Leicester City Council – v – Shearer  EWCA Civ 1467, 19th November 2013
This is not a Traveller case but is an important reminder that a judicial review challenge can be successful even in cases involving trespassers. The facts were quite complicated but, to simplify them somewhat, Mrs Shearer ended up living in the property that had been the tenancy of her husband. Her husband had committed suicide.
Her husband had already succeeded to the tenancy and a second succession in terms of council tenancies of houses and flats is not possible. However, the Council had a policy for direct letting of specific properties in certain circumstances. Nevertheless, from the outset, the Council made it clear to Mrs Shearer that she would not be able to obtain the tenancy of the property she was living in. The Council requested further information from Mrs Shearer but she did not supply that information since the Council had made it clear they would not consider a direct let and she only wanted to remain in the property she was in.
Lord Justice Jackson, giving the leading judgment and upholding the lower court’s decision to dismiss the possession action, stated:-
The facts of the present case, however, are exceptional. In the desperate situation in which the defendant found herself in 2011 she had a respectable case for receiving the benefit of a direct let under…..the Allocations Policy. The Council officials to whom she spoke did not tell her this. Indeed they told her precisely the opposite.
A public authority cannot rely upon an applicant’s non-compliance with procedural requirements, when the authority itself has caused that non-compliance.
An additional feature of the present case is that the Council was well aware of the defendant’s circumstances. It already knew all of the matters of which it was requesting formal proof (identity of the applicant, details of the children and current address). This is a case in which the Council wrongly allowed form to prevail over substance….
Mr Carter [Counsel for the Council] has addressed to us an ingenious argument to the effect that the exchange of emails does not record or evidence a decision against making a direct let to the defendant. He points out that one department at the Council was dealing with possession proceedings, whereas another department would be responsible for deciding whether to make a direct let. The Housing Services Department had decided to ‘regain possession of 35 Martival from Mrs Shearer’….that decision did not, however, preclude the possibility of the Housing Options Department making a direct let to the defendant. I do not accept that argument. It would be absurd for one department of the Council to obtain a court order evicting the Defendant from 35 Martival and then for another department of the Council to grant her a tenancy of the same property.