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03 JUL 2013

Holt v Reading Borough Council [2013] EWCA Civ 641; (2013) PLLR 087

Housing - local government - over-occupation - possession orders - succession to tenancy - sole occupier - reasonableness of granting order for possession - suitable alternative accommodation - section 84(2) Housing Act 1985 - Schedule 2 Part III Ground 16 Housing Act 1985 - conditional order

A Recorder was correct to make a conditional order for possession where a successor tenant over-occupied a three bedroom house on their own. The Recorder had taken into account all the relevant factors, weighed them properly and arrived at a suitable conclusion. It was within the power of the Recorder to grant a conditional order. The phrase ‘suitable alternative accommodation' was broad enough to encompass housing identified by reference to certain characteristics and did not require a specific property to have been identified.

7 June 2013

Court of Appeal

Arden and Kitchin LLJ; Sir David Keene

(1)        The appellant (H) had succeeded her mother to the secure tenancy of a property owned by the respondent (R). H had spent her entire life in the property and had been her mother's sole carer for the 5 years prior to her death. H lived alone in the three bedroom property. R sought to take possession under Ground 16 of Schedule 2 Part III of the Housing Act 1985. The Recorder found that it was reasonable to make such an order and that she was satisfied that suitable alternative accommodation would be available when the order took effect.

(2)        H appealed the decision of the Recorder on the basis that she had failed to give sufficient weight to the support H had provided for her late mother; that the Recorder had erred in finding that the move would not destabilise H and in finding that suitable alternative accommodation would be available when the order took effect: the Recorder should have decided whether a particular unit of accommodation was suitable for H; and that the order was both unprecedented and wrong.

(3)        Kitchin LJ held: That the Recorder had had careful and sufficient regard to all of the points H had made and had directed herself correctly in identifying the issues and weighing them properly. In assessing the reasonableness of a possession order it was not helpful to look to other decided cases, and doing so would only increase the length and cost of the case [45] - [45].

(4)        That the requirement that the judge be satisfied that suitable alternative accommodation would be available when the order came into effect was satisfied by reference to particular characteristics and did not require a specific property to be identified. This was clear both from the legislation and case law (Wandsworth London Borough Council v Randall [2007] EWCA Civ 1126 considered). Furthermore, it would not make good sense to require a local authority with limited housing availability to hold an empty property pending the outcome of legal proceedings. This was not to say that the court should not take great care in ensuring that the order would be both proportionate and necessary, and, although an order implicitly included liberty to apply, this should be expressed on the face of the order to highlight that the court retains jurisdiction over the execution of the order. A time limit within which the local authority must make the accommodation available should be included in the order and in some circumstances it may be appropriate to require that a warrant only be granted with the permission of the court [50] - [61].

Appeal dismissed

Key paragraphs

[1] - Introduction

[2] - [12] - The background

[13] - [20] - The legislation

[21] - [34] - The judgment of the recorder

[35] - [36] - The appeal

[37] - [45] - The assessment of reasonableness

[46] - [61] - Suitable alternative accommodation

[62] - Conclusion

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