Judicial Review 2, Part three

Lambeth council breached a tenant’s human rights when it decided to demolish his home and remove his right to buy, the high court heard.

Claimant Andy Plant, who has lived in Cressingham Gardens for 20 years and hopes to buy his council home in the future, was told he would lose his right to buy along with his secure tenancy.

The local authority made a ‘legally wrong’ statement that if secure tenants wanted to live in the replacement estate, it would not be possible to include this option under the new assured tenancy.

At the same time, the council misinformed secure tenants that the new agreements would be ‘matched as closely as possible’ to the current statutory contract, which carries a number of protected rights, it is said.

In considering the right to buy in the context of the European Convention on Human Rights (ECHR), David Wolfe QC, representing Mr Plant, argued its loss constituted a breach of the claimant’s right to property under Article 1, Protocol 1 of the ECHR.

A decision having that effect, needs to satisfy the ‘requirements of proportionality’, said Mr Wolfe, referring to caselaw (Bank Mellat v HM Treasury) which requires consideration of a number of matters.

These are:

• Whether the objective of the measure is sufficiently important to justify the limitation of a protected right
• Whether the measure is rationally connected to the objective
• Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective
• Whether the impact of the rights infringement is disproportionate to the likely benefit of the [disputed] measure

Mr Wolfe told the court that the consultation and decision-making did not consider the issue as per the legal requirements.

The barrister said consultation documents were ‘legally wrong’, in that they claimed that the right could not be retained under an assured tenancy, when a contractual option to buy could be made available, but this was not even considered.

The court heard how a regeneration consultancy called Local Dialogue, which ran the consultation with the council, stated in a document called ‘Key Guarantees for Tenants’, ‘The Council proposes to match your current tenancies as closely as possible in order to provide security of tenure.

‘You should note that the right to buy is not available under assured tenancies.’

In his written legal argument, Mr Wolfe said, ‘It was correct that the lifetime assured tenancy would not carry with it the statutory right to buy.

‘But that was not the end of the matter, because it would have been (and would be now) entirely open to the council to create an equivalent contractual option to buy (even if, contrary to what Mr Plant would really like, it presses on with regeneration) with the assured tenancy, or as a protected right under a stock transfer to a housing association.

‘But there was no mention of that in the report to the cabinet.’

The barrister said that the point is also given weight by government policy, which was confirmed by the Department of Communities and Local Government (DCLG) in a letter to a Cressingham resident.

The DCLG stated, ‘It is important that new council tenants should have access to the Right to Buy and that new homes should not be built by councils which are excluded from the Right to Buy… The Government believes that local authorities should support people to achieve their aspiration for home ownership through the Right to Buy.’

The Government has also pledged to extend the scheme to housing associations, and is currently trialling a system in which replacement homes would be built, before a planned national roll-out.

James Goudie, QC, defending Lambeth, claimed that the right was not being lost, because tenants can opt to move to a council home elsewhere in the borough if they wish to retain their secure tenancies.

‘At most, there’s an interference with the right,’ said the barrister, adding, ‘but it’s a limited interference and not an outright removal of the right.’

He added that under the present circumstances, ‘interference is in the public interest’, particularly as there is only one tenant’s account weighing against what the council claims to be the greater ‘public good’.

The council proposes to spend £110 million on the redevelopment project, which involves transferring the existing homes to a private company to be called ‘Homes for Lambeth’, demolishing the existing 306 homes and building an extra 148 flats.

The council has said that Homes for Lambeth would aim to let 27 of the additional properties at council rent levels, with most of the additional homes to be let or sold at market prices.

The resident-led alternative ‘People’s Plan’ would require £10.9 million of investment, and add up to 37 extra homes at council rent levels.

Mr Goudie argued that the matter should be settled on a case-by-case basis via county court possession proceedings, adding, ‘I would not be able to say there wasn’t an issue with another resident, just because Mr Plant had not succeeded.’

The barrister went on to claim that the matter was ‘covered in the consultation’, but admitted, ‘not thoroughly’ adding that Local Dialogue’s account of assured tenancies on this issue, was ‘a little terse’.

Nonetheless, he claimed, ‘there’s nothing amiss.’

Referring to Mr Goudie’s written legal argument, Mr Justice David Holgate said, ‘You’re saying it doesn’t constitute a deprivation of a possession’, because what the council is doing is underwritten as ‘part of the package agreed between the parties’, meaning the terms and conditions of the secure tenancy agreement.

The court heard the statute lists demolition as a justification for repossession and by terminating the secure tenancy, the ‘council was exercising a right’ – meaning that when Mr Plant signed the contract, he submitted to this potential outcome.

Further summarising the barrister’s point, the judge said that the ‘right to buy going is a statutory consequence’ of demolition.

Mr Goudie continued, ‘And, the claimant can’t argue that while it’s compliant with UK law, ‘My A1 P1 right is triggered.’

‘It goes, because the foundation has departed,’ he added.

‘To that extent, it’s a precarious right.

‘It’s secure, subject to the grounds of possession.’

He went on to emphasise that ‘even if’ the convention right is triggered by the current circumstances, ‘any deprivation would be proportionate to the public interest’.

Moving on to Mr Wolfe’s point that the council ‘failed to consider less intrusive options’, Mr Goudie said, ‘Our submission is, the test isn’t whether a less intrusive option has been considered, but whether the intrusion is in the public interest.

