Eastlands Homes Partnership Ltd v Whyte

A registered social landlord exercising a possession power through a starter-tenancy procedure must comply with its own published procedures and apply conventional public-law standards. The Gateway (b) defence is not confined to narrow Wednesbury irrationality, and a “light touch” review is not an appropriate gloss where there has been no prior judicial examination of the facts.

Failure to provide the tenant with the evidence to be considered, widening the matters examined beyond the case summary, and failing to consider a rent-arrears policy may together make the decision one which no reasonable authority could reach. A later increase in arrears cannot retrospectively validate an unlawful decision to issue possession proceedings. The claim must be dismissed.

Eastlands Homes Partnership Ltd, a registered social landlord, sought possession of a property let to Sandra Whyte under a starter tenancy. The tenancy had previously been extended, and the landlord later decided not to convert it to an assured tenancy after considering rent arrears and an allegation of anti-social behaviour. An internal appeal upheld termination, but the panel excluded the anti-social-behaviour allegation because it was not supported by formal evidence.

The tenant defended the possession claim on public-law grounds, alleging procedural unfairness, failure to follow the landlord’s policies, failure to consider relevant matters, irrationality and legitimate expectation. The landlord accepted, subject to reservation, that it was a public authority and public body. The central issue was whether the Gateway (b) defence was made out.

1. Public-law framework. The court was bound by The Queen (on the application of Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363 in treating the claimant as a public authority and public body. The Gateway (b) defence permits a possession claim to be challenged on conventional public-law grounds, including procedural unfairness, failure to consider relevant matters, legitimate expectation and irrationality. It is not confined to narrow Wednesbury unreasonableness, and a “light touch” review was not an appropriate gloss in a starter-tenancy case where the facts had not previously been rigorously examined by a court.
2. Procedural fairness and policy. The timing provision in the landlord’s appeal procedure was directory. The delay in hearing the appeal caused no meaningful prejudice because the appeal was heard before proceedings were issued. By contrast, advance disclosure of the evidence was essential. It enabled the tenant to identify factual disputes and decide whether to obtain assistance. The panel also considered matters extending beyond the case summary, including the earlier rent history, without giving the tenant advance notice. The panel failed to consider the landlord’s rent-arrears policy, which applied to starter and assured tenancies and distinguished inability to pay from deliberate refusal to pay.
3. Legitimate expectation. The landlord’s published procedure created a legitimate procedural expectation of a further appeal. The failure to provide one was relevant in the context of the other procedural defects. The tenant did not establish a substantive legitimate expectation that the second starter tenancy would automatically convert to an assured tenancy.
4. Continuing decision-making. Recovery of possession is a continuum involving successive reviewable decisions. The authority must keep the position under review and consider relevant facts that emerge during the proceedings. However, the unlawful decision to issue these proceedings could not be retrospectively validated by later arrears or later events. Any later possession claim would have to rely on the relevant grounds in Schedule 2 to the Housing Act 1988.
5. Disposition. The defence was made out. The claimant had improperly exercised its powers, and the possession claim was dismissed. Permission to appeal was granted.

First-instance decision. The claim had begun in the County Court and was transferred to the High Court for trial. No prior appellate decision in this litigation is stated.