Garbet, R (on the application of) v Circle 33 Housing Trust

A tenancy agreement may create an enforceable obligation to provide a specified service, even where the service is not required by general housing practice. Where the agreement requires consultation before the service is varied or removed, the landlord must continue providing the contracted service until lawful consultation has occurred. Substituting allegedly equivalent services does not discharge an obligation to provide the agreed service. Framing the claim as one of legitimate expectation adds nothing where the relevant obligations arise ex contractu. The court may grant declaratory relief without deciding whether the landlord is amenable to judicial review where a quashing order would provide no practical advantage.

The claimant was an assured tenant of sheltered accommodation. Her tenancy agreement required the landlord to provide a warden service and required consultation before services were varied or the conditions of the tenancy were changed. A resident warden retired on 5 February 2009. The landlord did not provide another resident warden, instead arranging other support services, and had not consulted the claimant before the change.

The claimant sought judicial review, relying principally on legitimate expectation and the tenancy agreement. The proceedings were heard as a rolled-up hearing. Subsequent consultation resulted in a later decision, effective from 1 June 2009, which was not separately challenged. The central issue was whether the landlord had breached its obligations by withdrawing the resident warden service without prior consultation.

1. Decision under challenge. The only relevant decision was the landlord’s decision not to continue providing a resident warden after the existing warden’s retirement, for the period from 5 February to 1 June 2009. The claimant could not challenge the warden’s retirement itself, nor the later decision which had not been pleaded or separately challenged.
2. Contractual obligations. The tenancy agreement imposed two relevant obligations: under clause 1(4) and Appendix A, to provide a warden service; and under clauses 1(5), 1(8) and 4(8)(i), to consult before varying that service or making relevant changes to housing management. Construed in its factual matrix, including the visible presence of a resident warden, the obligation was to provide the service of a resident warden.
3. The landlord’s provision of “equivalent services” did not satisfy that obligation. The issue was not what sheltered housing generally required, but what the tenancy agreement required. The landlord had neither continued to provide a resident warden nor consulted before withdrawing the service. Its justification for delaying consultation was legally unsound.
4. The claimant therefore succeeded on the substance of her claim. The analysis arose from contractual obligations and did not depend on legitimate expectation. The court declined to determine whether the landlord was exercising a public function or whether the claimant had a public law claim, because a declaration would provide all practical benefit and a quashing order was unnecessary. The court also declined to decide wider arguments about whether the service could ultimately be removed.
5. A declaration was ordered that the landlord had acted unlawfully by withdrawing the resident warden service after 5 February 2009 without first consulting the claimant in accordance with the tenancy agreement. Permission to proceed was granted. The contractual complaints procedure did not bar the claim.

This was a first-instance judicial review decision. The judgment records an earlier interim decision by His Honour Judge McKenna in R (Garbet) v Circle 33 Housing Trust [2009] EWHC 384 (Admin), but that decision formed part of the same litigation.