Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Longmore,Sir Martin Nourse,Lord Justice Pill,Lord Justice Sedley |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2007] EWCA Civ 404,[2008] EWCA Civ 196 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2006/2239/2253,Case No: B5/2007/0079 |
| Date | 19 March 2008 |
[2007] EWCA Civ 404
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LIVERPOOL COUNTY COURT
HHJ MACKAY
DISTRICT JUDGE SYKES
Lord Justice Buxton
Lord Justice Longmore
Sir Martin Nourse
Case No: B2/2006/2239/2253
Mr Jan Luba QC and Mr Adam Fullwood (instructed by Stephensons) for the Appellant
Mr Edward Bartley Jones QC and Mr Michael Singleton (instructed by Anthony Collins LLP) for the Respondent
Mr Christopher Baker (instructed by The Solicitor to Her Majesty's Treasury) for the Intervener
Hearing dates: 14, 15 March 2007
Background and history of the proceedings
This appeal raises issues, we were told not previously determined but now regarded as urgent, that fundamentally affect the operation of assured tenancies under the terms of the Housing Act 1988 [the 1988 Act]. We were told from the bar that 250,000 tenancies might be potentially affected, including but not limited to many properties let out by registered social landlords such as the respondent [Knowsley], which is a non-profit-making housing association. Before entering upon the undoubtedly difficult general questions that have to be addressed in the course of the appeal, I must first explain how the appeal itself arose.
Mrs White became a local authority tenant of 34 Chesterfield Drive Liverpool [the premises] on 19 April 1993. As a local authority tenant she held a secure tenancy under the terms of the Housing Act 1985 [the 1985 Act]. On 15 July 2002 Knowsley acquired the whole of the local authority's housing stock and Mrs White accordingly became a tenant of Knowsley. Because by that date registered social landlords had been removed from the list of persons eligible to grant secure tenancies, Mrs White held from Knowsley an assured tenancy under the terms of the 1988 Act.
Unfortunately Mrs White fairly rapidly fell into arrears of rent, though it should be said on her behalf that that was at least to a considerable extent contributed to by difficulties in the payment of housing benefit. Arrears of rent is one of the grounds on which the landlord of an assured tenancy may seek possession of the premises by proceedings under section 7 of the 1988 Act. Such a claim for possession was issued out of the Liverpool County Court, and came before District Judge Sykes on 8 June 2004. She made an order in the terms set out in §21 below, which included an order that Mrs White give Knowsley possession of the premises on or before 6 July 2004, but with enforcement suspended on terms. The effect in law of that order is a matter of acute controversy. Put shortly, the issue is whether the overall effect of the order was that Mrs White remained in the premises as still an assured tenant; or whether that tenancy terminated on the latest date stated in the order for the delivery of possession. However, at this stage of the exposition it suffices to say that the effect of the order on the ground was that Mrs White remained in the premises on condition that she paid a required weekly sum off the arrears together with the current rent.
Mrs White then decided that she would like to exercise her right to buy the premises under Part V of the 1985 Act, a right originally limited to secure tenants, but which had been preserved in the case of tenants of registered social landlords when those tenancies were changed from secure to assured status. Mrs White had found or had been found by an organisation that was prepared not only to lend her the purchase price but also to pay off her arrears of rent. Mrs White made her application in January 2005. Knowsley went through the process of administering the application but then, somewhat late in the day, took the position that because of Mrs White's failure to comply with the terms of the order of DJ Sykes she was no longer a tenant of the premises but only a trespasser in them; and thus was ineligible for the right to buy. The court ordered what it thought would be the resolution of that dispute by requiring Mrs White to apply for a declaration that she was still an assured tenant.
