McCann v Birmingham City Council

This is an application for judicial review of two decisions of Birmingham City Council (“the Council”) in connection with the occupation by Mr Gerrard McCann of a local authority dwelling at 9 Anstey Grove, Acocks Green, Birmingham (“No 9”). The first (taken as long ago as 4 January 2002) is the decision to procure from Mrs McCann, the claimant’s wife, a notice to quit after she had been re-housed following complaint of domestic violence. The second is a decision of 11 June 2002 to issue possession proceedings in relation to No 9 and not to offer Mr McCann alternative accommodation. Two other decisions both in May 2004, to enforce an order of possession made by the Court of Appeal and subsequently to reject representations to reconsider the decision to enforce the order were not pursued. These were the only original basis of the claim because of concerns relating to delay, but after McCombe J both gave leave to amend the claim form and granted permission in relation to all grounds (thereby removing the difficulties in relation to delay), it was agreed if Mr McCann succeeded on either or both of the first two, the second two were unnecessary and, if he did not, there was no real remaining basis for success.

As will be apparent, the broad dispute between the parties has already given rise to substantial litigation (ending only after the House of Lords dismissed a petition brought by Mr McCann for leave to appeal the adverse decision of the Court of Appeal). The courts have previously considered a wealth of evidence from both sides yet it is important to make clear from the outset that, save for two Council policy documents and a three page file note, initially, I saw none of it. Towards the end of the hearing, I was provided with a transcript of the evidence of two witnesses touching one aspect of the case. No witness statement in my papers is directed to these proceedings (the only statement being that of Mr McCann prepared in unsuccessful County Court proceedings for an injunction seeking to restrain the Council from executing the possession order). Thus, the facts have been derived essentially from the judgment of His Honour Judge Durman in the original County Court possession proceedings and the judgment of the Court of Appeal given by Mummery LJ in the conjoined appeals Bradney v Birmingham City Council, Birmingham City Council v McCann [2003] EWCA Civ 1783 (“the possession appeal”). I expressed my concern about the extent to which I was being required to rely on second hand analysis of evidence I had not seen. In the event, I have had to make the best of what has been placed before me. It is to a summary of the facts (in somewhat greater detail than Mummery LJ felt it necessary to provide) that I now turn.

On 27July 1998, the Council let No 9 to Mr McCann and his wife, Wendy, jointly. They lived there with their two children. Early in 2001 the marriage broke down. Mrs McCann alleged that she was the victim of her husband’s domestic violence and moved out to live with her mother although at some stage she moved back, living at No 9 from time to time. On 5 April 2001, she obtained both a non-molestation injunction and an ouster order in relation to No 9; it is important to underline that this order followed a contested hearing albeit that Mr McCann was not then represented.

On 18 April, Mrs McCann submitted a homeless application setting out her case to be re-housed on the grounds of domestic violence. That referred to the injunctions and also alleged that Mr McCann had attacked her and a friend on the 14 April. The incident had led to Mr McCann’s arrest and bail also on terms that he kept away from No 9. That condition was apparently removed in November 2001 and he was ultimately acquitted (in 2002) when Mrs McCann retracted her statement and there was apparently no evidence to support the prosecution; the background and reasoning behind that decision is unexplained.

On 24 May 2001, Mr McCann was interviewed by the Council. All I know about that meeting is that he acknowledged that he could not then return to No 9 (because of the injunction and bail conditions) but said that he was not willing to give up the tenancy although he did say that furniture was being removed.

On 8 August 2001, Mrs McCann moved out of No 9 and returned the keys to the Council with a note saying that she was giving up the tenancy. She was re-housed by the Council on the grounds of domestic violence. Thereafter, the Council inspected No 9 and discovered that many fittings had been removed so that in excess of £15,000 would be required to make it habitable; as far as it was concerned, from that time the premises were empty.

In fact, in November 2001, Mr McCann returned to No 9, initially staying from time to time; he renovated it (as I apprehend would have been his responsibility in any event). Having three bedrooms and intended for family occupation, however, it was clearly too large for Mr McCann on his own notwithstanding that he was having visiting contact with his children and, by application received by the Council on 4 January 2002 he applied to effect an exchange of property with another Council tenant. I know nothing of what Mr McCann knew of what had gone on but he was clearly back on reasonable terms with Mrs McCann (who had, of course returned the keys to No 9 presumably intended to cease to have any liability for the property); her handwriting appears on the application document.

