McIntyre & Anor, R (on the application of) v Gentoo Group Ltd [2010] EWHC 5 (Admin)

[2010] EWHC 5 (Admin)Case No CO/7261/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: January 4 th 2010
Before
MR JOHN HOWELL QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimantson the application ofClaimantANTHONY McINTYREClaimantELAINE McINTYREClaimantGENTOO GROUP LIMITEDDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Michael Paget (instructed by Harding Swinburne Jackson & Co) for ClaimantsMr Sam Grodzinski (instructed by Olswang) for DefendantHearing Hearing date: November 30 th 2009Further written submissions on December 1 st, December 3 rd, December 14 th and December 18 th 2009
Judgment

Mr John Howell QC:

[1]The Claimants, Anthony and Elaine McIntyre, are the assured tenants of a dwelling at 6 Hollywood Avenue, Marley Potts, Sunderland (“the property”). Their claim for judicial review impugns the decision taken in April 2007 by their then landlord, North Sunderland Housing Company Limited (“NSHC”), to refuse its consent for them to exchange homes with another of that company’s assured tenants. Subsequently, in May 2007, NSHC gave them its consent to that exchange but only on the condition that Mr McIntyre first paid what he owed under a court order obtained by Sunderland City Council in 1998.That order related to rent which had not been paid by Mr McIntyre in respect of another dwelling that by 2007 was also owned by NSHC. In effect this claim seeks judicial review of that subsequent decision.[2]The Defendant, Gentoo Group Limited, is a not-for-profit company limited by guarantee. It is a registered social landlord. It used to be known as Sunderland Housing Company Limited (“SHCL”). It is the parent company of a group which includes NSHC as a one of its subsidiaries. NSHC is also a registered social landlord. In July 2007 the ownership of the property was assigned by NSHC to Gentoo Sunderland Limited. That company, which is another subsidiary of the Defendant, is also a registered social landlord. It is that company which filed an acknowledgement of service in relation to this claim. No point is taken about the identification of Gentoo Group Limited as the Defendant.[3]The Claimants were granted permission to make this claim by Cranston J following a hearing on April 23rd 2008.[4]This claim requires consideration of the some of the implications of the decisions of the Divisional Court and of the Court of Appeal, in R (Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin) and [2009] EWCA Civ 587, that decisions of a registered social landlord taken in the discharge of its function of managing and allocating social housing are amenable to judicial review on “conventional public law grounds”. It raises the questions(i) whether a decision about a condition upon which permission is given by such a landlord to an exchange by its tenants of their homes is amenable to judicial review and, if it is,(ii) what are the consequences, substantively and procedurally, of the application of public law to a decision by a registered social landlord whether or not (and, if so, how) to exercise its contractual rights.[5]On behalf of the Claimants Mr Michael Paget contended that NSHC’s decision, to give the Claimants consent to the exchange proposed only on the basis that all Mr McIntyre’s historic and unenforceable rent arrears in respect of another tenancy had to be paid first, is one amenable to judicial review; that it was a decision which no reasonable person could have taken in the circumstances; and that NSHC simply applied a blanket policy without considering the Claimants’ circumstances.[6]On behalf of the Defendant Mr Sam Grodzinski contended that NSHC’s decision was not one amenable to judicial review. But, even if it was in principle amenable to judicial review, he submitted that this claim for judicial review should be dismissed in any event as the Claimants had and have alternative remedies available to them to resolve any dispute about it. He further contended that the decision impugned was not unreasonable. Finally he submitted that the complaint, that NSHC simply applied a policy and refused to consider the Claimants’ circumstances, is a complaint which should not be entertained as it was not raised in the Claimants’ grounds and was thus not one to which the Defendant has had an opportunity to adduce evidence in reply. He also submitted that that complaint has no factual basis.

THE FACTUAL BACKGROUND

[7]The property was originally let to the Claimants jointly on a secure tenancy in May 1984 by Sunderland City Council. Apart from a period in 1996 in which they separated, the Claimants have lived together at the property since then.[8]In 1996, when separated from his wife, Mr McIntyre lived at another property, 78 Rockingham Road, Redhouse, as the tenant of the City Council. Whilst living there he fell into arrears with his rent. As a result the City Council obtained a judgment from Sunderland County Court against him on April 15th 1998 for £597.80 plus £133.75 in respect of costs.[9]The City Council made a number of attempts to execute that order. A warrant for execution was first issued in July 1998 and was subsequently re-issued five times. Various unsuccessful attempts were made by the County Court’s bailiff to obtain entry to the property and a number of letters addressed to Mr McIntyre at the property were returned to the City Council marked “gone away”, despite the fact (as stated in the Amended Statement of Facts and Grounds) that he has lived there since leaving Rockingham Road in December 1996. Mr McIntyre has never been paid any of the amounts that he was ordered to pay by the Sunderland County Court.[10]On March 26th 2001 both the property and 78 Rockingham Road, as well as over 36,000 other dwellings and certain other premises, were sold by the City Council to SHCL.[11]That stock transfer brought the Claimants’ secure tenancy of the property to an end. Instead, in its place, the Claimants were granted an assured, non-shorthold weekly tenancy by SHCL to begin on March 27th 2001.[12]The Claimants’ assured tenancy agreement expressly provided inter alia that:
“You must not assign all or part of the property without prior written permission of [SHCL].”
But it also made specific provision for “mutual exchanges”. It stated that:
“You have the right to exchange your home with another tenant, providing you meet certain conditions. Please refer to the Tenants’ Handbook for further details of the right to exchange and the circumstances in which it applies.”
[13]The Tenants’ Handbook stated that a tenant had a right to exchange his home with another tenant “providing you both meet certain conditions including: ▪ You both have your local Housing Company’s written consent. ▪ You make sure that neither of you is in breach of any of your tenancy conditions or obligations. You must also comply with any reasonable condition attached to your local Housing Company consent relating to the payment of outstanding rent, the remedying of any breach or performing any obligation of the tenancy agreement. ▪ The exchange does not result in any property either becoming overcrowded or under occupied.” The Tenants’ Handbook also provided that a tenant could also “exchange with another tenant of any local Housing Company in Sunderland Housing Group, Local Authority or Registered Social Landlord throughout the country providing consent is granted”. It further indicated that the local Housing Company’s permission for an exchange might be withheld but “Your local Housing Company will not unreasonably withhold permission. It will not withhold permission on any grounds except those in Schedule 2 to the Housing Act 1988.” ▪ The exchange does not result in any property either becoming overcrowded or under occupied.”[14]Clause 9.1 of the Agreement for the Transfer of Housing Stock between the City Council and SHCL provided that:
“All arrears of rent due as at the Completion Date from existing and former tenants of the Property [which included all the freehold and leasehold property the subject of the housing stock transfer]....(the “Arrears”)...together with all rights to recover the same shall be assigned by the Council to [SHCL]”
. Subsequently, in a Deed of Assignment of Rent and Service Charge Arrears and Overpayments dated December 21st 2001, the City Council assigned to SHCL “1.1 all the Council’s right and remedies for recovery of and interest in the Arrears brief details of which are set out in the Annex hereto; and 1.2 (so far as the Council is able) the benefit of any....orders for possession and money judgments obtained by the Council against Former Tenants and/or other occupiers of the premises comprised in the Property.”[15]Guidelines issued by what was then the Department of the Environment provided at that time that no more than 12,000 properties should be held by a registered social landlord. Accordingly the stock transferred to SHCL was transferred to five of its subsidiaries according to their geographical location. Thus, on July 31st 2001, the ownership of a number of premises, including both the property and 78 Rockingham Road, was transferred by SHCL to NSHC (who thus became the Claimants’ landlord).[16]It is agreed that whatever rights SHCL had against Mr McIntyre in respect of the arrears of rent at 78 Rockingham Road and the order of the Sunderland County Court as a result of the transactions referred to above were also vested in NSHC.[17]On April 3rd 2007 the Claimants applied for consent to enable them to exchange tenancies with an individual who was another tenant of that company in Corinthian Square.[18]NSHC replied in a letter dated April 5th 2007 stating that consent was refused as there were rent arrears and court costs outstanding in respect of 78 Rockingham Road.[19]It appears that the Claimants’ solicitors subsequently had a telephone conversation with NSHC in which an offer was made that, if consent was granted, Mr McIntyre would pay the amount outstanding by instalments. They also wrote to NSHC asking it to reconsider its decision contending that it was unreasonable to withhold consent to an exchange based on an irrecoverable debt; that it meant punishing Mrs McIntyre for a matter not of her own making; and that a strict policy of refusing an exchange on the basis of historical rent arrears was prima facie unreasonable.[20]In response, in a letter dated May 17th 2007, NSHC stated that its consent was not being withheld but that it was conditional on Mr McIntyre clearing the Former Tenant Rent Arrears owed to the Sunderland Housing Group before any move; that it was entirely reasonable to require him to pay monies which were outstanding before permitting him to exchange; and that, given the Group’s historic dealings with him with respect to the arrears, the offer to pay by instalments after the exchange was not acceptable.

