Humber Landlords Association v Hull City Council

A public authority may adopt a general policy in unqualified terms. The policy becomes an unlawful fetter only if, properly interpreted, it requires the authority to act in one way regardless of the circumstances or prevents consideration of relevant matters. A policy must be interpreted objectively from its published wording and context; later explanations by officers do not control its meaning. In housing enforcement, protecting tenants from retaliatory eviction, encouraging complaints and promoting landlord accreditation may further the purposes of Part 1 of the Housing Act 2004. The authority may attach weight to relevant considerations, and the court intervenes only where the weight given is irrational. A policy remains lawful if it sets a normal course while preserving a discretion to consider the circumstances of individual cases.

The claimant, a representative body for private landlords and letting agents, sought judicial review of the defendant council’s decision to approve its Private Sector Housing Enforcement Policy 2018–2022. The policy concerned enforcement of housing standards and hazards under Part 1 of the Housing Act 2004.

The claimant alleged that the policy unlawfully required formal enforcement in nearly every case, fettered the council’s discretion, pursued the improper purpose of preventing retaliatory eviction, gave excessive weight to landlord accreditation, failed to take account of statutory guidance and the Enforcement Concordat, and was perverse because the proposed accreditation scheme was not yet operational.

1. Claim dismissed. The policy had to be interpreted objectively by reference to its language, read in its proper context. The court was not bound by differing interpretations expressed by council officers.

2. Properly construed, the policy required formal enforcement normally for category 1 and significant category 2 hazards, but preserved consideration of all the circumstances. Membership of the proposed Hull Accredited Landlord Scheme was a factor of particular weight, not an automatic exemption. Informal action remained available for insignificant category 2 hazards. The policy required a risk-and-benefit analysis, sought consistency, and did not restrict formal enforcement to improvement notices.

3. The policy was not an unlawful fetter. A policy-maker may express policy in unqualified terms and need not state every possible exception. The legal question is whether the policy, in operation, prevents the decision-maker from departing from it or considering relevant circumstances. On either the court’s interpretation of the policy or its alternative assessment of the wording, that threshold was not met.

4. Protecting tenants from retaliatory eviction was a legitimate consideration. It could encourage complaints, assist the council in identifying sub-standard housing and thereby promote the purposes of Part 1 of the Housing Act 2004. Encouraging accreditation was also capable of promoting housing standards. Neither objective was an improper motive.

5. The council had taken the Enforcement Guidance and the Enforcement Concordat into account. The policy allowed consideration of individual circumstances, gave landlords an explanation of hazards and possible remedial work, and allowed an opportunity to remedy hazards within the limits of the Act.

6. The court would intervene in the weight given to relevant considerations only where the decision-maker had acted irrationally. The policy did not give overwhelming weight to accreditation or retaliatory eviction. The fact that protection under the Deregulation Act 2015 had limited scope and duration did not make the policy irrational. Nor did the fact that the new accreditation scheme was not yet operational make adoption of the policy perverse, since the policy was sufficiently flexible to take that circumstance into account.