The case of Holley v London Borough of Hillingdon [2016] saw the Hillingdon London Borough Council's (the LA) challenge the refusal to allow a second succession to a property by Mr Holley (H) pursuant to section 87 of the Housing Act 1985.
H had lived in the three bedroomed property in question for nearly all of his life. The property could sleep six people but the only people occupying it were H and his brother. H also suffered from a range of mental health problems.
A first succession had taken place when H's grandmother died and his grandfather had succeeded to the tenancy of the property. The LA's policy allowed for one succession although there was an exception for potential successors who were vulnerable. However, H did not satisfy the criteria under the policy as he was too young.
At the possession hearing, the Court, having determined as a preliminary issue that H had no arguable defence under Article 8 of the European Convention of Human Rights, made a possession order. Although H had lived in the property nearly all of his life and had mental health difficulties, the Judge concluded he was constrained by the decision of Thurrock Borough Council v West [2012] ECWA Civ1435 which had held that the length of a person's residence in their home was irrelevant.
H appealed arguing that:
- the Judge had wrongly concluded that in considering a second succession, the length of occupation could never be a relevant factor;
- the LA's second succession policy was unlawful because it did not permit the exercise of any residual discretion and even if it did, the LA had failed to give proper consideration to such discretion.
The Court of Appeal upheld the decision to make the possession order and held that the period of residence, however long, would not on its own be sufficient to found an Article 8 proportionality defence in a second succession context. However, the length of residence may form part of an overall proportionality assessment but this was not likely to be a weighty factor given that Parliament had specifically excluded second successions to family members.
In considering the lawfulness of the LA's allocation policy, the Court of Appeal held that there was a form of residual discretion which addressed exceptional circumstances of applicants for housing. However, given the evidence that the LA produced of an acute shortage of housing within its borough, H's own position came nowhere near qualifying for the exceptional allocation of a three bedroom house.
