Newark and Sherwood Homes v Gorman
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Gloster,THE MASTER OF THE ROLLS |
| Judgment Date | 03 June 2015 |
| Neutral Citation | [2015] EWCA Civ 764 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B5/2014/1082 |
| Date | 03 June 2015 |
[2015] EWCA Civ 764
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANSFIELD CROWN COURT
(HIS HONOUR JUDGE PUGSLEY)
Royal Courts of Justice
Strand
London, WC2A 2LL
THE MASTER OF THE ROLLS
Lord Justice Sullivan
Lady Justice Gloster
B5/2014/1082
Mr I Colville (instructed by Hopkins Solicitors LLP) appeared on behalf of the Applicant
Mr A McNamara (instructed by Newark and Sherwood In House Counsel) appeared on behalf of the Respondent
Introduction
This is an appeal with the permission of the judge from the order dated 14 March 2014 of HHJ Pugsley, declaring on a preliminary issue that the respondent council had elected to operate an introductory tenancy regime for the purposes of Section 124 of the Housing Act 1996 ("The 1996 Act") and therefore that the tenancy granted by the respondent to the appellant on 7 July 2011 was an introductory tenancy for the purposes of part V of the 1996 Act.
Section 124
The introductory tenancy regime was established by chapter 1 in part V of the 1996 Act. The relevant provisions are contained in section 124, and are as follows:
"(1) A local housing authority … may elect to operate an introductory tenancy regime.
(2) When such an election is in force, every periodic tenancy of a dwelling house entered into or adopted by the authority … shall if it would otherwise be a secure tenancy, be an introduction tenancy unless immediately before the tenancy was entered into or adopted the tenant, or, in the case of joint tenants, one or more of them was (a) a secure tenant at the same or another dwelling house, or (b)[…]
(3) Sub-section (2) does not apply to a tenancy entered into or adopted in pursuance of a contract made before the election was made.
(4) For the purposes of this chapter, a periodic tenancy is adopted by a person if that person becomes the landlord under the tenancy, whether on a disposal or surrender of the interest of the former landlord.
(5) An election under this section may be revoked at any time without prejudice to the making of a further connection."
The appellant's tenancy
On 7 July 2011, the respondent granted the appellant what was described as an introductory tenancy commencing on 1 August 2011 for a period of 12 months, following which it would become a secure tenancy. The appellant fell into arrears with the rent and, following a number of warning letters, the respondent issued a claim for possession of the property. In his defence to those proceedings, the appellant contended that the respondent's introductory tenancy regime was unlawful because the respondent had not elected to operate an introductory tenancy regime in accordance with section 124(1) of the 1996 Act at the time that his tenancy was granted in 2011. The appellant sought a declaration that he was a secure tenant. On 5 September 2013, the following preliminary issue was ordered to be tried:
"Whether or not the [appellant's] tenancy was an introductory tenancy."
Facts
HHJ Pugsley did not hear any oral evidence. He determined the preliminary issue on the basis of copies of the relevant reports and minutes of the respondent's Housing and Environmental Health Committee, which on, 5 May 1998 became the respondent's Community Services' Committee, which were provided as exhibits to a witness statement of Karen White, the respondent's Director of Safety. For present purposes, the relevant reports and minutes are as follows:
At a meeting of the committee on 27 March 1997, the respondent's Director of Housing and Environmental Mental Health informed the committee that the 1996 Act had introduced the consent of introductory tenancies.
His report summarised the features in the introductory tenancy regime and recommended that he should undertake consultation with tenants on the proposed adoption of introductory tenancies and report back to the committee. His recommendation was accepted. On 3 July 1997, the committee gave further consideration to the matter in response to a request from the tenant's federation that it needed further time to consider the implications of the proposal. Having considered the matter, the Tenants' Federation wrote to the Director saying that the proposal should be rejected because the existing regime could be made to work effectively. The Director reported to the committee at its meeting on 18 September 1997. Having referred to the letter from the Tenants' Federation, the Director said:
"It is evident from both the reply of the Federation and following discussions of the area and district panels that many tenants are uncertain as to the implications that introductory tenancies would have, and I know that some tenants voiced fears that it may lead to victimisation of vulnerable tenants.
Whilst I am conscious of these concerns, I believe that experience elsewhere in the country demonstrates that it is possible for the council to build in sufficient safeguards to protect tenants from spurious complaints.
I am also conscious that the council needs to contrast these concerns with the genuine fear and distress that can be caused to tenants as a result of flagrant breaches of tenancy conditions. This will always involve striking a balance between the need to curb the actions of the minority and the freedoms of the majority.
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