A recent decision by the Court of Appeal could be bad news for council tenants pursuing their right to buy. When single mother Dawn Benjamin tried to exercise her right to buy the home she grew up in, having acquired the tenancy from her mother, she lost out to overriding rights asserted by Manchester City Council.

The case concerned a six-bedroom property let by the Council on a secure tenancy to Ms Benjamin’s father and mother in 1979. It was occupied by the whole family of seven until 1983, when the father left. Ms Benjamin joined the Army in 1995 and had a successful career until she left in 2003 to care for her mother, who was seriously ill.

In January 2004, Ms Benjamin gave birth to a son and raised him as a single parent. In December that year, her mother died and she, by then the only adult occupant of the property, applied to succeed to the tenancy. After an initial dispute, the Council accepted the transfer.

However, in July 2005 the Council served notice to gain possession of the property under Schedule 2 of the 1985 Housing Act, on the grounds that the property was more extensive than was reasonably required by the tenant. In August, Ms Benjamin filed a right to buy application under the Act.

The Council’s response was to offer Ms Benjamin a two-bedroom property. Then in October 2005, it issued proceedings for possession of the original property and Ms Benjamin subsequently made a further application under the right to buy provisions of the Act. The case came to court in March 2007, following her application for an order requiring the Council to convey the property to her.

Various alternative properties were offered to Ms Benjamin. However, it was established during the hearing that these were all subject to a pending block transfer of Council properties to a housing association. It was likely that if she took one of these alternative tenancies, she would lose her right to buy. It was further stated that she intended to start fostering and so could make good use of a six-bedroom house. 

The judge decided that the Council’s possession claim was not reasonable on the grounds that the alternative properties offered were not suitable – the potential loss of the right to buy being the decisive point.

At appeal, it was held that the judge was wrong to take into account an irrelevant consideration – the transfer of the alternative properties to the housing association. It was felt that, although Ms Benjamin could lose her right to buy, this could not be considered decisive. The court needed to balance the rights of the tenant with the Council’s duty to deploy its housing stock effectively.

On this basis, the Council’s appeal was allowed and the possession order made. Ms Benjamin’s counter-claim was dismissed.

This decision demonstrates that the right to buy has its limitations and the courts will act to protect the rights of social landlords to manage their housing stock in accordance with their wider social obligations.