That application came before HHJ Mackay on 14 September 2006. He dismissed the application but, seeing that the underlying issues were of importance, granted leave to appeal to this court. Mrs White then acquired the great advantage of representation by Mr Luba QC, who considered that in order to ensure that all possible issues were before this court he should apply, over two years out of time, to appeal against DJ Sykes' original order. I granted permission for that appeal to be brought before the court. I will simply record that I took that step as part of the management of an existing appeal in the dispute between Mrs White and Knowsley that was already before the court. The decision to grant permission was without prejudice to what would have been the proper route of appeal had the only matter in issue been the order of DJ Sykes.
Before coming to the substance of the two appeals it will unfortunately be necessary to explain a number of the features of the underlying law that the arguments before us assumed.
The statutory background
The various schemes for rented housing are of formidable complexity, but the following are the relevant elements for present purposes.
Before the Housing Act 1980 [the 1980 Act] there were two main schemes of rented accommodation. The first (“council housing”) was in the public sector, the landlords being public bodies. Tenants of such properties had no private law protection against eviction, or in respect of levels of rent. Their protection, in practice far from ineffective, was to be found in political pressure and understanding and, to a much less significant extent, in public law. The second type of rented accommodation existed in the private sector, with individuals and private bodies as the landlords. Both rent levels and powers of eviction had been subject to legislative control since as long ago as the Increases of Rent and Mortgage Interest (Restrictions) Act 1920, the statutory scheme being thereafter compendiously known as “The Rent Acts”.
So far as security of tenure is concerned, the Rent Acts provide in relation to all but a few special types of tenancy that when the contractual tenancy comes to an end, for whatever reason, the tenant has an absolute right to continue living in the premises, largely on the same terms as under the contractual tenancy. The tenant is then called by the Rent Acts a “statutory tenant”, a concept to which I shall have to return. The landlord can only obtain possession of premises occupied by a statutory tenant by applying to the court, and establishing one of a number of statutory grounds, one of which relates to arrears of rent. By section 100(2) of the Rent Act 1977 the court may on making such an order for possession:
(a) stay or suspend execution of that order, or
(b) postpone the date of possession
for such period or periods as the court thinks fit.
The 1980 Act introduced radical alterations. Those relevant to our concerns in this case are as follows. First, Chapter I of Part I created the right to buy for public sector tenants. Second, Chapter II of that Part created security of tenure for public sector tenants by converting their holding to a “secure” tenancy, originally introduced by section 28 of the 1980 Act. Third, Part II introduced a new type of holding for private sector tenants, the “assured” tenancy, which was intended to reduce the influence of Rent Act tenancies on the rental market. That latter step was taken further by the 1988 Act, which provided that after a date in early 1989 no further Rent Act tenancies could be created, and which assumes that any letting after that date by a person who is not qualified to be the landlord of a secure tenancy will be an assured tenancy. That is how Mrs White's tenancy, with a body, Knowsley, that is not now recognised as a “public” landlord able to grant secure tenancies, is and has to be an assured tenancy.
Secure and assured tenancies compared
There are two kinds of assured tenancy, assured shorthold tenancies and assured non-shorthold tenancies. Because Mrs White's tenancy is of the latter kind I will confine myself to that category in comparing assured tenancies with secure tenancies.
As will have been seen from the brief account given above, these two types of tenancy were introduced for significantly different reasons. The secure tenancy was designed to give public sector tenants rights that they had previously altogether lacked. The assured tenancy was designed to loosen up the private sector market, and in the longer term it has become the instrument for new tenancies in that market. That said, there were significant similarities in the machinery adopted in each case. First, a matter to which I shall again have to return, both operated by placing restrictions on the enforcement of the terms of a contractual tenancy, rather than, as in the case of the Rent Acts, by creating new statutory rights that only arose after the contractual tenancy had terminated. Second, each type of tenancy can only be brought to an end by an application to the court, on grounds that are largely similar in each case; .although the limitation on the ending of the tenancy is expressed in somewhat different language in section 82 of the 1985 Act (as to secure tenancies) and section 5 of the 1988 Act (as to assured tenancies), a matter to which I will again have to return. Third, statute gives in each case...
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