Succession and Allocation Policies

Article

11 December, 2013

The Court of Appeal has recently upheld a widow's public law defence to possession proceedings because the local authority failed to consider granting her a new tenancy of the property in accordance with their allocation scheme.

Background of the Case

Mrs Shearer had lived at the property in question with her husband, Mr Shearer, who was the secure tenant and their children. When Mr Shearer died, Mrs Shearer succeeded the tenancy by statute.

The local authority operated a choice based allocations scheme, under which applicants were placed in bands of housing need. However, the allocations scheme also allowed the authority to make direct offers of accommodation to applicants in exceptional circumstances. The local authority Housing Services Department informed Mrs Shearer that she and her children could not continue to live at the property and advised her to apply for alternative accommodation and to contact their Housing Options Department for further advice.

The Housing Options Department then asked Mrs Shearer to provide documentation so that she could be considered for re-housing. Mrs Shearer was not told about the possibility of a direct offer being made, or that if she provided the requested information, it could be used to determine whether a direct offer should be made.

Mrs Shearer failed to provide the requested information and asked to remain in the property. The local authority refused to allow Mrs Shearer to remain in the property and commenced possession proceedings. The County Court dismissed the claim and found that the local authority had acted unlawfully because it had misled Mrs Shearer into thinking that the sole purpose of the requested documentation was to consider rehousing her away from the property, when it was actually needed to consider granting her a direct let of the property.

The local authority appealed this decision.

Key Points of the Court of Appeal Decision

The local authority had provided misleading advice by telling Mrs Shearer that there was no question of her being able to remain in the property. It was made clear to her that the most she could achieve by submitting the requested documents was to pursue an application for different accommodation. Mrs Shearer was a vulnerable person and in the circumstances could not be expected to appreciate that the Housing Services Department was giving her the wrong advice. The facts of the case were exceptional and the local authority could not rely on Mrs Shearer's non compliance with its allocation scheme when they had in fact caused that non compliance.

Although the local authority were not bound to make a direct offer to Mrs Shearer, they had acted unlawfully by failing to give this option any consideration and instead commenced possession proceedings.

Having regard to all the circumstances, it was proper for the county court judge to have concluded that the local authority had rejected the option of making a direct let and accordingly the local authority's appeal was dismissed and Mrs Shearer was able to raise a successful public law defence.

Overview

This case highlights the importance of local authorities carefully following allocation schemes that are in place in order to avoid tenants raising a public law defence to possession proceedings. The local authority in this case was criticised by the Court for not taking into account Mrs Shearer's exceptional circumstances when they well aware of them. The Court felt the Defendant had found herself in a desperate situation which meant she had a respectable case for receiving the benefit of a direct let under the allocation schemes but the Defendant had failed to even consider these matters.

The judge in this case also highlighted that the local authority "wrongly allowed form to prevail over substance" as the local authority already knew the matters of which they were requesting formal proof, for example identity of the applicant, details of children and current address. Therefore, this case highlights the importance of taking all of an applicant's circumstances into account when deciding whether they are eligible for rehousing and correctly following allocation procedures.

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