On 4 January 2002, the relevant Council official, Mr Christopher Allen, interviewed Mr McCann. He explained that Mrs McCann had returned the keys, ended the tenancy, that the proposed exchange would not be considered and that he would be treated as a lodger in occupation. Nevertheless, Mr Allen realised that his understanding that the property was void and not occupied did not appear to be correct and so he took legal advice. Thereafter, on the same day, Mr Allen visited Mrs McCann and sought and obtained from her a notice to quit; from his cross examination at the County Court, it is clear that he did so because it was explained to him “as a formalisation process of the fact that Mrs McCann had ceased the tenancy”. It was not suggested that there was any discussion about the effect of the document and Judge Durman found that “[Mrs McCann] had no idea about the effect on [Mr Mc Cann’s] occupation of No 9 her signing of the document would have”. Nevertheless, the judge went on to hold that, although she did not understand the effect of signing document on his occupation of the premises, it was a valid notice to quit by one joint tenant and it brought the joint tenancy to an end. Mrs McCann later made attempts to retract or cancel the notice (saying that she considered it “selfish … to stop his chances of settling”): these attempts were ineffective.

It is common ground that the notice to quit signed by Mrs McCann was valid and operated to bring the joint tenancy to an end irrespective of the wishes of the other joint tenant, Mr McCann. Thus, the Council continued to maintain that he was a lodger in occupation and served the relevant notices upon him. On 11June 2002, the matter came to be considered by an Allocations Officer Review Panel. The Report to the Panel annexed copies of the notice to quit and the non molestation and ouster orders from the County Court. It explained that when Mrs McCann was re-housed, her children (aged 13 and 8) moved with her but that an informal arrangement for access meant that the children visited three days a week (with alternate weekends) and averaged three nights a week at No 9. It went on that although Mr McCann had made an application to undertake a direct exchange of property with another tenant and he did not need three bedrooms, he now wished to remain at No 9; it recommended that possession of No 9 be sought but that Mr McCann be offered suitable alternative accommodation. That recommendation was not accepted by the Panel on the basis of the Council’s policy in relation to domestic violence. A note of the grounds of the decision is expressed in these terms:

“There is a non molestation order which proves domestic violence. City Council policy on domestic violence denies the perpetrator the rights to accede to the late tenancy.

The property is also under occupied. Under the City policy on lodgers in occupation, Mr McCann would not qualify for the tenancy. As he has no dependants living with him [No 9] is a family dwelling and he does not qualify for the dwelling which was originally allocated as a qualifying family which has now been re-housed and there is no further housing need for Mr McCann to remain at the dwelling.”

Thus, on 11 October 2002, possession proceedings were commenced. On 15 April 2003, Judge Durman observed in his judgment that both parties had agreed that he could deal with the matter rather than adjourn the application for Mr McCann to make an application for judicial review. He went on to find that Mr McCann was not entitled under domestic law to any right of occupation but nevertheless dismissed the claim on the basis that he was not satisfied that grounds existed for the interference with Mr McCann’s right to his home under Article 8 of the European Convention on Human Rights. The learned Judge did not seek to define the consequent relationship between the Council and Mr McCann.

On 9 December 2003, the Council successfully appealed, the Court of Appeal making it clear that Article 8 was not available as a defence to the possession proceedings. Giving the judgment of the Court (Lord Phillips of Worth Matravers MR, Mummery and Tuckey LJJ), Mummery LJ said (at paragraph 28):

“The Council acted lawfully and within its powers in obtaining the notice to quit, which had the effect of terminating the secure tenancy. There was no dispute that the tenancy had been brought to an end by Mrs McCann’s notice to quit. Under ordinary domestic law the Council had an unqualified right to immediate possession on proof that the tenancy of the premises had been brought to an end. The statutory procedure in s 82 of the 1985 Act, which is available to the local authority landlord for terminating a secure tenancy, does not apply to a case where the secure tenancy has been terminated by the tenant's notice to quit. That notice to quit was effective, even though the notice was signed without appreciating the consequences for the occupier of the premises.”

