High Court upholds Council’s enforcement policy on private sector landlords
On 6 March 2019 the Administrative Court gave judgment in R (Humber Landlords Association) v Hull City Council  EWHC 332 (Admin).
The judgment is of practical importance to all public authorities engaged in the drafting or revision of policies. It serves as a stark reminder of the court’s central role in interpreting the policy and, in turn, the primacy of the policy itself. Claimants relying less on the words of the policy and more on individual council officers’ summaries of it are unlikely to advance their cases very far.
The claimant, a local private landlords association, sought judicial review of Hull City Council’s decision to revise its Private Sector Housing Enforcement Policy. The policy specifies the action to be taken in relation to the assessment and enforcement of housing standards in the private rental sector under Part 1 of the Housing Act 2004 (“HA 2004”).
The challenge concerned those aspects of the policy relating to so-called “Category 2” property hazards. Section 7 HA 2004 gives councils broad discretion to combat such hazards by taking formal action against landlords. Potential action includes the serving of an improvement or hazard awareness notice or the making of a demolition order or slum clearance declaration.
The outgoing policy provided for the Council to take informal rather than formal action against the landlord unless one or more given circumstances justifying formal action applied. The outgoing policy also provided for the Council to enjoy a residual discretion to determine the appropriate response based on the facts of the particular case.
The revised policy took a tougher line, providing for formal action as the preferred response unless the Category 2 hazard was insignificant or the landlord was a member of the Council’s accreditation scheme. The Council adopted the revised policy following a Report to Cabinet that summarised its central features. The reasons for the revision included the recent introduction of the Deregulation Act 2015 and its provisions to combat retaliatory evictions against tenants who complain about the state of their homes.
Challenging the Council’s policy shift, the claimant argued that the revised policy required the Council to take formal action unless one of the two exceptions mentioned above (insignificant hazard; landlord accreditation) applied. The claimant argued that the Council had therefore misused its powers under Part 1 HA 2004, fettered its discretion to take informal action, failed to take sufficient account of relevant statutory guidance, given overwhelming and therefore unlawful weight to the merely hypothetical risk of retaliatory evictions without conducting a proper analysis of the matter, given unlawful weight to its own accreditation scheme and acted irrationality. The claimant drew partial support for its reading of the revised policy from the summaries of it that were contained in both the Report to Cabinet and the Council’s witness evidence at the hearing.
The Council argued that the claimant had overlooked the nuances of the revised policy, in particular that it retained the Council’s residual discretion to take whatever action it deemed appropriate to the particular case. The revised policy simply altered the Council’s starting point from informal to formal action. There were no concrete rules as to how the Council should act.
Sitting as a High Court judge, HHJ Klein comprehensively dismissed the claim.
Policy interpretation was a matter for the court (para 31). How individual Council officers interpreted the revised policy was “no guide to the proper interpretation of that policy” (para 34). Properly construed, the revised policy provided for formal action as the normal response to Category 2 hazards but informal action remained an option if the Council so decided “having regard to all the circumstances of the case” (para 33(ii)).
There was therefore no fettering of discretion. The Council had moreover used its powers for the proper purpose of improving housing stock in the area (paras 47-48), was entitled to attach weight to landlords’ membership of its accreditation scheme (para 49), had taken proper account of relevant statutory guidance (paras 50-52) and had not given irrational weight to any relevant factors (paras 55-58).