Leicester City Council v Shearer

A local authority must operate its published housing allocation scheme lawfully, but procedural requirements cannot be used as a trap where the authority’s own misleading advice caused the applicant’s non-compliance. Where exceptional circumstances engage a special direct-allocation provision, the authority must give that option serious and informed consideration. The authority need not make the allocation. In possession proceedings, failure to consider an available policy discretion can make the decision to seek possession unlawful. A public-law defence remains exceptional, particularly for a trespasser, but the threshold was met on these facts.

Leicester City Council sought possession of a council property occupied by Mrs Shearer, the widow of the former tenant. She wished to remain there with her children and sought a fresh tenancy. Council officials advised her that she could not remain and asked her to provide proofs for an application for different accommodation. She did not provide them.

At trial, Mr Recorder Maxwell QC dismissed the possession claim. He held that the Council had failed properly to consider a direct let under paragraph 5.6 of its Allocations Policy and had misled Mrs Shearer about the purpose of the requested proofs. The Council appealed on four grounds concerning compliance with the policy, the need for further inquiries and the evidence of its decision-making. The central issue was whether the Council had acted unlawfully by pursuing possession without properly considering a direct let.

The appeal was dismissed. The Council’s published Allocations Policy was lawful, but the Council’s application of it in the circumstances was not.

1. The Council relied on the statutory housing allocation framework in the Housing Act 1996 and on the requirement for supporting proofs in its Allocations Policy. The court accepted that a public-law defence to a local-authority possession claim is available in principle, consistently with Wandsworth LBC v Winder [1985] AC 461, but that such a defence succeeds only in exceptional circumstances, particularly where the defendant is a trespasser.
2. The circumstances were exceptional. Mrs Shearer was vulnerable, was caring for two young children and had recently discovered her husband’s suicide. She had a respectable case for consideration under paragraph 5.6, which was a special provision for particular or exceptional circumstances. Its listed examples were illustrative, not exhaustive. The Council was not bound to grant a direct let, but it had a duty to give that option serious consideration and to investigate relevant matters, including the children’s vulnerability and the effects of requiring them to move.
3. The Council had repeatedly told Mrs Shearer that she could not remain at the property. It therefore could not rely on her failure to provide proofs when its own misleading advice had caused that failure. The Council already knew much of the information for which it sought formal proof. It had allowed form to prevail over substance.
4. The July 2011 emails supported the recorder’s finding that the Council had rejected the direct-let option after only cursory consideration. The division between the Council’s departments did not provide a sufficient explanation. Commencing possession proceedings without any or any proper consideration of the direct-let discretion was unlawful. The recorder’s dismissal of the possession claim was upheld.

• Court of Appeal (Civil Division) dismissed the Council’s appeal and upheld the dismissal of its possession claim.
• Northampton County Court, before Mr Recorder Maxwell QC, dismissed the Council’s possession claim following trial on 10 and 11 October 2012. Judgment was handed down on 10 January 2013.