After Mr McCann’s petition for leave to appeal to the House of Lords had been rejected, the Council applied for a warrant for possession; a pre-action letter was written to which there was a swift response. On 25 June 2004, in the civil proceedings, Pitchers J refused an application for an injunction to stay the execution of the warrant. On the same day these proceedings were issued whereupon Beatson J granted interim relief pending determination of the application for permission which, as I have related, McCombe J granted.

Upon analysis and expanding the broad recitation of the claim set out at the beginning of this judgment, the challenge now mounted by Mr Stephen Cottle (on behalf of Mr McCann) can be dealt with under three headings. First, he argues that the Council was not entitled under the law or its policy to seek to sidestep Mr McCann’s right to possession of No 9 by seeking a Notice to Quit from Mrs McCann (which would deprive Mr McCann of his interest in the property) rather than taking proceedings to obtain possession in accordance with Part 4 of the Housing Act 1985 (“the Law and Policy”). Secondly, it is said that even if the Council was entitled to go to Mrs McCann, the decision of 4 January 2002 to do so was flawed because it was taken without considering all material facts (including the Mr McCann’s Article 8 rights) and without ensuring that Mrs McCann considered the position on an informed basis (“Obtaining the Notice to Quit”). Thirdly, Mr Cottle also challenges as taken without proper consideration of the Convention rights of Mrs McCann and her children the decision of the Council dated 11 June 2002 not to offer Mr McCann alternative accommodation and to issue possession proceedings (“Enforcing the Notice to Quit”). Mr Underwood Q.C. takes issue with each proposition.

Mr Cottle analysed in some detail the provisions of sections 21, 79 and 82-85 of the Housing Act 1985 in relation to the proper approach of local authorities, tenant’s security of tenure and the circumstances in which the court may order possession if it considers it reasonable and in accordance with Schedule 2 of the Act. In particular, he referred to Ground 2A which was inserted by section 144-6 of the Housing Act 1996 to permit possession to be ordered if the dwelling is occupied by a couple living as man and wife (whether one or both of the partners is a tenant) and one partner has left, being unlikely to return, because of violence or threats of violence towards the partner or a member of the family residing with that partner. He submits that it is only through this mechanism that the Council can evict because of domestic violence and that to persuade the leaving joint tenant to give notice to quit, thereby terminating the right of the remaining joint tenant to remain (as is the effect of such a notice: see Hammersmith and Fulham London Borough Council v. Monk [1992] 1 All ER 1 approving Greenwich London Borough Council v. McGrady (1982) 46 P & CR 223) is an unlawful device designed to circumvent the need to institute proceedings. This is described in paragraph 3(c) of the Grounds as the illegality point.

I can deal with this argument quite shortly because I do not accept that the existence of a statutory mechanism to obtain possession on the grounds of domestic violence by a tenant (whether held as a sole tenancy or a joint tenancy with the partner) of itself renders unlawful other methods of achieving the same result. It is not at all surprising that in London Borough of Newham v. Kibata [2003] EWCA Civ 1785, which concerned a sole tenant who gave notice to quit in order to be re-housed following allegations of domestic violence, it was common ground that statutory provisions affecting that council’s rights to recover possession ceased to apply when the tenancy was terminated on the expiration of the notice to quit including (see para. 21):

“[his] matrimonial home rights in the flat under sections 30, 31 and 33 of the Family Law Act 1996, his statutory protection, even as a non-tenant, in respect of the secure tenancy of the flat under s 30(4)(b) of the same Act; his security of tenure under the provisions of sections 82, 83A, 84 and Schedule 2 of the 1985 Act; and the provisions of s 145 of the Housing Act governing the right of the Council to recover possession in case of domestic violence by the insertion of Ground 2 in Schedule 2 of the 1985 Act.”

There may be circumstances in which the only possible route will be proceedings for possession. If the partner of a sole tenant of council accommodation seeks re-housing on the grounds of domestic violence such that the council can demonstrate that she is unlikely to return, there is no step which that partner can take to bring the tenancy to an end. Where, however, notice to quit can be given, there is no justification for requiring a different mechanism to be used aimed at the same result, namely to bring the tenancy to an end, particularly as the statutory route is likely to be lengthy, cumbersome and expensive (potentially involving a dispute between the parties as to the issue of domestic violence) all the while when the allegedly abused partner has had to be re-housed on the basis of the allegations which have been made and the perceived risk to safety. In Kibata, the policy of the council was that a client should only be allowed to hold one tenancy at a time so that a new one should not be granted until the previous one has been terminated: there was no suggestion that such a policy (even for joint tenants) was unlawful.

