judgement:
Section 28 of the Housing Act 1988 (the 1988 Act) identifies a measure of damages payable by a landlord to a residential occupier of premises whom he has unlawfully evicted from them.
Construction of the section is not straightforward.
On 25 September 2012 His Honour Judge Blunsdon, sitting in the Lambeth County Court, determined a claim for damages brought by Mr Loveridge against the London Borough of Lambeth (Lambeth).
Mr Loveridge had been a residential occupier of premises let to him by Lambeth.
The judge found that it had unlawfully evicted him from them.
By reference to the construction of it which he favoured, the judge awarded Mr Loveridge damages of 90,500 under section 28 as well as of 9,000 otherwise than under the section.
Lambeth appealed to the Court of Appeal against the judges award of damages under section 28.
On 10 May 2013, by a judgment delivered by Briggs LJ with which Arden LJ and Sir Stanley Burnton agreed, [2013] EWCA Civ 494, [2013] 1 WLR 3390, the court favoured a different construction of the section, which led it to order that Lambeths appeal be allowed, that the judges award under section 28 be set aside in its entirety but that the award of damages otherwise than under the section be increased to 16,400.
Against these orders Mr Loveridge now appeals.
In November 2002 Lambeth granted to Mr Loveridge a weekly tenancy of a flat at 19 Moresby Walk, London SW8.
The tenancy was secure within the meaning of section 79 of the Housing Act 1985.
The flat was on the ground floor and was self contained with one bedroom.
It was one of two flats in a purpose built two storey building and at all material times the flat upstairs, namely 20 Moresby Walk, was also subject to a secure tenancy.
On 9 July 2009 Mr Loveridge went to Ghana, from where he did not return until 5 December 2009.
He was in breach of a term of the tenancy agreement which required him to notify Lambeth of any absence from the flat for more than eight weeks.
But he continued to pay the rent.
On 22 September 2009, believing that he had died, Lambeth effected forcible entry to the flat; took possession of it by changing the locks; and left a notice to quit, expressed to expire on 26 October 2009.
At around that expiry date it also cleared out his belongings and disposed of them.
Two days after his return to England, but when he was unable to prevent it, Lambeth let the flat to somebody else.
The judge rejected Lambeths contention that prior to 22 September 2009 Mr Loveridge had ceased to occupy the flat as his principal home and that his tenancy had therefore ceased to be secure.
It was on that basis that the judge held Lambeths eviction of him to have been unlawful.
It was agreed that his damages in respect of its trespass to his goods amounted to 9000; and so it was in respect of their trespass that the judge added 9,000 to his award of 90,500. 3.
The parties further agreed that, at common law, the damages for any unlawful eviction of Mr Loveridge from the flat during the subsistence of a secure tenancy amounted to 7,400.
Mr Loveridge contended, however, that he was entitled to a higher sum by way of damages under sections 27 and 28 of the 1988 Act and he conceded that, if so, he was precluded by section 27(5) from also receiving damages at common law in respect of the eviction. 4.
The main purpose behind the 1988 Act was set out in a White Paper, Cm 214, entitled Housing: The Governments Proposals and presented to Parliament in September 1987.
That purpose, set out in Chapter 3, was to stimulate the availability of rented accommodation in the private sector by making lettings more attractive to private landlords.
This was to be achieved by provisions which extended the ambit of two types of tenancy which had been introduced by sections 56 and 52 of the Housing Act 1980.
The first was the assured tenancy in which, when letting certain types of property, the landlord had been entitled to extract a market rent rather than a lower, fair, rent, albeit that his entitlement to recover possession at the end of the term had been restricted.
The second was the protected shorthold tenancy in which, albeit at risk of a reduction of the contractual rent to a fair rent, the landlord had been entitled to recover possession at the end of the term.
The 1988 Act duly extended the circumstances in which an assured tenancy could be granted; and it amended the description of a protected shorthold tenancy to an assured shorthold tenancy and changed its nature so as to enable the landlord to charge a market, rather than a fair, rent as well as to remain unshackled by any significant security of tenure on the part of the tenant at the end of the contractual term. 5.
But the government, when introducing the bill which became the 1988 Act, and Parliament, when enacting it, both realised that it created a danger.
It was that some unscrupulous landlords, tempted by the prospect of entering into new tenancies on terms much more favourable to themselves (or of selling their properties with vacant possession in what in 1988 was a spiralling real property market), would seek to drive out such of their existing tenants as, under the Rent Act 1977, enjoyed protection in respect both of rent and of security of tenure.
So, in the White Paper, the government wrote: 3.17 It is important that existing tenants whose Rent Act rights will be preserved should be protected against the minority of landlords who may be prepared to harass them in order to obtain vacant possession and to relet at higher rents.
The Government therefore proposes to increase the existing statutory protection by creating a new offence where the landlord harasses the tenant .
The Government also proposes to strengthen the civil law to enable tenants who have been evicted illegally or forced out by harassment to claim greater compensation.
This would be an important additional deterrent to harassment. 6.
