24 March, 2009
Due to the perennial problems caused by the sharp decline in social housing stock in the United Kingdom, situations where properties are not being utilised to their full potential will become more difficult to avoid. Such a situation arose in the Court of Appeal's decision in the case of Bracknell Forest Borough Council v (1) Harry Melvin Green (2) Denise Ann Green  EWCA Civ 238 where the court was asked to decide between the intention of the Council to use the property in question to accommodate prospective tenants in need of large houses and the wishes of the current tenants to remain in their home of over 50 years. Such difficult and sensitive issues are always challenging, but the Court of Appeal has sought to provide some guidance on how to approach such cases in relation to social housing stock.
The first respondent (G) lived with his sister (the second respondent) in a semi-detached three bedroom property, owned by the Council and had done so since 1958. He succeeded to the tenancy on the death of his mother who had been a secure tenant under the Housing Act 1985 provisions. His sister moved back into the property in 1984.
In 2006, the Council issued a notice upon G seeking possession of the property and attempted to rely upon ground 16 of Schedule 2 of the 1985 Act which provides for situations where the accommodation afforded is more extensive than reasonably required by the tenant. The Council's reasoning for this was clear: the tenants' property was part of their decreasing social housing stock, which had been reduced by the 'right to buy' provisions and had not been replaced; there was a long list of prospective tenants seeking social housing; 3 bedroom properties were needed by families and the house was a public resource worth over £500,000 which was not being used to its full capacity.
At the county court hearing, the Recorder considered that due to G's own circumstances and those of his sister in terms of their emotional attachment to the property, it was not reasonable to grant the possession order. The Recorder felt that removing the two tenants from the property would cause them considerable anguish and a potential eviction from the house where they had so many family memories could permanently destabilise them.
It was also held that whilst the offers of alternative properties were suitable, there was no point in discussing it until the issue of reasonableness had been satisfied and as this had not been done in the present case, it was immaterial to examine it in relation to G.
In the appeal, the Council submitted that the availability of suitable alternative accommodation had been incorrectly disregarded as a relevant factor to the reasonableness of making a possession order and that the Recorder had restricted his consideration of the relevant circumstances by treating the issue as immaterial. They also contended that he ought to have considered the suitability of the alternative properties when determining reasonableness, in addition to the under-occupation of the property in question.
The Council's appeal was dismissed. The Court of Appeal held that it was difficult in nature to overturn the Recorder's decision as the role of the appeal court was to review the decision of the lower courts. In the present case, the Recorder was required to consider whether it would be reasonable to make an order for possession and thus the Court of Appeal should be cautious in differing from the trial judge's evaluation of the facts.
By evaluating the judgment as a whole, it was clear that the Recorder had the availability of suitable alternative accommodation in mind throughout, and proper consideration had been given to it. Taking into account all the factors relevant to the reasonableness of making a possession order, the Recorder was entitled to conclude that the combination of issues relied upon by the Council was outweighed by the length of G's occupation of the property, his personal and family circumstances, his age and the effect that such an order may have upon him. Furthermore, the terms of the 1985 Act expressly contemplated cases such as this where a tenant's personal circumstances would prevail over the pressures on social housing.
In a situation such as this where there are many different emotions and pressures for a judge to take into consideration, it can be hard to ignore the effect that a possession order can have upon an individual. Similarly, the congested waiting list for social housing cannot be discounted. It is a difficult balance which a court must seek to achieve between these competing factors.
However, the Court of Appeal in this instance has provided for a narrow set of circumstances where the circumstances of the tenant can outweigh the needs of the public at large. The court acknowledged that the facts in G's scenario were unusual and it was because of this that led them to find in his favour. Whether a court would be so willing to decide in a similar fashion in a case with more 'typical' facts appears doubtful.