In the alternative, Mr Cottle submits that the council did not act within the terms of its own policy on domestic violence (ground 3(b): the ultra vires point). That policy can be derived from its Domestic Violence Policy and its Allocations Policy Manual. The former, under the heading “Tenancy Related Issues” makes it clear (at 3.7.1):

“Domestic Violence is included in the Department’s revised Conditions of Tenancy as a breach of the Tenancy agreement. Action will be taken [against those] who have been found to have subjected another person to domestic violence. This could include perpetrators losing their home or being classed as intentionally homeless.”

The Allocations Policy deals with terminating joint tenancies generally and provides (at paragraph 30.8):

“1.

Where a relationship has broken down the tenant who is leaving the property must be asked to sign a relinquishing form. This has the effect of closing the ‘whole’ tenancy.

2.

If the property remains suitable for the family left, the tenancy [ie. a new tenancy] can be granted.

3.

If the property is not suitable (eg too large), the tenant should be offered alternative accommodation…”

Assuming that the breakdown of the relationship is not the consequence of domestic violence, paragraph 31.2.1 makes it clear that if there is agreement and the party with the children remains in the premises (albeit with a new tenancy) the other, who is relinquishing the tenancy, will be offered alternative accommodation. The policy goes on to deal with domestic violence in these terms:

“In cases of suspected or alleged domestic violence the client’s word must be accepted regardless of whether the client is a tenant lodger or owner occupier. Sensitive investigations must take place with ‘benefit of doubt’ given to the client.”

There is no mention of an offer of alternative accommodation. Thus, if domestic violence is suspected or alleged, although the abused partner will be re-housed (or granted a new tenancy), there is no such obligation in relation to the person alleged to have been violent.

The rationale is that the Council is required to take allegations of domestic violence seriously and could be criticised if it failed to re-house a partner claiming to have been abused. If it does, either that family unit will now have two properties as a consequence of an allegation of domestic violence (when all local authority housing is a scarce resource much sought after) or the alleged abuser will be dispossessed. He (assuming for the purposes of argument that we are talking about the male) can then claim to have been made unintentionally homeless on the grounds that he has not been responsible for any domestic violence. If the contrary is not established (and in any event he has a right of appeal to the County Court), he will have a right to appropriate re-housing. Thus, argues Mr Underwood, the dispossessed tenant does have safeguards and a right to challenge the assumption of responsibility for domestic violence; it is better to err on the side of believing the alleged abused partner on the basis that the person against whom the allegation is made has a right to be heard enforceable in court. The way he put it is that the court will be jealous to guard against unintentional homelessness but will not be jealous of a right to occupy a particular home.

Mr Cottle argues that the policy is to recover possession against perpetrators of domestic violence, such conduct also being a breach of the terms of the tenancy and that this policy reflects the changes introduced by ground 2A of Schedule 2 of the Housing Act 1985 which I have described in paragraph 14 above. Thus, by construing it to mean that instead of using the Housing Act route, the Council can seek a notice to quit from the leaving partner, is to act outside its own policy.

Again, I do not agree. The Council’s Domestic Violence policy makes it quite clear that action will be taken against those who have been found to have subjected another to domestic violence without identifying any limit upon that action. On the basis that the relationship has broken down (which it is not difficult to infer if a partner, especially accompanied by children, seeks re-housing by the Council because of domestic violence) 30.8.1 requires the party leaving to sign a relinquishing form (ie in the case of a tenant or joint tenant, a notice to quit) so as to bring the tenancy to an end whereupon re-housing on one or more new tenancies falls to be considered. To suggest that the only way in which the domestic violence policy can be enforced is to seek possession in the County Court is to make the same error of interpretation as is made in relation to the legislation itself. The policy does not require the Council to adopt a different procedure more favourable to the person suspected of domestic violence than to the person left in the tenancy after the consensual breakdown of the relationship; the fact that it is shorter and simpler is neither here nor there. Further, that such a person may have a right to be re-housed which is lost reflects the policy that any perpetrator of domestic violence may be considered to have become intentionally homeless if, as a result, the tenancy is terminated and an application is made for a new tenancy.

