A less than perfect fit

Earlier this year, the Court of Appeal gave its decision in the case of Bracknell Forest Council versus Green and Green.

Mr Harry Green lived with his sister in a semi-detached three bedroom house. In 1958, it was let to their father who moved in with his wife and their daughter.

Their son was born later that year and he succeeded to the tenancy on the death of his mother in April 2005 (his father having died in 1969). Mr Green had lived at the property throughout his life.

On 27 February 2005 the council served a notice on Mr Green seeking possession on ground 16 of Schedule 2 of the 1985 Housing Act.
The council was of the opinion that Mr Green and his sister were under-occupying the property and wanted to move them to alternative accommodation. Mr Green and his sister did not want to move.

The decision
The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include the age of the
tenant and the amount of time that the tenant has occupied the dwelling as his only principle home.

It’s important to note that the specified mandatory matters for reasonableness do not include the availability of suitable alternative accommodation.

The court concluded that although suitable alternative accommodation was available, in the circumstances of this case that was outweighed by the length of time Mr Green had occupied the property, his personal and family circumstances, his age and ‘the permanently destabilising affect of a possession order on him’.

The court acknowledged that the council was in a difficult position, taking into consideration the general housing shortage and the fact that there was no doubt that the property concerned was under-occupied.

The court said that the terms of the 1985 act expressly contemplate cases in which the tenant’s personal circumstances might outweigh the pressures on public housing and other factors.

The implications
This decision illustrates the difficulties faced by social landlords when attempting to obtain possession on the basis of suitable alternative accommodation. The decision in this case reinforces that it will not be sufficient simply to satisfy the court that suitable alternative accommodation is available. The court must take into consideration the personal circumstances of the tenant and these circumstances are likely to, in practice, override everything else.

This decision is to the effect that a tenant’s individual personal circumstances are more important than the circumstances of someone on the waiting list.

robert.wassall@bllaw.co.uk

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