WHETHER NSHC’S DECISION IS AMENABLE TO JUDICIAL REVIEW

[21]In R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 the Court of Appeal considered whether a decision by a registered social landlord to terminate a tenancy of social housing was one required to be taken compatibly with Convention rights and whether it was also amenable to judicial review on conventional public law grounds. It was common ground in that case that a registered social landlord was a person some of whose functions were functions of a public nature. The Court of Appeal held by a majority (Elias and Lawrence Collins LJJ, Rix LJ dissenting) that the decision by a registered social landlord to serve a notice to quit on one of its assured tenants occupying social housing was an act which would be unlawful under section 6 of the Human Rights Act 1998 if it was incompatible with Convention rights as it was an act done in the discharge of its public function of managing and allocating social housing and accordingly that the nature of the act was not “private” the purpose of subsection (5) of that section. The majority in the Court of Appeal also accepted as correct the concession made by counsel for the Housing Trust that, if the act was one to which section 6 of the 1998 Act applied, it was also one also governed by public law and thus susceptible of judicial review on conventional public law grounds (as the Divisional Court had held): see eg per Elias LJ at [5] and [83].[22]On behalf of the Defendant Mr Grodzinski reserved the right to contend that Weaver was wrongly decided if this claim falls to considered hereafter by the Court of Appeal and Supreme Court; that it does not follow from a finding that a decision of a registered social landlord must comply with Convention rights that it is also a decision governed by public law and amenable to judicial review; and that in any event the position of NSHC is distinguishable from that of the London & Quadrant Housing Trust.[23]At this stage, however, Mr Grodzinski sought to distinguish Weaver, and to contend that the decision in this case was not one governed by public law and amenable to judicial review, on three main grounds. These were(i) that a decision to refuse consent to the mutual exchange of a tenancy does not result in the individuals who may be concerned becoming homeless which a decision to terminate a tenancy may do;(ii) that assignment of a secure tenancy by way of exchange falls outside the cases governed by Part VI of the Housing Act 1996 dealing with the allocation of housing accommodation; and(iii) that registered social landlords are not obliged by any enactment to deal with applications for mutual exchange on any particular basis, unlike local housing authorities who must deal with applications for such exchanges in accordance with section 92 of the Housing Act 1985.[24]Each of these three points is correct. But they do not serve, either individually or collectively, to distinguish this case from Weaver. Whether an exchange of social housing should be permitted involves a decision to be taken in the discharge of what the majority in the Court of Appeal regarded as the public function of managing and allocating social housing. This is not merely because (as the Tenants’ Handbook in this case recognises) such an exchange may result in a property becoming overcrowded or under-occupied. It may also involve questions about how best to meet not only the need for social housing of those tenants wishing to exchange and their families but also the need of others for it. Like a decision to terminate a tenancy, in some cases it may also engage an individual’s right to respect for his or her private and family life.[25]Thus the fact that registered social landlords may have greater freedom than local housing authorities have in responding to applications for mutual exchange does not mean that such applications do not require them to take decisions in the discharge of what the Court of Appeal regarded as their public function of managing and allocating social housing. Nor did the majority of the Court of Appeal intend to limit that function to the doing of those things that are governed in the case of a local housing authority by Part VI of the Housing Act 1996 which regulates the allocation of housing by such an authority. Indeed a decision to terminate a tenancy by a local housing authority is not governed by those provisions: see section 159(2) of the 1996 Act. The fact that such a decision may result in an individual becoming homeless was not the basis for regarding that decision in Weaver as not constituting an act of a private nature. The decision was so regarded because it was one taken in the discharge of what the Court of Appeal regarded as a registered social landlord’s public function of managing and allocating social housing. That explains why it also was considered susceptible to a claim for judicial review. Such a claim is one to review the lawfulness inter alia of “a decision, action or failure to act in relation to the exercise of a public function”: see CPR Part 54 rule 54.1(2)(a)(ii).[26]Mr Grodzinski had a further argument why NSHC’s decision in this case was not amenable to judicial review. The condition it imposed, he submitted, was no more or less than a requirement to comply expressly with a condition set out in the Claimants’ assured tenancy as a condition which might be imposed on a consent to a mutual exchange. Although NSHC had a choice whether or not to impose that condition, its decision to do so had no public law element. It was merely the exercise of an existing contractual right. It simply involved the application of a condition relating to the payment of outstanding rent which was specifically envisaged in the Tenants’ Handbook. Mr Grodzinski’s submission assumes that the condition imposed fell within that description, an assumption which I do not accept for reasons which I shall explain. But, even if that assumption had been well founded, NSHC was not obliged to impose that condition. It had a discretion whether or not to do so, a discretion which fell to be exercised as part of its function of managing and allocating social housing. Indeed it is the Defendant’s case that imposing the condition which NSHC did in this case (and others like it in other cases) was a reasonable and proportionate way of managing such social housing. What makes public law applicable is that the decision was one taken in relation to the exercise of a public function. There is no additional requirement that the specific decision impugned has itself to have some other and further “public law element” (whatever that might mean and involve).[27]In my judgment, therefore, the decision in Weaver is directly applicable. The declaration granted by the Divisional Court in that case, that the defendant was amenable to judicial review on conventional public law grounds in respect of decisions taken in the performance of its function of managing and allocating its housing stock (or perhaps more accurately, as the majority of the Court of Appeal thought, its stock of social housing), applies not merely to decisions concerning the termination of a tenancy of social housing but also to those concerned with the mutual exchange of such tenancies.

THE RELATIONSHIP BETWEEN PRIVATE AND PUBLIC LAW

[28]Underlying some of Mr Grodzinski’s specific submissions on the amenability of the decision in this case to judicial review on “conventional public law grounds” is an assumption that public law makes no difference when considering the lawfulness of an exercise of a contractual right, particularly one that must be exercised reasonably.[29]The fact that a right may have been exercised in accordance with the terms of a contract that confers it does not necessarily mean that the decision to exercise that right is one that may not be invalid as a matter of public law. Before tenants of local housing authorities were given statutory security of tenure, for example, the Court of Appeal held that the validity of such an authority’s decision to serve a notice to quit could be impugned on the ground of unreasonableness: see Cannock Chase DC v Kelly [1978] 1 WLR 1 per Megaw LJ at p6, per Lawton LJ at p9-10. Similarly a registered social landlord’s decision to serve a notice to quit on an assured tenant of social housing may also be impugned on conventional public law grounds in accordance with the decision in Weaver. Thus, even if the exercise of a contractual right may be unfettered as a matter of private law, that does not mean that the decision to exercise it may not be impugned in public law, for example on Wednesbury grounds.[30]Mr Grodzinski’s general approach may have more apparent plausibility in the case of contractual rights which may only be exercised reasonably or not unreasonably or to impose reasonable conditions or obligations. But, even if the requirements and consequences of public and private law were identical in such cases, it would not mean that the only law applicable was private law. What it would mean is that there would be much to be said for refusing permission for, or relief in, claims for judicial review by any other party to the contract as there would be an alternative remedy available to them in other proceedings. Judicial review is not a procedure to be used to provide a party to a contract with a better remedy for a breach of contract than contract law itself provides: see Hampshire County Council v Supportways Community Services Ltd [2006] EWCA Civ 1035 per Dyson LJ at [42] and per Mummery LJ at [61].[31]In the case of contractual rights which may only be exercised reasonably or not unreasonably or to impose reasonable conditions or obligations, however, there are at least four main areas where the requirements and consequences of public and private law may diverge (disregarding for present purposes any additional requirement to act fairly or to give effect to a legitimate expectation that public law may impose). i) First there may be a difference in what matters fall to be assessed as reasonable or unreasonable. Thus public law may affect the process by which a decision is reached to exercise such a right (including the considerations taken into account and the purpose for which the right may be exercised) as well as requiring the result not to be objectively unreasonable. In private law by contrast the objective reasonableness of what is done may be the only relevant matter. In other cases the reasons why that result was in fact chosen may also be material. There is, therefore, no necessary identity in what matters falls to be assessed as reasonable or unreasonable in public and private law. ii) Secondly the perspective from which the reasonableness or unreasonableness of what is done falls to be assessed may be markedly different. Normally the functions which are vested in a public authority, and the rights which it may acquire in discharging them, fall to be exercised in the public interest for the purpose for which the function was conferred having regard to the consequences of their exercise for others. The reasonableness of their exercise does not normally fall to be assessed purely by reference to the interests of the public authority itself since functions are not normally vested in such a body for its own benefit. By contrast the reasonableness of the exercise of some rights in private law may fall to be assessed simply by reference to the particular legitimate interests of the person having that right. In such a case a right might be exercised reasonably (or not unreasonably) as a matter of private law but unreasonably as a matter of public law. iii) Thirdly the onus of proof and the standard of reasonableness to be deployed in resolving any dispute about the exercise of the right may vary. In public law, for example, the onus is on a claimant to show that a public authority’s decision was one no reasonable person could have made in the circumstances. In private law the onus may instead be on the person exercising a right to show that what he has done is reasonable. iv) Finally the persons who may be able to challenge the reasonableness of what is done may be different. In public law anyone with a sufficient interest may do so. In private law it is normally only another party to the contract who may do. In this case, for example, the person with whom the Claimants wished to exchange tenancies might have challenged NSHC’s decision to grant the Claimants a conditional consent to that exchange if that decision was unlawful in public law even though as a matter of private law that person may not have been able to do so.[32]Ultimately the extent to which there may be differences in connection with the exercise of a contractual right between the requirements of public and private law and the consequences of their application will depend in part on an analysis of what that right, and disputes about its exercise, involve as a matter private law. But it may also depend in part on what is involved in treating a decision of a body discharging a public function as being amenable to judicial review in respect of the exercise of a contractual right on “conventional public law grounds”. In particular it is necessary to consider what the significance may be in public law of what may be unlawful as a matter of private law.[33]The validity of a decision of public authority may normally be impugned as a matter of public law if it misdirects itself in law either about the statutory or prerogative power which it is deciding whether or not to exercise or (except in the case of courts and tribunals in some cases) about the law which falls to be applied in its exercise. That law also necessarily governs what may be a relevant or a legally irrelevant consideration in any decision whether or not (and, if so, how) to exercise the statutory or prerogative power in question.[34]Where the question for a public authority is whether or not (and, if so, how) to exercise a contractual right the issue may not necessarily be the same. Private law governing that contractual right does not limit the legal capacity of a public authority: it limits what it has a right to do in that particular case. If a public authority may lawfully exercise that right as a matter of private law, therefore, it may be able to take into account, when deciding whether or not to exercise that right as a matter of public law, matters which would be irrelevant in private law. Conversely a contractual right may be exercisable as a matter of private law in a manner which it would not be capable of being exercised in public law as the considerations which a public body may take into account in exercising its public functions may be narrower than those which a person not exercising such functions may do: see eg Hang Wah Chong Investment Co. Ltd v the Attorney General for Hong Kong [1981] 1 WLR 1141.[35]What public law may require is not necessarily to be equated, therefore, with what contract law may require. Thus it may be possible, for example, that a public authority could decide to break its contractual obligations and pay damages in respect of any resulting loss lawfully as a matter of public law if the public interest so required. Similarly, in a case of legal uncertainty, it may be possible that a public authority could decide not unreasonably to seek to rely on a contractual right, or on a mode of exercising it, to which it may well not be entitled having had regard to the public interest and its fiduciary duty towards those who may be required to finance its activities. Nor does every legal error made by a public authority necessarily mean that its decision is invalid in public law. For example public authorities have a power to compromise claims provided that, in doing so, they do not undertake to do anything they have no power to do: see eg Hazell v the Council of the London Borough of Hammersmith and Fulham [1992] 2 AC1 per Lord Templeman at p38. The fact that a public authority may be mistaken about the law in deciding whether (and, if so, how) to compromise a claim does not mean that its decision to compromise it or the compromise itself is invalid (provided that it has power to do anything which it undertakes to do as part of the compromise).[36]Nonetheless, when a public authority decides whether or not (and, if so, how) to exercise any contractual right it may have, it must consider whether it can do so lawfully as a matter of private law. No reasonable public authority would do otherwise. Of course failure to do so may be immaterial if there is a contractual right to do what the authority may decide to do. However, if a public authority simply assumes, or decides to act on the basis, that it has a contractual right to do what it decides to do or, when doing so, takes into account something that it may not do as a matter of private law, then it has equally misdirected itself in law or taken into account what in the circumstances is a legally irrelevant consideration when discharging the public function in question and it has thereby erred in public law. In such a case the other contracting party will no doubt have an alternative remedy available in private law and it may well find that permission to apply for, and any relief sought on, a claim for judicial review will be refused. But it is possible that there may be some occasions in which others adversely affected may have sufficient standing to apply for judicial review if a decision taken in relation to the discharge of a public function is thus erroneous in law (as indicated above) or the question of its lawfulness may arise in other proceedings. The fact that such a decision is taken in relation to the discharge of a public function makes it likely that there will be others who may be adversely affected by it, including those who may be required to help finance the authority’s activities.[37]Against that background it is necessary to consider, therefore, what the position in private law governing NSHC’s decision was; whether the Claimants’ contention that the decision was unlawful in public law is well founded and what (if anything) it may add to any complaint they may have had in private law; and whether in any event relief ought to be refused if there was and is an alternative remedy available to them.