I am reinforced in this conclusion by the observation of Mummery LJ when giving the judgment of the Court of Appeal and making an order for possession in the earlier proceedings in this case. He said that the statutory procedure in section 82 of the 1985 Act did not apply to a case where the secure tenancy had been terminated by the tenant's notice to quit. He thereby recognised that there was nothing inappropriate, as a matter of law, in proceeding as the council did. Whether, as a matter of public law, it was entitled to go behind Mr McCann’s application for a transfer and obtain a notice to quit from Mrs McCann in the way in which it did is the next matter that calls for consideration.

Mr Cottle argues that in dealing with Mrs McCann as it did (and, in particular, on 4 January 2002, by securing from her a signature on a notice to quit notwithstanding that she had already been re-housed and Mr McCann had already applied to exchange his property with that of another tenant) the Council acted in bad faith and unlawfully. It was not entitled to obtain her signature without ensuring that she was fully aware of the consequences of what she was doing, that is to say that, as a result, Mr McCann would lose the security of tenure necessary to effect the exchange of property to which she had just agreed. Further, it utterly ignored the rights of Mr McCann, Mrs McCann and the McCann children under Article 8 of the European Convention; obtaining the notice to quit directly affected Mr McCann’s right to respect for his home and also impacted on the rights of his children who stayed with him and thus the rights of Mrs McCann herself for she had an interest in her children staying with Mr McCann.

Mr Underwood took issue with each aspect of this submission. First, he submitted that obtaining the notice to quit was doing no more than formalising what had been the position from August when Mrs McCann had given up the property; this was entirely in keeping with the policy which required a signed notice to quit from the tenant (described as a relinquishing form). Secondly, the Council were under no duty to provide advice to Mrs McCann or to warn her that a consequence of signing the notice to quit would be to deprive Mr McCann of the right to the property exchange that she had just supported. He argued that Mr Cottle’s submissions had all been placed before the Court of Appeal (save in relation to her rights and those of the McCann children but this aspect took the matter no further) and were rejected; this conclusion was either part of the ratio of the case and so binding or alternatively clearly demonstrated the view of the Court of Appeal on this part of this case and so should be followed. In that regard, he submitted that a proper analysis of the decision of the House of Lords in Harrow London Borough Council v. Qazi [2003] UKHL 43, [2003] 3 WLR 792 led to an identical conclusion.

It is important first to identify the facts before me. There is no doubt that by August 2001, Mrs McCann had left No 9 with the children and no suggestion that she or they had ever moved back in; she returned the keys and obtained a new tenancy. The only evidence that I have seen is that Mr McCann moved back into No 9 in November or December 2001 (at a time when the Council considered that it was void and required some £15,000 spending on it to replace plumbing and kitchen units) and that when Mr Allen spoke to Mrs McCann on 4 January 2002, she said that there had been an agreement that she and Mr McCann would have shared access to her children. I am not in a position to say whether there was any question, at that stage, of the children having a home with Mr McCann; clearly Mrs McCann’s new home was not affected. It is equally clear that the Council did not advise her of the effect of signing the document or seek to reach a decision which gave weight to any Article 8 rights.

To determine the legality of this approach, it is necessary to analyse the law in a little detail. Thus, there is no doubt that Qazi (supra), Kibata (supra) and the possession proceedings, together with the allied case of Bradney all concerned the extent to which it was possible to defeat an order for possession by reference to Article 8 rights. It is clear that it is not. The cases, however, went much further. Thus, in Kibata the sole tenant had been the wife who, when she complained of her husband’s domestic violence (which was disputed), was required to sign a notice to quit as a condition of being re-housed. By so doing, as outlined in paragraph 15 above, although not a tenant, Mr Kibata lost a bundle of rights to what was his ‘home’ within Article 8 without being given notice of any sort; the judge concluded that the council’s policy “effectively deprived [the wife] of any other option”. Counsel on his behalf complained that the council had acted with procedural impropriety in causing or encouraging or procuring the service of a notice to quit as a device for avoiding the statutory safeguards available to Mr Kibata; it had unlawfully interfered with his rights without making proper enquiries and without regard for his statutory rights to the flat or other options and without putting to him relevant matters before deciding to evict him; it had failed as a public authority to exercise properly its discretion on the range of options open to it for dealing with the housing situation.