‘In our submission, [consideration of a less intrusive option is] not a relevant test in the present context.’

The judge asked, ‘How do you get to that?’

‘My lord,’ replied Mr Goudie, ‘That here, the possibility of a less intrusive measure doesn’t arise, on the facts.’

‘You seem to be saying, it’s not part of the law we’re supposed to apply?,’ remarked the judge.

Mr Goudie said he accepted that a less intrusive measure was a ‘consideration’, but insisted, ‘It’s relevant, but not decisive.’

Regarding government policy on the right to buy, the judge said, ‘The argument made against you is, the authority didn’t take it into account.’

Mr Goudie said, ‘If some agreement was being set up to circumvent right to buy, then that could be unlawful, not less for being for an improper purpose.

‘But right to buy loss – as an incidental consequence of the loss of the secure tenancy – doesn’t come anywhere near that.

‘It’s a means of accessing private funds for public good, and it’s collateral damage, in the sense it’s an incidental outcome that the right to buy would be lost as a consequence.’

In reply, Mr Wolfe argued that the item of ‘property’ in question, was not ‘simply the right to buy’, with the tenancy being ‘prescient to that’, as Mr Goudie had set out.

Instead, the ‘tenancy is a piece of property, and the right to buy is part of that’, adding that ‘what’s in play here, is a secure tenancy’.

Mr Wolfe added that the question is ‘appropriately dealt with’ in the present judicial review proceedings, rather than as advocated by the defence, in the county court.

This is because, a ‘specific question’ is being posed about the way the council dealt with the rights interference, and triggered by the demolition option.

The judge said, ‘What do you say to the point that it’s not just offering an assured tenancy, it’s offering a secure tenancy elsewhere?’

‘We say, it’s not appropriate to shoot that down the track to the county court,’ replied Mr Wolfe. ‘It’s a scheme question.’

He added that Mr Goudie ‘makes much of the public interest of the redevelopment’, but Mr Wolfe argued that there needed to be analysis of the ‘counter-balancing public interest’ of the ‘the less intrusive option’.

‘Why not adopt the less intrusive option?’ he said.

‘Nothing has been said about why that would be a bad idea, not least because the council doesn’t consider it.’

The judge said, ‘I suppose they’d say it’s the impact on the HRA [Housing Revenue Account], but then, that comes back to the government policy.’

Earlier, Mr Goudie made separate submissions on the point of ‘delay’, in which he claimed that the case should be thrown out because it was allegedly not brought promptly.

With the support of a local councillor Scott Ainslie, residents ‘called in’ the March decision for review by the council’s Overview and Scrutiny Committee (OSC), and waited until after the committee decision on May 10, before making the high court claim.

This was because it was open to the OSC to refer the decision back to cabinet (which it did not do), and the court was very likely to have refused permission for the judicial review if this alternative remedy had not first been pursued.

Judicial review claimants have three months from a decision to launch a challenge, which was complied with, but there is a further requirement to lodge them ‘promptly’.

Mr Goudie suggested the claim should have been put in earlier and as a result of the delay, progress on the regeneration was put back by several weeks.

Mr Wolfe said the court had been provided with ‘no evidence at all’ about what difference it made, and the court heard that various circumstances, such as the dearth of judges hearing cases over the summer, meant that in the end there was only three weeks lost.

If time was so much of the essence, it would have been open to Lambeth to expedite the scrutiny hearing by bringing the date forward, added Mr Wolfe.

Earlier, the judge also flagged a possible argument, that the cabinet decision was ‘cured’ by the eventual OSC decision not to refer back, in that it potentially indicated what cabinet would decide if it were now forced by the court to reconsider.

Mr Wolfe said, ‘The point is, the OSC looked at it on the same basis.’

The judge suggested, ‘If they repeat the same mistakes, they’re not curing it.’

He added, ‘If we were being told the council dealt with all the points afresh [via the OSC], that would have been a completely different case.’

Mr Wolfe said, ‘The appropriate result is a proper, fair consultation and you should quash the decision.’

‘They say the decision would be the same,’ said the judge.

Mr Wolfe said that if courts took as read defendants’ claims that their decisions would be the same, ‘no consultation challenge would ever proceed’.

The judge said he was reserving judgement and added, ‘I’m aware of the urgency of the matter and the need to avoid continuing uncertainty.

‘I’ll deal with it as quickly as I can.

‘There’ll be a hand down in the usual way.’

In summary, Lambeth denies four grounds, that: The council erroneously included £7.5m income which would have otherwise for each of the options resulted in its own preferred demolition option failing its own ‘must achieve criteria’; Misled its own cabinet members as to ‘The People’s Plan’ and/or the members failed conscientiously to take into account key aspects of this consultation response; Failed to provide up-to-date data relating to the HRA finances to either the consultees or the Cabinet members, such that they were (respectively) not properly able to comment on or take into account the data; and Breached Mr Plant’s right to property under Article 1, Protocol 1 of the European Convention on Human Rights, combined with his right to respect for a home, by removing his existing ‘Right to Buy’, contrary to current government policy.

The case was heard between November 15 and 17 and the judge has reserved judgement, which is expected to be handed down within weeks.