THE PRIVATE LAW APPLICABLE TO NSHC’S DECISION

[38]The Claimants have the right in accordance with their assured tenancy agreement to exchange their home with another assured or secure tenant if each has their landlord’s written consent and any conditions imposed are met. That agreement states that the Claimant’s landlord “will not unreasonably withhold permission” to the exchange and that it “will not withhold permission on any grounds except those mentioned in Schedule 2 to the Housing Act 1988”. The parties agree that tenancy agreement does not expressly limit the conditions which may be imposed on any such permission. But it specifically states that the Claimants “must…comply with any reasonable condition attached to your local Housing Company consent relating to the payment of outstanding rent, the remedying of any breach or performing any obligation of the tenancy agreement.”[39]There are two relevant preliminary questions which arise in private law about the Claimants’ right to exchange:(i) whether section 1 of the Landlord and Tenant Act 1988 applies to its exercise; and, if it does,(ii) what are the consequences of its application. (i). whether section 1 of the Landlord and Tenant Act 1988 applies to the Claimants’ right to exchange[40]Section 1 of the Landlord and Tenant Act 1988 applies where a tenancy (other than a secure tenancy or an introductory tenancy) includes a covenant, condition or agreement on the part of the tenant not to assign the tenancy without the consent of the landlord and that provision is subject to the qualification that the consent is not to be unreasonably withheld (whether or not it is subject to any other qualification): see sections 1(1), 5(1) and (3) of the 1988 Act.[41]Mr Grodzinski contended on behalf of the Defendant that section 1 of the Landlord and Tenant Act 1988 did not apply to the Claimants’ right to exchange on the grounds(i) that the right to assign in the Claimants’ assured tenancy was not subject to the qualification that the consent required was not to be unreasonably withheld and(ii) that the contractual provision in relation to exchange is not in the same terms as envisaged in that section.[42]There is an express general provision in the Claimants’ assured tenancy which limits their right to assign it so that they may not assign all or part of the property without the prior permission of their landlord. As an express term of their assured tenancy, that provision is qualified in any event by a proviso to the effect that such permission will not be unreasonably withheld by virtue of section 19(1) of the Landlord and Tenant Act 1927. The application of section 19 of the 1927 Act is excluded only when a term restricting assignment without the consent of the landlord is implied in an assured tenancy by virtue of section 15 of the Housing Act 1988: see section 15(1)-(3) of the 1988 Act. Accordingly Mr Grodzinski’s contention, the right to assign in the Claimants’ assured tenancy was not subject to the qualification that consent required was not to be unreasonably withheld, is wrong.[43]Mr Grodzinski’s second point, as I understand it, is that the Claimants’ right to exchange is not one that involves the exercise of any right to assign their tenancy. He submitted that, where the tenants agree, any such exchange will be effected by way of surrender of the respective tenancies and the grant of new tenancies. Where they do not agree, he stated that the Defendant would allow a form of mutual exchange of the tenancies by way of assignment.[44]In my judgment the right to exchange conferred by the Claimants’ assured tenancy agreement is one to be exercised by the assignment of their tenancy. It is to be noted that the Claimants’ right is to exchange with another of their landlord’s assured tenants or with the tenant of another local housing company in the Sunderland Housing Group, the tenant of another registered social landlord or the tenant of a local housing authority. Where a secure tenant of such a housing authority wishes to exchange his tenancy with an assured tenant of a registered social landlord, he does so by assigning his secure tenancy to the assured tenant: see section 92 of the Housing Act 1985. That assignment is an agreement to which the landlord is not a party: Sanctuary Housing Association v Baker (1998) 30 HLR 809. In such a “exchange” the assured tenant will equally assign his tenancy to the secure tenant. Mr Grodzinski’s contention gives no weight to the fact that what is involved is indeed an “exchange” between the two, not a multi-party agreement involving their landlords accepting surrenders and granting new tenancies on unspecified terms to the tenants involved. There is, of course, a general restriction in the Claimants’ assured tenancy on their right to assign without permission. In my judgment the provision for exchange in the Claimants’ assured tenancy agreement is a specific provision governing assignment in a particular case which not merely states that permission for the exchange may not be unreasonably refused but which also significantly limits the grounds upon such permission may be refused. Thus NSHC’s own policy states that “assured tenants have a legal right to mutually exchange their tenancy and a limited right to assign in other circumstances.”[45]No doubt in practice, if the tenants involved and their landlords agree that the existing tenancies should be surrendered and new tenancies should be granted on the same or different terms as those surrendered, there may be no assignment by each tenant to the other of their tenancy. But the Claimants’ contractual right is the right to assign their tenancy in exchange for that another eligible tenant subject to any condition which their landlord may impose when their landlord cannot reasonably refuse its permission on one of the stated grounds. Such an assignment is not something which their landlord “may allow” if the tenants do not agree to surrender their existing tenancies and accept the grant of new tenancies, as Mr Grodzinski suggested. In such circumstances it is what they are entitled to do.[46]In my judgment NSHC’s decision on the Claimants’ application for consent to the exchange was thus one to which section 1 of the Landlord and Tenant Act 1988 applied. (ii). the consequences of the application of section 1 of the Landlord and Tenant Act 1988[47]In a case to which section 1 of the Landlord and Tenant Act 1988 applies, when the tenant serves a written application for consent, the landlord must serve a written notice on the tenant within a reasonable time specifying the reasons for withholding that consent (if it is withheld) and the conditions imposed (if it is granted subject to conditions). The landlord also owes a duty to give consent, except in a case where it is reasonable not to give it, and that duty is not satisfied if consent is granted subject to any condition that is not a reasonable condition: see section 1(3)(a) and 1(4) of the 1988 Act. Civil proceedings may be brought from a breach of these duties (which are owed to the tenant seeking consent, not to any potential assignee) in the same manner as any other claim in tort for breach of statutory duty: see section 4 of the 1998 Act; Footwear Corporation v Amplight [1999] 1 WLR 551 at p559. Moreover, if a dispute arises whether a refusal of consent or a condition subject to which it is given was reasonable, it is for the landlord to show that it was: see section 1(6) of the 1988 Act.[48]There are three overriding principles in determining such a dispute between landlord and tenant following the imposition of a condition or the withholding of consent, which were identified by Lord Bingham in Ashworth Frazer Ltd v Gloucester City Council [2001] UKHL 59, [2001] 1 WLR 2180,:
“3..........The first, as expressed by Balcombe LJ in International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513, 520 is that "a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease ..." The same principle was earlier expressed by Sargant LJ in Houlder Bros & Co Ltd v Gibbs [1925] Ch 575, 587: “in a case of this kind the reason must be something affecting the subject matter of the contract which forms the relationship between the landlord and the tenant, and ... it must not be something wholly extraneous and completely dissociated from the subject matter of the contract.”
While difficult borderline questions are bound to arise, the principle to be applied is clear. "a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease ..." The same principle was earlier expressed by Sargant LJ in Houlder Bros & Co Ltd v Gibbs [1925] Ch 575, 587:
“in a case of this kind the reason must be something affecting the subject matter of the contract which forms the relationship between the landlord and the tenant, and ... it must not be something wholly extraneous and completely dissociated from the subject matter of the contract.”
While difficult borderline questions are bound to arise, the principle to be applied is clear. 4. Secondly, in any case where the requirements of the first principle are met, the question whether the landlord's conduct was reasonable or unreasonable will be one of fact to be decided by the tribunal of fact. There are many reported cases... care must be taken not to elevate a decision made on the facts of a particular case into a principle of law. The correct approach was very clearly laid down by Lord Denning MR in Bickel v Duke of Westminster [1977] QB 517, 524. 5. Thirdly, the landlord's obligation is to show that his conduct was reasonable, not that it was right or justifiable. As Danckwerts LJ held in Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547, 564:
“it is not necessary for the landlords to prove that the conclusions which led them to refuse consent were justified, if they were conclusions which might be reached by a reasonable man in the circumstances ...”
Subject always to the first principle outlined above, I would respectfully endorse the observation of Viscount Dunedin in Viscount Tredegar v Harwood [1929] AC 72, 78 that one “should read reasonableness in the general sense”. There are few expressions more routinely used by British lawyers than “reasonable”, and the expression should be given a broad, common sense meaning in this context as in others.”[49]The circumstances in which a landlord may be required to take into account anything other than his own interests, however, are exceptional. As Carnwath LJ put it in NCR Limited v Riverland Portfolio No 1 Limited [2005] EWCA Civ 312, “34......there is no doubt that the lessor is normally entitled to be guided by reference to his own interests alone. As Lord Rodger accepted in Ashworth Fraser:
“… the court is not concerned with whether or not the terms of the contract are reasonable as between the parties. The court is concerned only with the assignment and with whether or not it is reasonable for the landlord to withhold consent to that assignment…." (para [69]). .......... 35. However, there may be exceptions. In the International Drilling case, where the authorities were considered by Balcombe LJ. He found “two streams of authority” which he reconciled in the following passage:- “A proper reconciliation of those two streams of authority can be achieved by saying that while a landlord need usually only consider his own relevant interest, there may be cases where there is such a disproportion between the benefit to the landlord and detriment to the tenant if the landlord withholds his consent to an assignment that it is unreasonable for the landlord to refuse consent." ([1986] 1Ch 513, 521C-D) In that case the Court of Appeal upheld the finding of the judge that the refusal had been unreasonable. Balcombe LJ thought it right to take into account the fact that the decision resulted in the premises being left empty. He said:- “Although (the judge) did not expressly mention the disproportionate harm to the tenants if the landlords were entitled to refuse consent to the assignment, compared with the minimum disadvantage which he clearly considered the landlords would suffer by a diminution in the paper value of the reversion – 'paper value' because he was satisfied there was no prospect of the landlords wishing to realise a reversion – he clearly recognised the curious results to which the landlord's arguments based solely upon a consideration of their own interests could lead.”
(p 521G-H). 36. The judge had referred to the unfairness of an approach which had the effect that, the more the substantial the lessee, the more easily the landlord would be able to justify a refusal of consent since unless the proposed assignee's covenant was as strong, a reasonable man might form the view that the market would regard the reversion as less attractive. Balcombe LJ commented:- “In my judgment the gross unfairness to the tenants of the example postulated by the judge strengthens the arguments in favour, in an appropriate case of which the instant case is one, of it being unreasonable for the landlord not to consider the detriment to the tenant if consent is refused, where the detriment is extreme and disproportionate to the landlord.” That passage needs to be seen against the background of the judge's conclusions in that case, which included findings that there was “no possibility” that the proposed use would have a depreciatory effect on the letting value at the end of the lease; that there was no significant danger that the rent would not be paid throughout the term; that the rent obtainable on future rent reviews would not be prejudiced; and that the was “no prospect” of the property being placed on the market or mortgaged to the fullest extent possible. (p 518 F-G)” “… the court is not concerned with whether or not the terms of the contract are reasonable as between the parties. The court is concerned only with the assignment and with whether or not it is reasonable for the landlord to withhold consent to that assignment…." (para [69]). “A proper reconciliation of those two streams of authority can be achieved by saying that while a landlord need usually only consider his own relevant interest, there may be cases where there is such a disproportion between the benefit to the landlord and detriment to the tenant if the landlord withholds his consent to an assignment that it is unreasonable for the landlord to refuse consent." ([1986] 1Ch 513, 521C-D) “Although (the judge) did not expressly mention the disproportionate harm to the tenants if the landlords were entitled to refuse consent to the assignment, compared with the minimum disadvantage which he clearly considered the landlords would suffer by a diminution in the paper value of the reversion – 'paper value' because he was satisfied there was no prospect of the landlords wishing to realise a reversion – he clearly recognised the curious results to which the landlord's arguments based solely upon a consideration of their own interests could lead.” (p 521G-H). “In my judgment the gross unfairness to the tenants of the example postulated by the judge strengthens the arguments in favour, in an appropriate case of which the instant case is one, of it being unreasonable for the landlord not to consider the detriment to the tenant if consent is refused, where the detriment is extreme and disproportionate to the landlord.” As Carnwath LJ later observed (at [51]), “the approach taken in that case was exceptional, and dependent on the strong findings made by the judge.”[50]This approach to the question of what may be reasonable may have a different focus in such cases from that which may apply in public law. Normally a person discharging a public function does not do so in his own interests. Such a person discharges it in the public interest for the purpose for which the function was conferred having regard to the consequences for those who may be beneficially or adversely affected by any decision it may take. The difference may be less marked, however, where the landlord is a registered social landlord when it is managing and allocating its social housing as such a body is not profit-making. But there may remain features of a transaction (such as, for example, the effect of a refusal of permission or a condition imposed on a person wanting to participate in an exchange who is not its tenant) which may at least arguably be irrelevant to the reasonableness of its decision under the 1988 Act but relevant to its decision as a matter of public law. In public law, at least arguably, the scales may also not be so heavily weighted in favour of the landlord’s interest. Whether it is necessary in this case to come to any conclusion on these matters I will consider below in the light of the particular grounds raised.

