Social Housing Speed Read – judicial review

Case bulletin – R (On the application of Aslamie) v London & Quadrant Housing Trust (2016)

Background

Secure tenants have a statutory right, with the consent of their landlord, to exchange their tenancies in certain circumstances pursuant to section 92 of the Housing Act 1985.

Whilst the landlord’s consent must be obtained prior to any exchange, such consent may only be withheld on one or more of the grounds set out in schedule 3 Housing Act 1985.

Whilst it is common practice for Housing Associations to offer their tenants a similar (contractual) right to exchange, assured tenants have no express statutory right to do so.

Similarly, the landlord is not required to comply with any statutory grounds for refusing consent although the tenancy agreement itself will usually set out the circumstances, which are typically modelled on section 3 grounds, whereby consent may be refused.

Any such right to exchange therefore is governed by the tenancy agreement or a separate exchange policy referred to therein.

In the case of R (On the application of Aslamie) v London & Quadrant Housing Trust (2016), details of the claimant’s tenancy are, as yet, unknown and the specifics should hopefully be provided in due course. On the basis of the information currently available, however, it seems that the tenant is likely to be an assured tenant of the Defendant housing trust.

The facts

The Administrative Court has dealt with an application for permission to apply for judicial review of the Defendant’s refusal to provide its consent to the exchange of tenancies between the Claimant and another tenant.

The Defendant housing trust withheld its consent to an exchange of tenancies on the basis that the Claimant did not require a two-bedroomed property, and further asserted that the claim was hypothetical as the Claimant had indicated that he intended to exchange with another tenant (“T”).

The Claimant produced a witness statement signed by T alleging that the Claimant and his friend had visited him and that he had felt pressured by them to exchange. Further, T’s witness statement outlined that he had explained to the Claimant and his friend that he did not want to exchange.

A witness statement was served on the Claimant’s behalf by his friend who counter-raised the issue of the housing trust placing undue pressure on T who was old and easily pressured. Further, she suggested that the housing trust had been unethical in getting him to sign his witness statement.

On the day of the hearing, however, T stated, by fax, that his witness statement was incorrect and that he had been visited only by the Claimant, not the Claimant and his friend as previously stated.

The Defendant asked the court to disregard the point of undue pressure and to determine the application for permission to apply for judicial review.

The decision

The application could not be determined where it had been suggested that the housing trust had placed undue pressure on the tenant and where there was evidence that a mistake had been made in a witness statement.

It was held that one possible interpretation of the fax was that it was consistent with the housing trust placing pressure on the tenant. The Court was concerned that the allegation of bad faith had been raised though considered it may be an irrelevant issue to the point of law to be determined.

There was insufficient evidence on the issue of undue pressure and so the matter was adjourned so that further evidence could be obtained.

What can we learn from this?

This case serves as reminder of the need to protect your organisation from allegations of undue pressure being placed upon tenants as witnesses, particularly those that are vulnerable.

Housing managers regularly need to investigate, interview and take statements from tenants in support of management decisions or legal action.

It is imperative that steps are put in place to ensure that witnesses provide information and evidence freely, accurately, with full understanding of what it will be used for, and the implications of providing evidence they know, or reasonably ought to know, is untrue.

If you have any questions on this decision and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.