Section: Security of Tenure

Case Law Update

Ms White had been a secure tenant of a council. When the Council sold her home to a housing association, she became an assured tenant.

Ms White then fell into arrears and in 2004 a Suspended Possession Order was made. She breached the terms but remained in occupation paying rent. When she sought to exercise her preserved Right to Buy, the Trust responded that she had become a trespasser.

That view was upheld by the Court of Appeal, which ruled where, as in this case, an Order stated a date on which an assured tenant had to give possession, then the tenancy ended on that date - even if the Order suspended any enforcement on terms and irrespective of whether or not those terms had been complied with.

White v Knowsley Housing Trust [2007] EWCA Civ 404, 2 May 2007
Mr Walker's mother and father had been granted a joint tenancy by the Council in 1965.

In 1969, the father died and the tenancy continued in the mother's sole name. In 2004, when she died, Mr Walker claimed the Right to Succeed to the tenancy.

The Council said that when the mother became a sole tenant on the death of the father it had counted as a "succession" under the Housing Act 1985, section 88(1)(b).

The House of Lords held that the definitions of "successor" in the legislation could only apply to events occurring after the introduction of the concept of secure tenancies in 1980. Therefore, the mother was not a "successor" and Mr Walker was entitled to the tenancy.

Birmingham CC v Walker [2007] UKHL 22, 16 May 2007
The Council decided to amend its standard terms of tenancy, including those held by current secure tenants. Their agreements provided that the terms would not be changed without consultation with and approval from tenant's representatives.

The Council gave notice of unilateral variation under the Housing Act 1985 ss102-103. It argued that that provision in the current agreement unlawfully fettered its statutory powers.

Judicial Review of that decision was rejected by the High Court and the Court of Appeal dismissed an appeal. The present clause was incompatible with the Council's statutory power of unilateral variation. The Act set out the only ways in which the variation of a secure tenancy could be regulated. It did not allow for delegation to, and a veto by, tenant's representatives.

R(Kilby) v Basildon DC [2007] EWCA Civ 479, 22 May 2007
The claimant had been a secure tenant. The Council had obtained an Order demoting his tenancy. It then decided to seek his eviction.

The claimant unsuccessfully sought a review of that decision, in which he disputed the facts relied on by the Council. The review was conducted by the Council itself.

The claimant sought Judicial Review, on the grounds that the decision making structure was non-compliant with Art 6 ECHR. It did not allow for an independent adjudication of the facts as required by Tsfayo v UK.

A High Court Judge granted permission to apply for Judicial Review, which is scheduled for 27 September 2007.

R(Gilboy) v Liverpool CC [2007] 26 June CO/10584/2006

Section: Security of Tenure

Case Law Update

Legal Update

Reporting on May-July 2007

Quick Links

Welcome to the Legal Update

Archive Issues Reporting Periods