THE GROUNDS ON WHICH NSHC’S DECISION IS CHALLENGED

[51]The Claimants’ case is that no reasonable public body could have decided that consent should only be granted for the exchange which they proposed if Mr McIntyre first paid the amount due under the order of the Sunderland County Court in 1998 given(a) that amount, and the rent arrears to which that order related, were irrecoverable by NSHC and(b) that, in any event, both relate to a different property, 78 Rockingham Road. Mr Paget also submitted that it was unreasonable for NSHC to require payment at all since the amount involved is relatively small and the Claimants have discharged their obligations with respect to rent on the property. He further submitted that it was unreasonable in any event for NSHC to refuse the offer made that Mr McIntyre would pay off the amount requested by instalments after any exchange. He finally contended that NSHC simply applied a blanket policy without considering the Claimants’ circumstances.[52]Mr Grodzinski submitted that NSHC was a non-profit making company limited by guarantee with responsibilities in connection with the social housing it provided and that, in making its consent conditional on Mr McIntyre first paying what was due to it before he could obtain a benefit from it, it was simply adopting a sensible, cost-effective and proportionate approach to obtaining payment of a small debt it was owed on the recovery of which Sunderland City Council had already expended resources fruitlessly. He contended that all NSHC was doing was imposing a “reasonable condition...relating to the payment of outstanding rent” specifically envisaged by the Tenants’ Handbook. He also pointed out, by way of analogy, that there is a well established principle that a mortgagor cannot redeem except on payment of all arrears of interest including those which may have become statute-barred: see Re Howell’s Application [1972] Ch 509 at p513; Ezekiel v Orakpo [1997] 1 WLR 340 CA at p347, and Yorkshire Bank Finance v Mulhall [2008] EWCA Civ 1156, [2009] 1 P&CR 16 CA.[53]It is convenient to consider initially Mr Paget’s submissions(i) that the amounts to which the condition impugned related were not amounts to which NHSC ever acquired any right;(ii) that they were in any event irrecoverable by reason of the lapse of time since the rent accrued and the order was made against Mr McIntyre and the significance of that if they were; and(iii) about the significance of the fact that they related to 78 Rockingham Road. I will then consider his other contentions against the background of my conclusions on these matters. (i). whether NSHC ever had any right to the amounts to which the condition impugned related[54]Mr Paget claims that the amount due under the order of Sunderland County Court and the rent arrears to which it related were both irrecoverable by NSHC on the ground(a) that the right to the benefit of both was not assigned by the Sunderland City Council to SHCL and(b) that in any event Mr McIntyre would have had a defence to any claim in respect of them by virtue of the Limitation Act 1980.[55]Whether the benefit of the court order and the right to any rent arrears in respect of 78 Rockingham Road were assigned by Sunderland City Council to SHCL depends on the terms of the Deed of Assignment of Rent and Service Charge Arrears and Overpayments (referred to in paragraph [14] above).[56]Mr Paget submitted that there was no evidence that the City Council’s rights in relation to the arrears of rent at 78 Rockingham Road were assigned by virtue of Clause 1.1 of that Deed. Clause 1 stated that the intent was that SHCL should “have the right to recover all arrears of rent and (where applicable) service charge (“the Arrears”): see Clause 1. The Deed was intended to give effect to the obligation imposed by Clause 9.1 of Agreement for the Transfer of Housing Stock (set out in paragraph [14] above) to assign all such arrears due at the Completion Date from existing and former tenants of the dwellings transferred, which would have included Mr McIntyre’s rent arrears in respect of 78 Rockingham Road. The Annex referred to in Clause 1.1 is apparently a lengthy computer print out. No reference can be found in it, however, to the arrears in respect of 78 Rockingham Road. It appears, therefore, that the right to those arrears may not have been assigned to SHCL.[57]But in any event it is plain that the benefit of any orders for money judgments obtained by the City Council against former tenants of premises comprised in Clause 9.1 of the stock transfer were assigned by Clause 1.2 of the Deed of Assignment to SHCL. That unarguably included the money judgment obtained against Mr McIntyre in respect of 78 Rockingham Road (as Mr Paget has now conceded).[58]Accordingly in my judgment SHCL became entitled by virtue of the Deed of Assignment to the benefit of the court order which the City Council had obtained in 1998 against Mr McIntrye. (ii). whether the amounts were irrecoverable by NSHC and the significance of that if they were[59]The Claimants’ case assumes that, by virtue of the time which has elapsed since it was made, the amounts payable in accordance with the order of the Sunderland County Court are now irrecoverable. That assumption is not correct.[60]True it is that, by virtue of section 19 of the Limitation Act 1980, no action may be brought to recover arrears of rent after the expiration of six years from the date on which the arrears became due. But that provision is irrelevant in any event in relation to the bringing of any action now to recover the arrears of rent which Mr McIntyre owed on 78 Rockingham Road. No such action could have been brought in respect of the arrears of rent to which the order of Sunderland County Court related after that order was made. The cause of action in respect of those arrears was merged in the judgment: see eg Halsbury’s Laws of England Volume 9 Contract 4th ed reissue at [1063]. In terms of securing payment of the amounts in question with the assistance of the court, therefore, the relevant question concerns that order.[61]Section 24(1) of the Limitation Act 1980 provides that an action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable. But the House of Lords has held, in Lowsley and another v Forbes [1999] 1 AC 329, that “an action upon any judgment” in that section refers only to a fresh action brought upon it to obtain a second judgment that could be executed and that accordingly proceedings to execute a judgment debt are not an “action upon a judgment” for this purpose: see per Lord Lloyd at p342; Ridgeway Motors (Isleworth) Ltd v ALTS Limited [2005] EWCA Civ 92, [2005] 1 WLR 2871, per Mummery LJ at [29].[62]The Limitation Act 1980 does not provide for any limitation period in respect of the execution of a judgment that has been obtained. A writ or warrant of execution to enforce a judgment or order may only be issued, however, where six years or more have elapsed since the date of the judgment or order, with the permission of the court: see CPR Schedule 1, RSC Order 46 r2(1)(a), CPR Schedule 2 CCR Order 25 r5(1)(a). The lapse of six years may, and ordinarily will, in itself justify refusing a judgment creditor permission to issue the writ or warrant of execution, unless the judgment creditor can justify the granting of permission by showing that the circumstances of his or her case takes it out of the ordinary: see Patel v Singh [2002] EWCA Civ 1938 per Peter Gibson LJ at [24]. But neither RSC Order 46 r2(1)(a) nor CCR Order 25 r5(1)(a) of itself bars proceedings to issue a writ or warrant of execution in respect of a judgment debt six years after the order was obtained. Whether permission would be ever granted to issue a writ of execution in respect of the order of the Sunderland County Court, however, is not a question for determination, or one which is capable of determination given the information available, on this claim.[63]Nor does the fact that more than six years have elapsed since the order was made preclude recovery of the debt it created by means, such as a winding up or bankruptcy petition, which do nor involve a fresh action brought upon it to obtain a second judgment: see Ridgeway Motors (Isleworth) Ltd v ALTS Limited supra per Mummery LJ at [29] and [35(2)].[64]It follows that debt created by the order of the Sunderland County Court cannot be regarded as necessarily irrecoverable (as the Claimants’ case has assumed). The premise for the Claimants’ arguments on this point is thus flawed.[65]In my judgement, however, the Claimants’ case (insofar as it is based on the time which has elapsed since the rent accrued in respect of 78 Rockingham Road and the order of the County Court was made) would have not have been improved had the premise been well founded.[66]As Mr Grodzinski correctly submitted, the relevant provisions of the Limitation Act 1980, if applicable, only bar a claim or action. They do not of themselves extinguish any liability in respect of which such a claim or action might otherwise have been brought. As Cotton LJ stated in Curren v Milburn (1889) 42 Ch D 424 CA at p434-5, “statute-barred debts are due, though payment of them cannot be enforced by action”. “It seems to me to be clear law that the expiry of the limitation period bars the remedy by action and does not extinguish the right”: see per Diplock J (as he then was) in Norwegian Government v Calcutta Marine Engineering Co. Ltd [1960] 2 Lloyds Rep 431 at p442. Similarly a judgment debt still remains due, and a liability of the person ordered to pay, after six years: see Ridgeway Motors (Isleworth) Ltd v ALTS Limitedsupra per Mummery LJ at [35(2)]. Thus a refusal to give permission to issue a writ or warrant of execution does not extinguish the debt nor does it necessarily preclude a subsequent application for such permission: cf WTLamb & Sons v Rider [1948] 2 KB 331 per Scott LJ at p334.[67]Mr Paget submitted that the condition which NSHC imposed represented an attempt by it to by-pass the requirement to obtain permission to issue a writ or warrant of execution in respect of the judgment debt. Obviously, if the condition it imposed had been complied with, NSHC would have had no need to obtain such permission. But NSHC was under no requirement to seek permission to issue a writ or warrant of execution in order to recover what it was owed by Mr McIntyre if it could obtain payment by other means.[68]For the purpose of considering the significance of the lapse of time since the order of the County Court was made and the arrears to which it related accrued, I shall assume that they related to the property. I shall consider later the significance of the fact that they related to 78 Rockingham Road.[69]It may well reasonable in some circumstances for a landlord to refuse permission to an assignment, or to impose conditions, in order to secure that the terms of the tenancy are complied with. It may well be more difficult to secure the discharge by a tenant of his obligations after his tenancy has been assigned. Such a concern would plainly be something that had to do with the relationship of landlord and tenant in regard to the subject matter of the lease and thus something that satisfied the first principle identified by Lord Bingham in Ashworth Frazer Ltd v Gloucester City Council.[70]Mr Paget contended, however, that the condition impugned was not one relating to the payment of outstanding rent as described in the Tenants’ Handbook. He submitted that, quite apart from the fact that it related to amounts due in respect of 78 Rockingham Road, any rent not paid by Mr McIntyre was not now “outstanding” as it could not be recovered by a claim as it would be time-barred. In that connection he drew attention to section 92(5) of the Housing Act 1985 on which he suggested the Tenants’ Handbook was modelled in this respect. That subsection identifies the only condition which a local housing authority may impose on any consent which it may give to one of its secure tenants to assign his tenancy to another secure tenant or to an assured tenant of certain providers of social housing by way of mutual exchange. Subsection (5) provides that:
“Where rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed, the consent required by virtue of this section may be given subject to a condition requiring the tenant to pay the outstanding rent, remedy the breach or perform the obligation.”