The facility for the unlawfully evicted tenant to claim enlarged compensation was duly provided in sections 27 and 28 of the 1988 Act, which are in Chapter IV of Part 1 of it.
The chapter is entitled Protection from Eviction.
Section 27 is entitled Damages for unlawful eviction.
Subsection (1) provides: 7.
This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as the landlord in default) unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises. 8. 9.
Section 27(2) provides that the section also applies if, in summary, the residential occupier yields occupation as a result of acts of harassment on the part of a landlord who knew that they were likely to have that result.
Section 27(3), (4) and (5) provides: (3) Subject to the following provisions of this section, where this section applies, the landlord in default shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 28 below. (4) Any liability arising by virtue of subsection (3) above (a) shall be in the nature of a liability in tort; and (b) subject to subsection (5) below, shall be in addition to any liability arising apart from this section (whether in tort, contract or otherwise). (5) Nothing in this section affects the right of a residential occupier to enforce any liability which arises apart from this section in respect of his loss of the right to occupy premises as his residence; but damages shall not be awarded both in respect of such a liability and in respect of a liability arising by virtue of this section on account of the same loss. 10.
Section 27(6) provides that the landlord is not liable to pay damages under subsection (3) if in certain circumstances the occupier is reinstated in the premises. 11.
Section 27(7) gives the court power to reduce damages under subsection (3) if, in summary, the occupiers conduct prior to the eviction makes it reasonable to do so or if the landlord had offered to reinstate him.
The trial judge declined Lambeths invitation to him to exercise this power.
Although in a second ground of appeal Lambeth challenged his ruling in this respect, and although the Court of Appeal noted that in the light of its conclusion on the first ground the second ground did not need to be determined, Lambeth no longer pursues it even in the event that Mr Loveridges appeal to this court were to succeed. 12.
Section 27(8) provides the landlord with a defence to liability for damages under subsection (3) if, in summary, he proves that, when he deprived the occupier of occupation, he believed, and had reasonable cause to believe, that the occupier had ceased to reside in them.
Lambeth raised this defence before the trial judge but he rejected it and Lambeth did not appeal against his ruling in this respect. 13.
Section 27(9) provides definitions which apply both to that section and, by virtue of section 28(4), also to section 28.
Two of the definitions are material. (a) The first, at (a), is the definition of residential occupier, which is to have the meaning set out in section 1 of the Protection from Eviction Act 1977, namely a person occupying premises as a residence, whether (as in the case of Mr Loveridge) under a contract or by virtue of any enactment or rule of law giving him the right to remain there. (b) The second, at (b), is the definition of a residential occupiers right to occupy, which is to include any restriction on the right of another person to recover possession of the premises in question. 14.
Section 28 is entitled The measure of damages.
Its relevant provisions are as follows and, since the issue surrounding its construction primarily relates to the terms of subsections (1)(a) and (3)(a), I will set them in bold: (1) The basis for the assessment of damages referred to in section 27(3) above is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right.
In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage.
For the purposes of the valuations referred to in subsection (1) above, it shall be assumed (a) that the landlord in default is selling his interest on the open market to a willing buyer; (b) . (2) (3) Although section 27(3) describes the damages payable to the tenant under section 28 as being in respect of his loss of the right to occupy, it is clear that they are designed to yield to him not the amount of his loss but, exceptionally, the amount of the gain which the landlord would otherwise have achieved by reason of the eviction. 15.
It is clear that the principal target of sections 27 and 28 of the 1988 Act was the unscrupulous private landlord saddled with a tenancy protected, in terms both of rent and of security, by the Rent Act 1977 and therefore created prior to 15 January 1989, after which, as a result of section 34 of the 1988 Act, such a tenancy could not generally be created.
Local authority landlords rarely perpetrate unlawful evictions of their tenants.
When they do so, it is usually, as here, as a result of honest misjudgement and scarcely ever (although it was found to have occurred in AA v London Borough of Southwark [2014] EWHC 500 (QB)) as a result of any deliberate intention to act unlawfully.
A local authority will not be motivated to seek to deploy its housing stock for gain.
Nevertheless the words of section 27 are wide enough to cover an unlawful eviction on the part of a local authority; and when, as in the case of tenancies from the Crown, Parliament wished to exclude the operation of section 27 (and thus of section 28), it expressly so provided: section 44(2)(a).
So it is agreed that the sections apply to an unlawful eviction of a tenant by a local authority. 16.
Section 28(1) of the 1988 Act requires the court to make two valuations, namely (a) and (b), as at the time immediately prior to the unlawful eviction.
Both valuations are of the landlords interest, which, by virtue of subsection (2), means his interest in the building in which the demised premises are comprised even if it contains other premises.
In the present case it was therefore agreed that the valuations were to relate to Lambeths interest in the whole two storey building at Moresby Walk, including the upstairs flat. 17.
The two valuations are to be determined on different assumptions.
Valuation (a) is to be based on the assumption that the tenant continues to have the same right to occupy the premises as he had prior to his eviction.
