R (McIntyre) v Gentoo Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr John Howell QC |
| Judgment Date | 04 January 2010 |
| Neutral Citation | [2010] EWHC 5 (Admin) |
| Docket Number | Case No: CO/7261/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 January 2010 |
[2010] EWHC 5 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Mr John Howell QC
Sitting As A Deputy High Court Judge
Case No: CO/7261/2007
Mr Michael Paget (instructed by Harding Swinburne Jackson & Co) for the Claimants
Mr Sam Grodzinski (instructed by Olswang) for the Defendant
Hearing date: November 30 th 2009
Further written submissions on December 1 st, December 3 rd, December 14 th and December 18 th 2009
Mr John Howell QC:
INTRODUCTION
The Claimants, Anthony and Elaine McIntyre, are the assured tenants of a dwelling at 6 Hollywood Avenue, Marley Potts, Sunderland (“the property”). Their claim for judicial review impugns the decision taken in April 2007 by their then landlord, North Sunderland Housing Company Limited (“NSHC”), to refuse its consent for them to exchange homes with another of that company's assured tenants. Subsequently, in May 2007, NSHC gave them its consent to that exchange but only on the condition that Mr McIntyre first paid what he owed under a court order obtained by Sunderland City Council in 1998.That order related to rent which had not been paid by Mr McIntyre in respect of another dwelling that by 2007 was also owned by NSHC. In effect this claim seeks judicial review of that subsequent decision.
The Defendant, Gentoo Group Limited, is a not-for-profit company limited by guarantee. It is a registered social landlord. It used to be known as Sunderland Housing Company Limited (“SHCL”). It is the parent company of a group which includes NSHC as a one of its subsidiaries. NSHC is also a registered social landlord. In July 2007 the ownership of the property was assigned by NSHC to Gentoo Sunderland Limited. That company, which is another subsidiary of the Defendant, is also a registered social landlord. It is that company which filed an acknowledgement of service in relation to this claim. No point is taken about the identification of Gentoo Group Limited as the Defendant.
The Claimants were granted permission to make this claim by Cranston J following a hearing on April 23 rd 2008.
This claim requires consideration of the some of the implications of the decisions of the Divisional Court and of the Court of Appeal, in R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin) and [2009] EWCA Civ 587, that decisions of a registered social landlord taken in the discharge of its function of managing and allocating social housing are amenable to judicial review on “conventional public law grounds”. It raises the questions (i) whether a decision about a condition upon which permission is given by such a landlord to an exchange by its tenants of their homes is amenable to judicial review and, if it is, (ii) what are the consequences, substantively and procedurally, of the application of public law to a decision by a registered social landlord whether or not (and, if so, how) to exercise its contractual rights.
On behalf of the Claimants Mr Michael Paget contended that NSHC's decision, to give the Claimants consent to the exchange proposed only on the basis that all Mr McIntyre's historic and unenforceable rent arrears in respect of another tenancy had to be paid first, is one amenable to judicial review; that it was a decision which no reasonable person could have taken in the circumstances; and that NSHC simply applied a blanket policy without considering the Claimants' circumstances.
On behalf of the Defendant Mr Sam Grodzinski contended that NSHC's decision was not one amenable to judicial review. But, even if it was in principle amenable to judicial review, he submitted that this claim for judicial review should be dismissed in any event as the Claimants had and have alternative remedies available to them to resolve any dispute about it. He further contended that the decision impugned was not unreasonable. Finally he submitted that the complaint, that NSHC simply applied a policy and refused to consider the Claimants' circumstances, is a complaint which should not be entertained as it was not raised in the Claimants' grounds and was thus not one to which the Defendant has had an opportunity to adduce evidence in reply. He also submitted that that complaint has no factual basis.
THE FACTUAL BACKGROUND
The property was originally let to the Claimants jointly on a secure tenancy in May 1984 by Sunderland City Council. Apart from a period in 1996 in which they separated, the Claimants have lived together at the property since then.
