Section: Security of Tenure

Ruling on Ground 2A For Possession

Mr and Mrs McCann were joint secure tenants of Birmingham Council. Their marriage failed and Mrs McCann claimed to be the victim of domestic violence. Subsequently, an Injunction was issued which excluded Mr McCann from the house. However, Mrs McCann felt unable to remain in the home.

The Council rehoused Mrs McCann under its domestic violence policy in August 2001. She returned the keys of her former home to the Council, with a note saying she was giving up the tenancy. In November 2001, Mr McCann moved back into the home that Mrs McCann had terminated the tenancy of. He renovated the property and in January 2002, he applied for a mutual exchange with another council tenant. Mrs McCann also signed the application.

The Council then became aware that the joint tenancy had not been terminated and an officer arranged for Mrs McCann to sign a Notice to Quit. She had not appreciated this would lead to Mr McCann losing his home, and tried to retract the action, but the Notice was valid. The Council then sought a Possession Order to evict Mr McCann.

Mr McCann sought a Judicial Review, claiming the Council had acted unlawfully. He argued that the Council should have used the statutory Ground 2A for possession, which applied to cases of alleged domestic violence and had acted in bad faith in procuring the Notice to Quit. The Judge dismissed the claim and ruled that the Council had not acted improperly or unlawfully. It was not necessary to use Ground 2A when an alternative was available.

McCann v Birmingham CC

Occupation Status Clarified

In the early 1980s, Lambeth Council granted London & Quadrant Housing Trust informal occupation agreements for dozens of dwellings, which were mainly in need of major improvements. These were used as short-life accommodation for homeless households, pending permanent housing by the Council. They were also used to accommodate single people, who had no permanent housing priority with the Council. They tended to remain in occupation for long periods.

Written licences replaced all of the informal agreements in 1986. These were replaced by leases to the Trust for each dwelling in 1995. In 2000, the Council served Notices to end the leases and claimed possession when occupiers failed to vacate the dwellings.

In defending the claims for possession, the occupiers argued that the Trust had been acting as Lambeth Council's agent, and, therefore, all occupiers had been tenants of the Council. Even if they had not been tenants of the Council originally, they gained such status in 1995 - when the individual leases were granted for those dwellings that they were occupying as tenants.

They also argued that, as they had occupied the homes for more than 20 years, the 1998 Human Rights Act and the security of tenure provisions for occupiers of council dwellings protected them from eviction.

The local Judge dismissed the occupiers' defences and the Court of Appeal dismissed their subsequent appeal:

With regard to its dealings with the occupiers, the Trust had never been the Council's agent.
The occupiers had only ever been tenants of the Trust and they did not become tenants of the Council on the making of the 1995 leases because their occupation status did not constitute an interest in land.
Security of tenure provisions can only protect council tenants if the council is the immediate landlord.
The occupiers' human rights could not defeat the Council's legal right to possession.

Lambeth LBC v Kay and others

Section: Security of Tenure

Ruling on Ground 2A For Possession

Occupation Status Clarified

Legal Update

Reporting on July-Sept. 2004

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