Re-allocating housing stock

Housing iStock 000010695703Small 146x219The Court of Appeal has given guidance on possession orders requiring suitable alternative accommodation to be provided. Jack Parker reports.

In Holt v Reading BC [2013] EWCA Civ 641, the Court of Appeal has given general guidance on possession orders made on a discretionary ground which are conditional on the provision of suitable
alternative accommodation.

The defendant was a secure tenant who had succeeded to the tenancy. The property was a three-bedroom house and the defendant was a single woman. The Council brought possession proceedings on ground 16 of schedule 2 to the 1985 Act, which provides that the court may order possession in respect of certain statutory successors if the accommodation is more extensive than is reasonably required by the tenant. The Court must also be satisfied that suitable alternative accommodation will be available for the tenant.

It was accepted by the defendant that the accommodation was more extensive than was reasonably required. The County Court judge found that it would be reasonable to make a possession order and sought to ensure that suitable alternative accommodation would be available by making the order conditional: the order would only take effect once the Council had made a binding offer to the defendant of a secure tenancy of a one-bedroom property with bike storage within 1.5 miles of the current property [34].

The defendant appealed to the Court of Appeal on a number of grounds. Her appeal on reasonableness was dismissed. The Court also found that the provision in the Order for suitable alternative accommodation was lawful.

Of particular interest is the guidance given by Kitchin LJ which may, depending on the circumstances, apply to all possession orders made under Part III of Sch. 2 requiring the provision of suitable alternative accommodation (although it should be noted Ground 16 has been replaced by a new Ground 15A in respect of England. Ground 16 continues to apply in Wales):

  1. The Court cannot make an order for possession unless it is satisfied that suitable accommodation will be available when the order is to take effect [51];
  2. There is no requirement either that an offer of accommodation has been made before the date of the hearing or that the accommodation is available at that date [52];
  3. Whether such accommodation is available is a matter of evidence [53];
  4. The court does not have to be satisfied that these requirements are fulfilled by reference to a specific
property. If the court is satisfied that accommodation having particular characteristics would be reasonably suitable to meet the tenant’s needs and that such accommodation will become available then the court may make an order which only takes effect when accommodation has in fact become available [54];
  5. It is not necessarily appropriate to make a conditional order and the court should consider with great care whether justice would better be served by adjourning the final determination of the application until a particular property has been identified. Relevant circumstances in this regard may include the burden of bringing the matter back to court, perhaps as a result of the tenant's vulnerability or personal circumstances and whether the tenant is legally represented.
  6. A conditional order should include (1) specific liberty to the defendant to apply to court; and (2) a time limit within which the local authority must make the suitable accommodation available, and a provision that if it fails to do so the order will lapse.
  7. It may be appropriate to include in the conditional order a direction that the authority must apply to the court for permission to issue a warrant.

This judgment provides useful guidance to local authorities looking to re-allocate their housing stock and gives them considerable leeway in respect of the provision of suitable alternative accommodation, provided that certain requirements are fulfilled.

Jack Parker is a barrister at Cornerstone Barristers.