In 1996, when separated from his wife, Mr McIntyre lived at another property, 78 Rockingham Road, Redhouse, as the tenant of the City Council. Whilst living there he fell into arrears with his rent. As a result the City Council obtained a judgment from Sunderland County Court against him on April 15 th 1998 for £597.80 plus £133.75 in respect of costs.
The City Council made a number of attempts to execute that order. A warrant for execution was first issued in July 1998 and was subsequently re-issued five times. Various unsuccessful attempts were made by the County Court's bailiff to obtain entry to the property and a number of letters addressed to Mr McIntyre at the property were returned to the City Council marked “gone away”, despite the fact (as stated in the Amended Statement of Facts and Grounds) that he has lived there since leaving Rockingham Road in December 1996. Mr McIntyre has never been paid any of the amounts that he was ordered to pay by the Sunderland County Court.
On March 26 th 2001 both the property and 78 Rockingham Road, as well as over 36,000 other dwellings and certain other premises, were sold by the City Council to SHCL.
That stock transfer brought the Claimants' secure tenancy of the property to an end. Instead, in its place, the Claimants were granted an assured, non-shorthold weekly tenancy by SHCL to begin on March 27 th 2001.
The Claimants' assured tenancy agreement expressly provided inter alia that:
“You must not assign all or part of the property without prior written permission of [SHCL].”
But it also made specific provision for “mutual exchanges”. It stated that:
“You have the right to exchange your home with another tenant, providing you meet certain conditions. Please refer to the Tenants' Handbook for further details of the right to exchange and the circumstances in which it applies.”
The Tenants' Handbook stated that a tenant had a right to exchange his home with another tenant
“providing you both meet certain conditions including:
• You both have your local Housing Company's written consent.
• You make sure that neither of you is in breach of any of your tenancy conditions or obligations. You must also comply with any reasonable condition attached to your local Housing Company consent relating to the payment of outstanding rent, the remedying of any breach or performing any obligation of the tenancy agreement.
• The exchange does not result in any property either becoming overcrowded or under occupied.”
The Tenants' Handbook also provided that a tenant could also “exchange with another tenant of any local Housing Company in Sunderland Housing Group, Local Authority or Registered Social Landlord throughout the country providing consent is granted”. It further indicated that the local Housing Company's permission for an exchange might be withheld but
“Your local Housing Company will not unreasonably withhold permission. It will not withhold permission on any grounds except those in Schedule 2 to the Housing Act 1988.”
Clause 9.1 of the Agreement for the Transfer of Housing Stock between the City Council and SHCL provided that:
“All arrears of rent due as at the Completion Date from existing and former tenants of the Property [which included all the freehold and leasehold property the subject of the housing stock transfer]….(the “Arrears”)…together with all rights to recover the same shall be assigned by the Council to [SHCL]”.
Subsequently, in a Deed of Assignment of Rent and Service Charge Arrears and Overpayments dated December 21 st 2001, the City Council assigned to SHCL
“1.1 all the Council's right and remedies for recovery of and interest in the Arrears brief details of which are set out in the Annex hereto; and
1.2 (so far as the Council is able) the benefit of any….orders for possession and money judgments obtained by the Council against Former Tenants and/or other occupiers of the premises comprised in the Property.”
Guidelines issued by what was then the Department of the Environment provided at that time that no more than 12,000 properties should be held by a registered social landlord. Accordingly the stock transferred to SHCL was transferred to five of its subsidiaries according to their geographical location. Thus, on July 31 st 2001, the ownership of a number of premises, including both the property and 78 Rockingham Road, was transferred by SHCL to NSHC (who thus became the Claimants' landlord).
It is agreed that whatever rights SHCL had against Mr McIntyre in respect of the arrears of rent at 78 Rockingham Road and the order of the Sunderland County Court as a result of the transactions referred to above were also vested in NSHC.
On April 3 rd 2007 the Claimants applied for consent to enable them to exchange tenancies with an individual who was another tenant of that company in Corinthian Square.
NSHC replied in a letter dated April 5 th 2007 stating that consent...
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