Mr Paget submitted that rent is not “lawfully due”, and accordingly cannot be “outstanding”, if a claim for it would be statute-barred. Mr Grodzinski’s response was that a statute-barred debt is still one which is due.[71]Mr Paget may well be correct that rent is not “lawfully” due for the purpose of Part IV of the Housing Act 1985 if a claim for it is statute-barred. Thus one of the grounds on which possession of a dwelling let under a secure tenancy may be ordered under that Part is that “rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed”, the same phrase as is used in section 92(5): see section 84 of, and Ground 1 in Part 1 of Schedule 2 to, the Housing Act 1985. There is the same requirement that rent be “lawfully due” but unpaid for an order of possession to be granted of an assured tenancy: see Grounds 8 and 10 in Schedule 2 to the Housing Act 1988. Those requirements for an order of possession to be granted reflect a ground on which dwellings subject to the Rent Acts could also be recovered. In that context the Court of Appeal considered that “rent is not lawfully due unless it can be recovered by process at law”: see Bird v Hildage [1948] 1 KB 91 at p99. Of course there may be other circumstances, such as the existence of a set-off, in which rent ostensibly due may not be “lawfully” due. But it may be that rent is also not “legally due” when it is statute-barred, as Mr Paget suggested. Indeed it may be thought odd that an order for possession might be obtained in such a case.[72]I do not propose to reach any conclusion on that point, however, as it is unnecessary to do so. The Tenants’ Handbook (unlike section 92(5) of the Housing Act 1985) does not provide that the condition relating to “outstanding rent” which it describes may be imposed only if rent lawfully due from the tenant has not been paid. Rent may simply be “outstanding” if it is due and has not been paid. Moreover, and more significantly, the terms of the Claimants’ assured tenancy do not limit the conditions that the landlord may impose when giving consent to a mutual exchange to the conditions specifically mentioned (as both parties agree). Accordingly, even if the specific condition referred to in the Tenants’ Handbook as one which might be imposed does not cover the condition actually imposed by NSHC, the question would still remain (on any claim for judicial review) whether the decision to impose it on the consent given to the Claimants was one no reasonable landlord of social housing could have imposed in the circumstances.[73]In that respect Mr Grodzinski’s invocation by analogy of the principle that a mortgagor cannot redeem except on payment of all arrears of interest (including those which may have become statute-barred) is not exact. The amounts of interest in question are those owed to the mortgagee in respect of the mortgaged property. Here the amounts outstanding were not owed in respect of the property sought to be exchanged, a distinct objection raised by Mr Paget (which I shall consider separately below). For the purpose simply of considering the significance of the time which has elapsed since the county court order was made against Mr McIntyre, however, I am assuming that the court order and rent arrears related to the property. On that assumption the distinction between defending a claim that is statute-barred and the terms on which it may be just to allow a right to be exercised made in the context of mortgage redemption is of some assistance in considering whether or not the condition NSHC imposed was unreasonable. As Kindersely VC stated in Edmunds v Waugh (1866) LR 1 Eq 418 at 421 (in a passage cited by Pennycuick VC in Re Howell’s Applicationsupra at p666), “is the omission of the mortgagor to pay the interest which he ought to have paid less culpable than the omission of the mortgagee to demand and enforce payment of it?” Moreover, in considering relative culpability for the fact that the amount under the order of the Sunderland County Court has remained outstanding since 1998 and whether that may have made insistence on its payment in 2007 unreasonable, the fact that the repeated efforts of Sunderland City Council to enforce the order it obtained were frustrated cannot be ignored. Nor is there any evidence that the City Council, SHCL or NSHC ever informed Mr McIntyre that he need not pay the amounts ordered.[74]In my judgment it cannot be said that no reasonable landlord of social housing could have made payment of any amount due from Mr McIntyre a condition of its consent to a mutual exchange of his joint tenancy merely on the ground of the lapse of time since the order was made by Sunderland County Court. (iii). the significance of the fact that the arrears of rent and the order of the County Court related to 78 Rockingham Road, not the property[75]Mr Paget also contended that it had been unreasonable to impose the condition on the consent given to the Claimants because the rent outstanding and the County Court judgment did not relate to the property and, contrary to the Defendant’s case, it was thus not a condition of the description expressly referred to in the Tenants’ Handbook.[76]The fact that the arrears to which the County Court Order relates were owed by Mr McIntryre in respect of 78 Rockingham Road raises the question whether the first of the principles identified by Lord Bingham in Ashworth Frazer Ltd v Gloucester City Council (set out in paragraph [48] above) is infringed by a condition imposed on a permission to assign that the tenant must pay any arrears of rent owed to the landlord in respect of a tenancy other than that in respect of which consent to assignment is sought. Is such a condition (to use the descriptions of the principle quoted by Lord Bingham) one that has “nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease”; is it one “wholly extraneous and completely dissociated from the subject matter of the contract” (which is the tenancy the subject of the proposed assignment for which consent is sought)?[77]Mr Grodzinski submitted that this principle was not infringed by a refusal or condition which was not based on something “wholly extraneous to the lessee” proposing to assign. On that basis he contended that the condition imposed had something to do with the lessee, Mr McIntyre. In support of his submission Mr Grodzinski relied on what Pollock MR had stated in Houlder Bros & Co Ltd v Gibbs [1925] Ch 575 at p583, the case on which he said the first principle identified by Lord Bingham was based. Pollock MR described the reason given by the landlord for refusal in that case as one which was “independent of the relation between lessor and lessee, and is on grounds which are entirely personal to the lessor, and wholly extraneous to the lessee”.[78]There are two problems with Mr Grodzinski’s submission in relation to the law on this point. The first is that it seeks impermissibly to elevate one observation by one member of the court about the reason why the refusal in that case was unreasonable into a criterion by which reasonableness is to be judged. The fact that something that does not relate to the proposed assignor (for example the proposed use of the premises by the proposed assignee) does not necessarily mean that it is irrelevant. Nor does the fact that something relates to the proposed assignor (for example the colour of his hair) necessarily make it relevant. The second, and more significant, objection to Mr Grodzinski’s submission, however, is that, whatever Pollock MR may have said, the principle that has been recognised by the courts on numerous occasions is the principle as described by Lord Bingham in Ashworth Frazer Ltd v Gloucester City Council.[79]As Balcombe LJ explained in International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd supra at p519-520, the first principle is a corollary of the fact that the purpose of a covenant against assignment without the consent of the landlord, such consent not to be unreasonably withheld, is to protect the lessor from having his premises used or occupied in an undesirable way or by an undesirable assignee. As Lord Rodger said in Ashworth Frazer Ltd v Gloucester City Council at [61], such a clause “must be interpreted and applied so as to give effect to this purpose.” Thus it will not normally be reasonable for a landlord, for example, to seek to impose a condition which is designed to increase or enhance the rights that he enjoys under the lease: see Mount Eden Land Ltd v Staudley Investments Ltd (1997) 74 P&CR 306 per Phillips LJ (as he then was) at p310. No doubt, in considering whether the manner in which the premises sought to be assigned may be used could be undesirable, a landlord may take into account whether such a use of those premises will adversely affect other property which he may have. In that respect considerations relevant to good estate management are relevant. But, as the Court of Appeal held in Bromley Park Garden Estates Ltd v Moss [1982] 1 WLR 1019, the fact that a landlord’s response to the request for permission to assign may be good estate management and will produce a financial advantage for him does not of itself necessarily make it reasonable in this context. Such advantages may be collateral benefits which it was not purpose of the covenant to enable him to secure. Thus, in Houlder Bros & Co Ltd v Gibbs [1925] Ch 575 itself, the Court of Appeal found that a landlord’s consent was unreasonably refused when his objection to an otherwise unobjectionable, proposed assignee was that, if he became the tenant, the landlord would be likely to lose rental income from other premises which the proposed assignee currently occupied and would vacate. That objection had nothing to do with the personality of the proposed assignee or with the subject matter of the lease (for example how the premises demised were to be used or the obligations under it).[80]In this case the condition imposed when giving the Claimants permission had nothing whatever to do with the personality of the proposed assignee of their tenancy, the manner in which the property might be used or ensuring that the terms of the Claimants’ assured tenancy were performed. It was concerned with securing the payment of an amount which Mr McIntyre, who happens to be one of the joint tenants of the property, owes to the person who is his landlord. In my judgment it is not the purpose of a qualified covenant against assignment to provide the landlord with a lever enabling him to recover debts which do not arise under, or at least in connection with, the tenancy to be assigned but which the tenant who wishes to assign may owe his landlord in some other capacity. That would plainly be so in relation to debts incurred in respect of any goods or services which the landlord chose to provide under a separate contract to the proposed assignor having no connection with the tenancy which he wishes to assign. There is no reason why the result should be any different if the debt arises under a different tenancy agreement and has no connection with the tenancy in respect of which the tenant seeks permission to assign.[81]Mr Grodzinski submitted that the condition was one expressly provided for in the terms of this assured tenancy. In my judgment that is not correct (quite apart from the fact that the condition imposed related not merely to the payment of outstanding rent but also to the payment of court costs). The natural and ordinary meaning of the provision in that agreement (set out in paragraph [13] above), when it refers to the tenant complying with a condition relating to the payment of outstanding rent, is that it is a reference to any rent outstanding from the tenant under the tenancy. That interpretation is reinforced when it is joint tenants who may be required to comply with such a condition. It would require different language to alert those who may be contemplating entering into a joint tenancy referring to that condition that it might relate to outstanding rent which they did not jointly owe their landlord under their joint tenancy. But in any event a refusal to give permission or a condition imposed on any permission does not become reasonable for the purpose of section 1 of the Landlord and Tenant Act 1988, on the basis that the parties have agreed that it should be so regarded, if it infringes the first principle identified by Lord Bingham, unless they have reached an agreement in respect of a “qualifying lease” in accordance with the provisions of section 19(1A) to 19(1E) of the Landlord and Tenant Act 1927: see section 19(1A). A “qualifying lease” does not include a tenancy (such as the Claimants’) by which a building or part of a building is let wholly or mainly as a single private residence: see section 19(1E)(a) and 25 of the 1927 Act.[82]Mr Grodzinski also contended that what NSHC did in this case was simply what Parliament has enabled a local housing authority to do (by virtue of section 92(5) of the Housing Act 1985) when considering an application for permission by one of its secure tenants for a mutual exchange and that accordingly it could not be unreasonable for a registered social landlord to do so when considering an application for permission by one of its own tenants occupying social housing.