These complaints received short shrift from the Court of Appeal. Mummery LJ said (at paragraph 30):

“I agree that the Council could have acted differently. From the point of view of Mr Kibata, the Council could have acted with more concern for his situation. Its conduct did not, however, involve a breach of any of the Council’s public law duties or give Mr Kibata a defence to a claim for a possession order in the county court. The Council has acted in accordance with the law, both in respect of the formulation and application of its domestic violence policy and in respect of its part in the decision of the wife to exercise her right to terminate the tenancy. It was not unlawful for the Council to act on the basis of credible information supplied to it by the wife. The Council was under no duty, before deciding whether to issue possession proceedings, to make, or to await, a judicial determination as to the truth of the allegations made by the wife against Mr Kibata. Once the tenancy had been lawfully terminated by the wife, the Council acted in accordance with the law. It simply relied on the effective termination of the tenancy and on the consequent termination of his statutory matrimonial home rights and his Housing Act rights and sought to recover possession of the Flat by due process of law. ” [my emphasis]

He added (at paragraph 36) that the service of the notice was not procured “in an unlawful unfair or underhand sense, nor was it a ‘device’ in the sense of an inappropriate procedure improperly employed”. In agreeing, Holman J observed (at paragraph 54) that he did not think that any Article 8 rights were capable of arising but that, if they were, the only avenue was judicial review.

I have set out these complaints in some detail because of the extent to which they mirror the present allegations albeit that the rights available to Mr McCann were also based in contract (as a joint tenant of No 9) as well as statute. In Bradney, however, the two partners were joint tenants (albeit that the joint tenancy was only arranged after the breakdown and split up). In that case, Miss Bromwell who had moved to live with her mother, wished to bring her personal liability under the tenancy to an end while specifically safeguarding the position of Mr Bradney as a tenant. At the request of the Council (also Birmingham City Council), she signed a notice to quit without there being any suggestion that she was told that the effect of such a notice would be to bring to an end Mr Bradney’s right to remain in possession; in other words, she did not understand that it would have the reverse effect of what she had intended.

Mummery LJ made it clear (as was common ground) that the notice to quit was effective and that there was nothing to prevent or inhibit the council from then acting on the basis that the tenancy was effectively terminated. He went on (at paragraph 15):

“As a matter of public law, there have been no judicial review proceedings challenging the lawfulness of any of the actions of the Council. We are unable to see anything in its obtaining of the valid notice to quit from Miss Bromwell and acting on it which was outside the powers of the Council or an abuse of its power.”

Mr Cottle suggests that I should not read these sentences as meaning that improper conduct is not a ground for judicial review. In my view, the only way to read them is that Mummery LJ was recording the fact that there had been no application for judicial review going on, furthermore, to reject the submission that there was a basis for such action.

With that, I come to the decision of the Court of Appeal in this case. Mr Underwood has submitted that the Court was directly concerned with the arguments presently being advanced by Mr Cottle. Thus, Mr Cottle’s skeleton argument (revised after Qazi) submitted that the council had acted outside its powers by deciding in order to recover possession against Mr McCann to seek a notice to quit from Mrs McCann and that, if he had been aware of the facts, it would have been open to Mr McCann to seek an injunction restraining the council from so doing. Further, Mr Underwood’s own skeleton dealt with the issue because the council were conscious that if no consideration was given to these aspects of the case, further litigation would follow. He pointed out that Judge Durman had specifically observed that he could deal with the matter rather than adjourn for an application to be made for judicial review and tells me that he was acutely aware of the possibility that the Court of Appeal could, if it thought fit, take that course.

