09 July, 2013
The Court of Appeal has held that - where alternative accommodation needs to be provided under the terms of a ground for possession - there is no requirement that an offer of accommodation has been made before the hearing or that the accommodation is available at that date. The court only has to be satisfied that suitable accommodation will be available when the order takes effect.
The tenant appealed against an order requiring her to deliver possession of her home to the respondent local authority.
The property was a three bedroom detached house which the tenant had lived in with her parents all her life. The tenant succeeded to the tenancy upon her mother's death in July 2010 (her father having died in 1977). For the last 20 years of her mother's life the tenant had been her sole carer.
In 2011, the local authority determined that the tenant was an "under occupier" and asked her to apply for a one-bedroom property. The local authority allocated her a high level priority because of huge demand on its small stock of three bedroom houses. The tenant viewed several properties but refused to bid for them because of her deep attachment to her home. The local authority brought proceedings for possession - there was no live offer of a particular property at the time of trial.
In determining the possession proceedings the recorder found that the support given by the tenant to her mother was a very significant factor but that the tenant's attachment was borne out of familiarity and that a move would not prejudice her health. The recorder accepted that the tenant would be profoundly upset to leave, but that the needs of others outweighed her personal circumstances and that the balance lay in favour of her vacating the property. The recorder made the possession order conditional upon an offer of suitable accommodation being made.
The tenant's grounds for appeal were:
1. that the recorder had elevated the demands on the respondent's housing stock to the level of an overriding consideration; and
2. that no order could be made until a specific property which constituted suitable alternative accommodation had been identified.
Where alternative accommodation needs to be provided under the terms of a ground for possession - does an offer of alternative accommodation have to be made prior to the hearing or be available at the date of the hearing?
The Court of Appeal dismissed the appeal.
The recorder had considered the effect a move would have on the appellant, the length of time the appellant had lived in the house and its lifetime of memories. It would be wrong to treat the appellant's circumstances as imposing a restraint on the assessment of reasonableness. The pressure on local authority housing stock was a powerful, but not overriding, consideration.
The Housing Act 1985 did not require that an offer had to be made before the date of the hearing of the application for possession - the words of s.84(2) expressly contemplated that it might not be. If the court is satisfied that accommodation having particular characteristics would be reasonably suitable to meet a tenant's needs, and that such accommodation would become available, the court can make a possession order which would not take effect until the accommodation becomes available.
It would not always be appropriate for the court to make a possession order conditional on an offer of suitable alternative accommodation being made. Where a conditional order was made, it should include liberty to apply. It was important that the court retained the power to scrutinize the suitability of any particular property and to vary its orders at any time. A conditional order should also include a time limit for suitable alternative accommodation to be made available, and a provision that the order would lapse if the time limit was exceeded.
This is a welcome decision for local authorities as they are not expected to hold properties vacant pending the hearing of a possession claim where they are confident that other suitable properties will become available within a reasonable time.