[83]Section 92(5) of the 1985 Act is set out (in paragraph [70]) above. In my judgment, however, the rent due from the tenant referred to in that subsection is also the rent due from him under the secure tenancy which he wishes to assign. Mr Grodzinski contended that the reference in that subsection to “rent lawfully due from the tenant” in that subsection must be capable of referring to refer to rent due from him under another tenancy as otherwise it would be surplusage. That phrase occurs in the context of a reference to a situation “where rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed”. Mr Grodzinski pointed out that a failure to pay the rent involves a breach of an obligation of the tenancy and accordingly he argued that, if the phrase “rent lawfully due from the tenant” was to add anything, it must refer to rent due under another tenancy. But the fact that rent has not been paid in accordance with the terms of the tenancy does not necessarily mean it is lawfully due: the amount lawfully due may be less, for example if there is a set off. Moreover, as mentioned in paragraph [71] above, the same language is also used when describing the grounds on which possession of a secure tenancy may be ordered. In that context likewise in my judgment it is only rent which is lawfully due from the tenant under the tenancy of the dwelling in respect of which an order for possession is sought that may justify such an order. Mr Grodzinski’s construction would allow a local housing authority to impose a condition, or seek possession, if rent was due under another tenancy but not if some other obligation of that other tenancy had been broken or not performed. That would reflect no intelligible legislative policy. If what a secure tenant may have done or may not have done under another tenancy is relevant to whether he should be given permission to assign or to keep possession of his dwelling, it makes no sense to distinguish between his obligation to pay rent and his other obligations under that tenancy.[84]Accordingly Mr Grodzinski’s invocation of section 92(5) of the Housing Act 1985 does not alter the conclusion that the condition imposed by NSHC on the consent it gave the Claimants was not one that it could impose on any consent to an assignment by them which was not to be unreasonably refused as it was a condition that infringed the first principle identified by Lord Bingham in Ashworth Frazer Ltd v Gloucester City Council.[85]Mr Grodzinski rightly pointed out that Lord Bingham had indicated that, while the principle to be applied is clear, difficult borderline questions are bound to arise. In my judgment different considerations might arise, for example, if the tenant proposing to assign had undertaken to pay some debt or discharge some other obligation in order to obtain the tenancy but had subsequently failed to do so. But there is nothing to suggest that in this case the grant of the Claimants’ assured joint tenancy was conditional on, or tied to, any undertaking by Mr McIntyre to clear the arrears on 78 Rockingham Road. Its grant was plainly simply part of the arrangements for the stock transfer from Sunderland City Council to SHCL.[86]The assignment proposed by the Claimants, however, is part of a mutual exchange. If that exchange had been with a tenant of another landlord, no further question would arise. But in this case the exchange did not merely require NSHC to give the Claimants permission to assign their tenancy to the individual occupying the property in Corinthian Square. It also required NSHC to give that individual its permission to assign her tenancy in that property to the Claimants as she was also an assured tenant of NSHC. Mr Grodzinski submitted that, in considering whether the Claimants were suitable tenants for the dwelling in Corinthian Square, NSHC was entitled to have regard to Mr McIntyre’s failure to pay rent and the amounts due under the court order in respect of 78 Rockingham Road.[87]Both the Claimants and the individual occupying the property in Corinthian Road each required NSHC’s consent. Mr Grodzinski’s argument is concerned with whether NSHC could have been justified in imposing the condition it did in this case on her assignment to the Claimants. It is not directed at whether the decision to impose the condition on the consent given to the Claimants to assign (which is what is impugned) was lawful.[88]Even if it may be assumed that the same condition was imposed on any consent given to that individual, however, in my judgment there would have been a fundamental objection to it. The purpose which the parties intend the power (which a landlord has to impose conditions on a permission to assign which cannot be unreasonably withheld) to serve is to enable an objection to be removed which might otherwise justify a refusal of that permission. Its purpose is not to enable a landlord to obtain some other advantage for itself, in effect enabling it to use the requirement to obtain consent to obtain a benefit for itself when it cannot otherwise reasonably refuse consent. In this case NSHC was not entitled to refuse consent to the individual occupying the property in Corinthian Square on the ground that one of the proposed joint tenants to whom she wished to assign was an undesirable tenant from the landlord’s point of view.[89]One of the main purposes of a qualified covenant against assignment is, of course, to protect a landlord from having his premises occupied by an undesirable assignee. A proposed assignee who has failed to comply with a court order to pay amounts which he now owes to the landlord might well be regarded as an undesirable tenant by that landlord, even if he or she is only one of a number of individuals who may become joint tenants if the assignment occurs. The difficulty in this case, however, is that Tenants’ Handbook states that permission will not be withheld for an exchange on any grounds except those in Schedule 2 to the Housing Act 1988 (which are the grounds upon which an order for possession may be made against an assured tenant). The grounds in Schedule 2 appear to relate only to the assured tenant (who is proposing to assign), not to an individual to whom such a tenant is proposing to assign (who may not be such a tenant). But, even if they could be so read, these grounds would not have allowed permission to be refused because Mr McIntyre had arrears of rent or a court order made against him in respect of such arrears at 78 Rockingham Road. A number of the grounds mentioned in Schedule 2 arise when rent lawfully due from the tenant is unpaid or is in arrears or where the tenant has persistently delayed paying rent which has become lawfully due: see grounds 8, 10 and 11. The rent there referred to is plainly that due in respect of the tenancy in respect of which an order for possession may be obtained and the reference to “the tenant” in those grounds, where two or more persons jointly constitute the tenant in relation to a tenancy, is a reference to all of them: see section 45(3) of the Housing Act 1988. Assuming that these grounds may apply to a proposed assignee, consent to assign might have been refused to the individual occupying the property in Corinthian Square if the Claimants had been in arrears with their rent in respect with respect to the property, but they were not. Nor is there any other ground in Schedule 2 to the 1988 Act which could have justified refusal of consent to assign to the Claimants. This is perhaps less surprising than it may at first sight appear. The circumstances in which a local housing authority can refuse one of its secure tenants permission to assign by way of exchange to other tenants of social housing under section 92 of the Housing Act 1985 by reference to their undesirability as tenants are limited and would not cover the circumstances of this case: see section 92(3) of, and Schedule 3 to, the 1985 Act.[90]The condition imposed by NSHC was thus not one in my judgment that it could impose on any consent to an assignment by the Claimants which was not to be unreasonably refused as a matter of private law. NSHC plainly proceeded on the assumption that it could do so and in that respect erred in law and took into account something, namely the amounts outstanding in respect of 78 Rockingham Road, that was irrelevant to its decision to impose that condition. It thereby erred as a matter of public law.[91]Had the condition been one capable of being imposed as a matter of private law, however, there is no reason in my judgment why it would have been unreasonable to do so as a matter of public law subject to the other arguments which Mr Paget advanced. Recovering what is owed to a registered social landlord to assist in the provision of social housing is patently not an unreasonable objective in itself for such a landlord. Indeed it might well be thought not to be acting reasonably, other things being equal, if it does not do what it reasonably can do to obtain what it is owed by others, including those who occupy its social housing. (iv). the Claimants’ other contentions[92]Apart from complaints based on the age of the amounts outstanding and the dwelling in respect of which the debt was incurred, Mr Paget also submitted that it was unreasonable for NSHC to require payment at all since it effectively penalised Mrs McIntyre, who was unable to benefit from an exchange through no fault of her own; that the amount involved is small, and that the Claimants have discharged their obligations with respect to rent on the property. He further submits that it was unreasonable in any event for NSHC to refuse the offer made that Mr McIntyre would pay off the amount requested by instalments after any exchange. He finally contends that NSHC simply applied a blanket policy without considering the Claimants’ circumstances.[93]In any mutual exchange where all the tenants involved require permission from their landlords, it is inevitable that one of those involved may be denied the benefit of the exchange proposed due to the fault of another which leads to that other individual being refused permission or to him being granted permission on terms with which he may not comply. That is not to suggest that Ms McIntyre’s position as an “innocent party” should necessarily be ignored in public law, any more than the position of the person with whom the Claimants wished to exchange should be. But the effect that a refusal of, or a condition imposed on, any permission may have on such an “innocent party” would not necessarily of itself make a decision to refuse consent, or to give it only on certain terms which may not be met, Wednesbury unreasonable. What weight it may have in any decision must depend on the circumstances and in particular the nature and extent of any adverse impact on such an “innocent party”. In this case there is no evidence that NSHC was informed that there would be any specific adverse effect either on Mrs McIntyre or on the person with whom the Claimants wished to exchange homes if they were unable to move if the condition was not met and the exchange did not proceed. There was therefore nothing (apart from any inevitable disappointment) which might have been weighed in any balance by NSHC.[94]The fact that the amounts in question may not be themselves be “large” from the point of view of the landlord in the context of its total revenues does not make any attempt to recover them in this, no doubt cheaper, manner unreasonable. Indeed the complaint coming from the Claimants that the amount is not relatively large has the bizarre consequence that their complaint would have even less force if NSHC had been less generous and had sought to obtain more by also requiring prior payment of the arrears of the interest due on the judgment debt which Mr McIntyre owed.[95]Mr Paget further submitted that it was unreasonable in any event for NSHC to refuse the offer made that Mr McIntyre would pay off the amounts requested by instalments after any exchange. There is no evidence, however, that Mr McIntyre did not have sufficient resources to enable him to pay off the amounts required nor, if he did not have them, (as I have mentioned) of any specified detriment to him or his wife in not being able to exchange their tenancy immediately. Moreover Sunderland City Council’s experience when seeking to get Mr McIntyre to meet his obligations under the order of the Sunderland County Court to which I have referred (and to which NSHC evidently intended to refer in its letter dated May 17th 2007 notwithstanding the misleading reference to the Sunderland Housing Group) provided grounds for scepticism about the enforcement of any such undertaking by him, something that was not unreasonably taken into account by NSHC when rejecting the offer.[96]Mr Paget further contended that NSHC had simply applied a blanket policy without considering the Claimants’ circumstances. Even if there was anything in the evidence currently available to support this contention, I would have refused leave to amend the grounds on which this claim is brought to raise it. The Defendant has had no opportunity to deal with the contention in evidence. In fact, however, there is nothing bar assertion to support this contention. If anything the evidence shows that NSHC were prepared to consider arguments which were put to it, for example with respect to the offer that Mr McIntyre would pay the amounts in question by instalments. The fact that the arguments were rejected for reasons which were given does not prove that NSHC simply applied a blanket policy without considering the Claimants’ circumstances. If anything it shows that it was willing to consider any arguments put forward but that it was not persuaded by them.

