, it then had to revisit suitable accommodation as an independent statutory condition.

4. Read as a whole, the recorder’s judgment did not treat suitable accommodation as irrelevant. He considered the offered properties, found one suitable, noted the occupants’ refusal to inspect them and included that refusal in his balancing exercise. His statement that suitability became immaterial once possession had been found unreasonable did not disclose a material misdirection.

5. The availability of suitable accommodation was not decisive. Ground 16 expressly contemplated that personal considerations could outweigh the efficient allocation of scarce public housing. The recorder was entitled to place substantial weight on the tenant’s age, lifelong occupation, personal and family circumstances and the strong finding that displacement would probably cause permanent destabilisation. Those unusual circumstances could outweigh under-occupation, the offer of suitable accommodation, diminished housing stock and the needs of families on the waiting list.

• Court of Appeal (Civil Division): The council’s appeal was dismissed. The recorder had committed no material legal error and his assessment of reasonableness was not obviously wrong.
• Reading County Court: Mr Recorder Flather OBE QC found that the dwelling was under-occupied and that suitable alternative accommodation was available, but dismissed the possession proceedings because making an order was unreasonable.