That brings me to the observations of the Court set out in paragraph 11 above to the effect that the council “acted lawfully and within its powers in obtaining the notice to quit, which had the effect of terminating the secure tenancy”. Mr Cottle submitted that Mummery LJ could not have had in mind public law arguments or the considerations which the Council had to bear in mind before deciding whether to ask Mrs McCann to sign a notice to quit (including Article 8) but I am afraid that I simply do not agree with his analysis. Mr Cottle had put the way in which the Council had behaved at the forefront of his argument: it is, in my view, inconceivable, that the Court of Appeal would have expressed itself as it did had it intended to leave that issue open in this case, particularly given that Article 8 had been at the forefront of a number of submissions to the Court not only in the course of arguing the case itself but also in Kibata and Bradney. Whether necessary for the decision or not, it is, in my judgment, an integral part of it and I consider it wrong not to follow it.

As to the Council’s alleged impropriety, Bradney is the clearest authority for the proposition that the fact that the tenant giving notice to quit does not appreciate its effect does not give rise to a right to challenge the notice. That case was stronger than this because Mr Bradney only became a joint tenant after the partners had split up and their clear intention was to arrange matters so that he could assume the tenancy; it is not clear that she ever sought a different tenancy herself. Here, even though it is not suggested that returning the keys in August operated in law as a surrender or a notice, it is manifest that Mrs McCann was seeking to divest herself of all responsibility for No 9 from that time; both she and the Council proceeded on that basis and she was re-housed with the children. In the circumstances, I accept Mr Underwood’s submission that in obtaining the notice to quit, the Council were seeking no more than to formalise the position and to bring Mrs McCann’s contractual relationships with the Council into line with their policy of requiring relinquishment after breakdown of the relationship. When later seeking to help Mr McCann, the highest Mrs McCann put it was she thought that she was being selfish in not supporting his attempt to exchange tenancies; she was not seeking to suggest that she had not intended to end her responsibility for the premises.

In the circumstances, it is unnecessary for me to embark (as did Mummery LJ) on an analysis of Qazi. Neither do I think that it would be helpful either for this case or for any other for me to add my gloss on that decision or its effect. It is sufficient merely for me to say that nothing in that case causes me to doubt the interpretation that I have put on the Court of Appeal decisions to which I have referred.

I can deal with the third limb of Mr Cottle’s submissions quite shortly. In the light of Qazi and having decided that there is no basis for challenging the general policy of the Council in relation to domestic violence, or the decision to obtain a notice to quit from Mrs McCann, it is difficult to see on what basis the decision of 11 June 2002 can be challenged. By this time, the Council were aware of the extent to which the McCann children used No 9 but if Article 8 does not defeat proprietary or contractual rights to possession as against Mr McCann, it is not possible to see how it can defeat such rights simply because his children exercise staying contact with him.

Mr Cottle focussed argument on the failure of the Council to give effect to the recommendation in the report to the Allocations Officer Review Panel and, in particular, the recommendation of an offer of suitable alternative accommodation. It is not for me to say whether it would have been appropriate for the Council to exercise its discretion in favour of Mr McCann notwithstanding their policy because of the way in which he had been deprived (albeit lawfully) of what would otherwise have been his right to an exchange property; suffice to say that I cannot possibly conclude that the decision to apply the policy where domestic violence had been established by the existence of a non-molestation injunction and ouster order is either unlawful or outside the range of decisions properly open to the Council in all the circumstances. This challenge, in my judgment, is simply another way of revisiting the underlying criticisms of the conduct of the Council in the preceding January.

I agree with Mr Underwood that the Court of Appeal effectively decided the relevant issues between Mr McCann and the Council and that this application is an attempt to resurrect them a second time. The Council is entitled to possession and this application for judicial review fails.

Having said that, however, I would not want it to be thought that I am entirely without sympathy for Mr McCann. This is not because he was unable to capitalise on a failure of the Council to ensure that Mrs McCann relinquished the tenancy by signing a notice to quit when she returned the keys but rather because he devoted time and energy to refurbishing No 9 (whether or not he might have been liable to reimburse the Council when they did so) which he would not have done had he appreciated the effect of the policy and what might happen.

As for the generality, whether or not a decision can be challenged as a matter of law does not mean that it is not appropriate for a public authority to be as open as it can be. There is no reason why the Council’s policy should not be absolutely explicit, spelling out that the consequence of an application for re-housing will be a requirement to give notice to quit of the existing tenancy which will affect the rights of the remaining tenant or occupier and thereafter providing notice to that person. In that way, clarity will prevail and some of the concerns that have been expressed in this case avoided.