(v) conclusion

[97]In considering any claim that a decision is one no reasonable registered social landlord could have taken in discharging its function of managing and allocating its social housing stock, it is necessary to look at the position overall rather than point by point (although each point needs to be considered). Moreover it is also necessary not to overlook the fact that such a decision is one taken in the discharge of that function by a body not conducting its activities for profit and one which has experience in discharging that task that this court does not have. Its discretionary decisions in the discharge of that function which do not engage any Convention right are ones to which considerable respect should be given.[98]Leaving aside the fact that the amounts which the condition impugned required to be paid related to a different tenancy, there is nothing in this case which comes close to establishing that the decision was one no reasonable social landlord could have taken in the circumstances. NSHC was simply adopting a cost-effective way of recovering amounts from Mr McIntyre to which NSHC was entitled which hitherto he had successfully avoided paying and which, given its responsibilities for social housing, NSHC may well not have been justified in expending further resources in seeking to recover from him. There is no evidence that Mr McIntyre did not have, or that NSHC should have concluded that he did not have, the resources to satisfy the condition. There is equally no evidence that NSHC had any reason to consider that the result of imposing the condition it did was likely to be anything more than the disappointment which those involved in the proposed mutual exchange would no doubt have felt if it did not proceed. In these circumstances to require Mr McIntyre to discharge his debt to NSHC before he was permitted to receive the benefit of a transfer which he wanted from it cannot possibly be said to be irrational in public law. Mr Paget’s assertion that the Claimants have discharged their obligations with respect to rent on the property, apparently with the assistance of housing benefit, is not disputed by the Defendant. But that cannot alter the conclusion that the decision was not unreasonable.[99]In the circumstances I do not need to resolve the question (referred to in paragraph [50] above) whether there are differences in the approach to the reasonableness of any balance to be struck under the Landlord and Tenant Act 1988 and in public law and the considerations to which regard may be had in each case if only because of the absence of any evidence in this case of any likely adverse effect on the Claimants or on the person with whom they wished to exchange homes of the condition imposed.[100]However, as I have mentioned, in my judgment the condition imposed on the consent given to the Claimants did not comply with the first principle identified by Lord Bingham in Ashworth Frazer Ltd v Gloucester City Council (with which any condition must comply when imposed on a permission to assign under a covenant not to assign without permission which is not to be unreasonably withheld). NSHC proceeded on the assumption that it could impose such a condition and it thereby erred in law and took into account a legally irrelevant consideration when deciding to impose it. Its decision to do so was accordingly unlawful in public law. That brings me to the question whether relief on this claim for judicial review should nonetheless be refused on the ground that there were, and are, alternative remedies available to the Claimants.

