Holt v Reading Borough Council

Reasonableness under ground 16 of Schedule 2 to the Housing Act 1985 requires a broad, common-sense, multi-factorial assessment of all relevant circumstances at the hearing. The effects on landlord and tenant must be weighed. Pressure on social housing is relevant, but it is only one factor and cannot automatically determine the result.

Where suitable alternative accommodation is required, the court need not identify a particular property. It may make a conditional possession order based on defined characteristics, provided evidence shows that reasonably suitable accommodation will be available when the order takes effect. Such orders require careful safeguards, including liberty to apply and normally a time limit.

Reading Borough Council sought possession of Ms Holt’s three-bedroom council house under ground 16 of Schedule 2 to the Housing Act 1985 after she succeeded to her late mother’s secure tenancy. Ms Holt had lived in the property all her life and had been her mother’s sole carer for many years. The Recorder found that possession was reasonable and made a conditional order requiring possession within 28 days of a formal binding offer of suitable one-bedroom accommodation.

Ms Holt appealed to the Court of Appeal, arguing that insufficient weight had been given to her personal circumstances and that the Recorder had unlawfully made an order without identifying particular suitable accommodation available when the order took effect. The central issues were the proper assessment of reasonableness and the permissible form of a conditional possession order.

Lord Justice Kitchin gave the leading judgment. Sir David Keene and Lady Justice Arden agreed. The appeal was dismissed.

1. Reasonableness. The assessment under ground 16 of Schedule 2 to the Housing Act 1985 is a broad, common-sense and multi-factorial evaluation of all relevant circumstances existing at the hearing. The court must weigh the effects of the order on both landlord and tenant, giving each factor the weight it deserves. The approach in Cumming v Danson [1942] 2 All ER 653 and Cresswell v Hodgson [1951] 2 KB 92 was applied.
2. A genuine practical desire to improve the deployment of social housing is relevant, as recognised in London Borough of Enfield v French (1984) 17 HLR 211 and Manchester City Council v Benjamin [2008] EWCA Civ 189; [2008] HLR 38. It remains one factor among many. Personal circumstances, length of occupation and support given to a previous tenant may outweigh housing pressures, as illustrated by Bracknell Forest Borough Council v Green [2009] EWCA Civ 238; [2009] HLR 38. The Recorder therefore made no error of principle and was not plainly wrong. Comparisons with factual conclusions in other cases are generally unhelpful because reasonableness depends on the facts of each case.
3. Suitable accommodation. Section 84(2)(c) and Part IV of the Housing Act 1985 require the court to be satisfied, on the evidence at the hearing, that suitable accommodation will be available when the possession order takes effect. Neither a prior offer nor accommodation available at the hearing is required. The accommodation need not be a particular identified property. If accommodation with specified characteristics would be reasonably suitable and will become available, a conditional order may be made. This accords with Wandsworth London Borough Council v Randall [2007] EWCA Civ 1126; [2008] 1 WLR 359.
4. Such an order is discretionary and must be considered carefully. Relevant matters include the tenant’s vulnerability, representation, the burden of returning to court, and the frequency and variability of available accommodation. Express liberty to apply should normally be included, enabling the court to scrutinise a particular property and vary or discharge the order. A time limit and lapse provision should normally also be specified. Liberty to apply is implied while the order remains operative, as explained in Manchester City Council v Finn [2002] EWCA Civ 1998; [2003] HLR 41.

• Court of Appeal (Civil Division): dismissed Ms Holt’s appeal and upheld the conditional possession order. [2013] EWCA Civ 641.
• Reading County Court: Mrs Recorder Moulder made a possession order after finding that possession was reasonable and that suitable accommodation would be available through the specified conditional mechanism.