How will the courts approach a social housing landlord’s discretion to allocate accommodation on second successions under Part 6 of the Housing Act 1996 (HA 1996)? Legal analysis on proportionality and second succession claims to property from the Holley and another v London Borough of Hillingdon  EWCA Civ 1052) case.
Toby Vanhegan and Riccardo Calzavara of Arden Chambers, say that in a proportionality assessment under article 8 of the European Convention on Human Rights (ECHR), a long period of residence is of little consequence.
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What was the background to Holley and another v London Borough of Hillingdon case?
This was a possession claim. The appellant was, together with his brother, the occupier of 46 Westwood Close, London HA4 7RE (the property) which was a three-bedroom house. His grandmother had been granted a secure tenancy of the property and, on her death, the appellant’s grandmother’s husband succeeded to it. When the husband died, the appellant was unable to succeed because he would have been a second successor. The appellant applied for a discretionary tenancy but this was refused by the respondents because he was not old enough to qualify under their policy.
The respondents sought possession. The appellant defended the claim on the basis that the respondents’ second succession policy was discriminatory on the grounds of age and had, in any event, not been properly applied to his case. He also relied upon ECHR, art 8. The case was listed for a summary determination. At that hearing, HHJ Karp sitting at the county court at Willesden, granted a possession order.
What issues were before the Court of Appeal?
The appellant appealed on two grounds. First, the judge was wrong not to have taken account of his length of occupation of the property when deciding his ECHR, art 8 defence. Second, the respondents’ policy on second successions was unduly rigid because of the age requirement, and this unlawfully fettered their discretion to allocate accommodation under HA 1996, Pt 6.
The Court of Appeal granted permission on both grounds. Before the appeal was heard, the respondents served a witness statement which, for the first time, exhibited a copy of their allocation scheme at the relevant time. The county court had had to make do with a practice note about the policy in relation to second successions. The disclosure of the scheme revealed that it contained a form of exceptionality provision which gave the respondents the discretion to allocate accommodation in certain circumstances. The witness statement said that, even applying this exceptionality provision, the respondents would not have granted the appellant a discretionary tenancy.
What did the court decide?
In relation to the ECHR, art 8 ground, the court held that Thurrock BC v West  EWCA Civ 1435,  All ER (D) 99 (Nov) did not decide that length of residence could never be part of an ECHR, art 8 proportionality assessment, even in second succession cases. It was held that the true analysis was that the occupier must first demonstrate a minimum length of residence in order to show that the property is a home so that ECHR, art 8(1) is engaged.
Second, the length of residence will not on its own be sufficient to found an ECHR, art 8(2) proportionality defence in the second succession context because, if it would, then it is hard to see how the English statutory prohibition of second succession could be compatible with the ECHR, as has previously been held.
Third, length of residence may form part of an overall proportionality assessment in the sense that all the circumstances of the case need to be considered.
Fourth, length of residence is unlikely to be a weighty factor in second succession cases because Parliament has chosen to exclude second successors whatever the length of their occupation. Accordingly, a long period of residence is of little consequence.
Were it not for the fact that the judge’s decision, albeit not properly reasoned, was plainly right on the merits, the court would have allowed the appeal on this ground. The court then carried out the ECHR, art 8 analysis that the judge should have done, based on the information that was available at that hearing three years ago, and dismissed the appeal on this ground.
On the second ground, the court held that the appellant’s case came nowhere near the degree of exceptionality that gave him a real, rather than a fanciful, prospect of success under a residual discretion, however widely framed, as to an allocation.
However, the court said two further things about the allocation issue. First, it held that R (Ahmad) v Newham LBC  UKHL 14 did not do away with any requirement for a residual discretion to be included within an allocation scheme. That case was a challenge based on irrationality rather than an unlawful fettering of discretion and, anyway, Newham’s allocation scheme plainly contained provision for the exercise of a residual discretion. Second, the court left open the issue of whether the respondents’ allocation scheme did in fact contain a provision which gave it a full residual discretion. Accordingly, the court dismissed the appeal on this ground too.
What should housing lawyers take from this case?
The appellant was refused permission to appeal to the Supreme Court by the Court of Appeal, but is now seeking funding to ask the Supreme Court for permission. This is on the basis that the Court of Appeal’s judgment has effectively prescribed little weight to length of residence whatever the facts of any future case. Weight must be a matter of fact and degree for the judge to decide on the circumstances of each case. Short residence would ordinarily mean little weight, whereas long residence should mean greater weight. It is wrong to predetermine weight in the fact sensitive exercise of a proportionality decision under ECHR, art 8.
The court’s decision to decide the appellant’s ECHR, art 8 defence on the basis of the facts as they were three years previously has also deprived him of the opportunity of having his current circumstances being considered in relation to the issue of proportionality. There appears to be no power for the county court to do anything now to halt the eviction process, regardless of the fact that the appellant’s mental health has declined sharply and that his ECHR, art 8 defence is now stronger than before. This would appear to amount to a procedural breach of ECHR, art 8.
There are probably two lessons to be learnt from the case. First, length of residence is a relevant circumstance to be taken into account when deciding the issue of proportionality under ECHR, art 8, but is likely to carry little weight in second succession cases. Second, local housing authorities should probably have a provision in their allocation schemes which give them a full residual discretion to allocate accommodation in exceptional circumstances. This provision should be considered in second succession cases.
Interviewed by Nicola Laver. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.