Policy – housing – discretion – fettering
A housing policy in respect of transfers which required a tenant to agree to discharge rent arrears, before any application for re-housing would be considered, was an unlawful fettering of the council’s discretion, since it allowed for no exceptions. The applicant was the secure tenant of a flat owned by the council. In 1987 she applied for a transfer to other council premises on medical grounds and was eventually awarded ‘medical category B transfer status’. Her application was then held in abeyance because of rent arrears. She made a further transfer application some 14 months later and was awarded ‘medical category A transfer status’, which gave her an overriding priority for re-housing on medical grounds. Guidelines additional to the council’s transfer policy provided that tenants with rent arrears seeking a transfer should be agreed only if agreement to pay current rent plus a regular contribution to reduce the arrears was obtained. The applicant’s solicitors wrote to the council to inquire about the transfer application and to make the point that an application should not be postponed on account of alleged rent arrears. In reply, the council wrote stating that, ‘as a result of arrears of rent,’ ‘her application for transfer will not be given active consideration’.
The Court held that the guideline was unlawful because it was stated in the form of a rule which allowed of no exceptions and thereby fettered the exercise of the council’s discretion. In this case the guideline excluded the taking into account of the applicant’s priority status, which was a relevant consideration.