WHETHER RELIEF SHOULD BE REFUSED IN ANY EVENT

[101]Mr Grodzinski contended that the claim which the Claimants now advance should be dismissed in any event as judicial review is a remedy of last resort and there were, and are, alternative remedies available to them which they should have used. He relies on(a) the right which the Claimants had to bring a claim for breach of contract if the condition imposed was not “reasonable” given the terms of the tenancy and to bring proceedings under the Landlord and Tenant Act 1988 and(b) on the Claimants’ right to apply to the Independent Housing Ombudsman.[102]Normally the fact that a claimant has a suitable alternative remedy available is a reason why permission to claim judicial review should be refused. However permission to make this claim has already been granted. Accordingly Mr Grodzinski’s submission is in effect that relief should be refused as a matter of discretion in this case on that ground. There is no doubt jurisdiction to do so: see eg M Fordham Judicial Review Handbook 5th ed at [36.3.8]. The question is whether there is a good reason to do so in this case given that the points now raised were not raised by the Defendant when permission was sought either in the Acknowledgement of Service or at the hearing before Cranston J.

(i) proceedings by way of ordinary claim

[103]Mr Grodzinski’s submitted in effect that the issues in this case were all ones that fell to be dealt with as a matter of private law. By contrast Mr Paget contended that NSHC’s decision was “infused with public law elements” and that public law “can be part of a defence but not a claim”, so that in effect the claim in this case had to be advanced by judicial review.[104]There can be no doubt that an ordinary claim which only involves questions and matters arising under section 1 of the Landlord and Tenant Act 1988 is a suitable alternative remedy for a tenant who is refused permission for an assignment or only granted permission for it subject to a condition. Indeed it is a better remedy for such a claimant since the onus is on the landlord in such proceedings to show that his refusal of permission, or that any condition on which it may have been given, was reasonable; whereas on a claim for judicial review the onus is on the claimant to show that the landlord’s decision in that respect was unreasonable.[105]The practical problem is that in some cases there may be grounds on which a tenant may be able to impugn the landlord’s decision on “conventional public law” grounds which may raise additional considerations. In my judgment there will normally be no good reason why in such a case a tenant who has been refused permission to assign, or who has been given it subject to conditions, may not impugn the legality in public law of the decision to do so in an ordinary claim which may also deal with the legality of the decision in private law. Judicial review is a procedure. The application of substantive public law is not limited to cases in the Administrative Court. Nor is it limited to cases in which it is invoked as a defence. Mr Paget’s submission effectively seeks to invoke a rule of procedural exclusivity often sought to be located in O’Reilly v. Mackman [1983] 2 AC 237 and Cocks v Thanet District Council [1983] 2 AC 286. However, as Lord Steyn stated in Boddington v the British Transport Police [1999] 2 AC 143 at p172, “Since O'Reilly v. Mackman decisions of the House of Lords have made clear that the primary focus of the rule of procedural exclusivity is situations in which an individual's sole aim was to challenge a public law act or decision. It does not apply in a civil case when an individual seeks to establish private law rights which cannot be determined without an examination of the validity of a public law decision.” That is precisely what would be involved when an assured tenant of a registered social landlord seeks to establish his right to assign his tenancy and, if so, on what conditions by impugning a decision affecting it on public law grounds. If the decision is invalid, either the landlord will not have lawfully refused any permission within the relevant period in breach of his duty under section 1 of the 1988 Act or his consent will have been given subject to an invalid condition. Such a case does not involve a statutory relationship which happens to include a contractual element; it involves a contractual relationship which happens to possess a public law dimension: cf Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988 per Sedley LJ at [16]. Indeed, far from it being an abuse of process for a tenant to bring in one claim all his claims about his landlord’s decision on his application to exchange or assign, it would normally be contrary to the overriding objective for him not to do so. The claims will almost inevitably involve consideration of number of common elements. To bring only one claim will save expense and enable as many aspects of the case to be dealt with on one occasion as possible.[106]Had the question of alternative remedy been raised when permission to make this claim was sought, permission would no doubt have been refused. The question is whether relief should now be refused as a matter of discretion given that there has now been a hearing of the claim.[107]The question of alternative remedies appears only to have been raised by the Defendant for the first time in its amended detailed grounds in August 2009 and then only in relation to any claim on (what I consider to be) the (misconceived) basis that the Claimants had a claim in contract if the specific condition mentioned in the assured tenancy agreement was not reasonable as stated by that agreement. No mention was made of the position under the Landlord and Tenant Act 1988. On the other hand there is nothing to indicate that the Claimants gave any detailed thought to question of alternative remedies. There is no response to the Defendant’s contentions about the existence of alternative remedies in the Claimants’ skeleton argument for the hearing of this claim dated November 10th 2009.[108]The well established rule in respect of claims for judicial review is that “it is a cardinal principle that, save in the most exceptional cases, the jurisdiction will not be exercised where other remedies were available and have not been used”: per Sir John Donaldson MR R v Epping and Harlow General Commissioners ex p Goldstraw [1983] 3 All ER 257 at p262. That was applied by the Court of Appeal even after the Administrative Court had made a decision on the merits in R v Birmingham City Council ex p Ferrero Ltd [1993] 1 All ER 530. That judicial review is a remedy of last resort has been reiterated on numerous occasions notwithstanding the introduction of the Civil Procedure Rules. There is nothing exceptional in this case which would have made proceeding by means of an ordinary claim inadequate or inappropriate. Far from this claim being “infused with public law elements”, it is hard to identify anything in it which might realistically add anything material to any allegation that could be made in proceedings under the Landlord and Tenant Act 1988 that the imposition of the condition on its consent by NSHC was not reasonable.[109]Further there is no point in quashing the decision NSHC took in May 2007: the dwelling which the Claimants wished to become the tenants of in Corinthian Square as a result of the exchange proposed was apparently let to another person in June 2008. Any further application which the Claimants may make for an exchange will have to be dealt with by their new landlord on the merits as they exist when it falls to be considered. The only practical significance now of the decision in May 2007 is if the Claimants have any right to damages under section 4 of the Landlord and Tenant Act 1988. To establish that, if there has been a breach of a duty owed to them under that Act and if they have suffered any loss as a result, they will need to bring a claim in any event under that Act.[110]Accordingly in these circumstances the order to quash the decision in May 2007 and the order requiring the Defendant to consent to the exchange sought (which would in any event have been inappropriate) is refused.[111]No order requiring the Defendant to do, or not to do, anything in relation to any future application for mutual exchange is appropriate in any event given that the Defendant is not the Claimants’ landlord. (ii). a complaint to the ombudsman[112]In these circumstances I need not deal in any detail with Mr Grodzinski’s other contention that the Claimants could also have asked the Housing Ombudsman to investigate a complaint and that relief should in any event be refused on that ground. Had I not refused relief for the reasons mentioned above, I would not have accepted this submission. Under the relevant scheme the Ombudsman will not consider complaints which in his opinion “concern matters where proceedings have been issued or they have already been taken to a court or tribunal [and] where a complainant will have or has had the opportunity to raise them in the proceedings” or “are matters where the Ombudsman considers it quicker, fairer, more reasonable, and more effective to seek a remedy through the courts, other tribunal or procedure”: see paragraph 16(e) and (f) of the scheme. There is, therefore, no certainty that the Ombudsman would accept any complaint now made to him. Although Lord Woolf CJ said in R (Cowl) v Plymouth City Council [2002] 1 WLR 803 at [14], that the court should consider staying proceedings for judicial review where the issues might be resolved outside the litigation process, in my judgment it would have been contrary to the overriding objective to stay the claim now, given that the Defendant raised the point in August 2009 but then apparently did nothing to seek a stay of this claim before the hearing. At that stage from the Claimants’ point of view the only result of making a complaint to the Ombudsman, given the timescales on which it is indicated he may operate, might have been further delay in resolving a claim relating to a decision in May 2007.

CONCLUSION

[113]For the reasons given above, the condition which NSHC imposed on the consent it gave the Claimants for the exchange they proposed, that Mr McIntyre should first pay all the amounts outstanding under the order made against him by Sunderland County Court, was one which was not lawfully imposed. It was not one that had anything to do with the relationship of landlord and tenant in regard to the subject matter of the Claimants’ assured tenancy of the property as the amounts related to another dwelling, 78 Rockingham Road. It was a condition which could not be lawfully imposed as a matter of private law on any consent to an assignment by them which was not to be unreasonably withheld. NSHC proceeded on the assumption that it could impose such a condition and it thereby erred in law and took into account a legally irrelevant consideration when deciding to impose it. Its decision to do so was accordingly unlawful in public law.[114]NSHC’s decision was otherwise one that cannot be impugned in public law.[115]In the circumstances, and having regard to the fact that an alternative remedy in respect of the condition imposed was and is available to the Claimants by way of an ordinary claim, the relief sought in respect of NSHC’s decision on this claim for judicial review is refused. The Claimants’ claim for judicial review is accordingly dismissed.[116]In future claims concerning any decision to refuse permission to assign or exchange, or to grant such permission only on conditions, to which section 1 of the Landlord and Tenant Act 1988 applies should normally be brought by ordinary claim, even if they also include claims that the decision of the registered social landlord involved was unlawful as a matter of public law.

Cited in 6 later judgments