Indeed, in the light of the definition in section 27(9)(b) of the Act, the assumption that he continues to have the same right to occupy includes an assumption that he continues to enjoy the benefit of the same restrictions on the landlords right to recover possession as he enjoyed prior to the eviction.
Valuation (b), by contrast, is to be based on the assumption that the tenant ceased to have that right, including that he ceased to enjoy that benefit. 18.
The valuation exercises mandated by section 28(1)(a) and (b) of the 1988 Act would have been straightforward but for the further assumption which is mandated by section 28(3)(a).
This provides that, for the purposes of both valuations, it shall be assumed that the landlord is selling his interest on the open market to a willing buyer.
The interface between section 28(3)(a) and section 28(1)(a) is at the heart of the appeal. 19.
Of course the notion that Lambeth would put the building at 19 and 20 Moresby Walk on the open market for sale is fanciful in the extreme.
It could not dispose of the building without the consent of the Secretary of State: section 32(2) of the Housing Act 1985, as inserted by section 6(2) of and Schedule 1 to the Housing and Planning Act 1986.
And, in the event of its proposed disposal to a private sector landlord, Lambeth would be required to consult the tenants and the Secretary of State could not give his consent if a majority of them had objected to it: paragraphs 2, 3 and 5 of Schedule 3A to the 1985 Act.
It is agreed, however, that these formidable obstacles to sale are irrelevant.
For the mandatory assumption is that Lambeth is indeed selling its interest on the open market.
As Lord Donaldson of Lymington, Master of the Rolls, said in Tagro v Cafane [1991] 1 WLR 378, 387: the whole concept of the landlord selling his interest on the open market to a willing buyer assumes that he can sell it on the open market to a willing buyer 20. 21.
It is further agreed that the least absurd hypothesis would indeed be of a sale to an ordinary private landlord rather than, say, to another local authority or to a private registered provider of social housing.
The ordinary private landlord would be interested in purchasing the building for a simple reason: that, in his hands, the two sets of premises there could both generate market rents.
Upon sale to him the secure tenancies held by the two tenants immediately prior thereto would cease to exist because the landlord condition of a secure tenancy would no longer be satisfied: sections 79 and 80 of the Housing Act 1985.
Instead section 1(1) of the 1988 Act would convert the tenancies to being assured and would therefore confer on the landlord the power to bring the rents up to market level pursuant to sections 13 and 14 of that Act.
It now becomes possible to explain the dispute between the parties about the nature of the valuations mandated by section 28 of the 1988 Act. 22.
Mr Jenner was the chartered surveyor and valuer whom both parties initially instructed to provide valuations. (a) In respect of valuation (a), his instructions, once refined, were to value the building as at 22 September 2009 on the assumption that both flats were subject to secure tenancies.
By reference to a capitalisation of the rents payable under the tenancies, Mr Jenners valuation (a) was in the sum of 123,000. (b) In respect of valuation (b), his instructions were to value the building as at 22 September 2009 on the assumption that the owner had vacant possession of the downstairs flat but that the upstairs flat was subject to a secure tenancy.
By reference to the market value of properties comparable to the downstairs flat and to a capitalisation of the rent payable for the upstairs flat, Mr Jenners valuation (b) was in the sum of 213,500. (c) So the difference between Mr Jenners valuations (a) and (b) was 90,500, being the sum which the trial judge awarded to Mr Loveridge by way of damages under section 28. 23.
Mr Robson was the chartered surveyor and valuer whom, with the courts permission, Lambeth instructed to provide valuations notwithstanding its prior joint instruction of Mr Jenner.
It asked him to provide them on three different assumptions, of which it is only to the third that I need to refer, namely a sale on 22 September 2009 to an ordinary private landlord. (a) (b) In respect of valuation (a), his instructions were therefore to value the building as at 22 September 2009 on the assumption that both flats had then become subject to assured tenancies.
By reference to market comparables, Mr Robsons valuation (a) was in the sum of 304,000.
In respect of valuation (b), his instructions were to value the building as at 22 September 2009 on the assumption that the owner had vacant possession of the downstairs flat but that the upstairs flat had then become subject to an assured tenancy.
By reference to market comparables, Mr Robsons valuation (b) was again in the sum of 304,000.
For his opinion, not challenged by Mr Jenner, was that in 2009 there was no difference between the value of 19 Moresby Walk if bought with vacant possession and if bought subject to an assured tenancy. (c) So the difference between Mr Robsons valuations (a) and (b) was nil, being the sum which the Court of Appeal considered to be Mr Loveridges entitlement under section 28. 24.
The issue is, therefore, whether the valuations of both flats (for valuation (a)) and of the upstairs flat (for valuation (b)) should be conducted on the assumption that they are subject to secure tenancies or to assured tenancies. 25.
Lambeths case is primarily constructed upon section 28(3)(a) of the 1988 Act, which requires the assumption of a sale by the landlord on the open market.
It contends that a market valuation of property must take into account a change in the use which a purchaser might make of the property and for which he may therefore make allowance in his offer.
In this respect it cites the judgment of the Judicial Committee of the Privy Council in Raja Vyricherla Narayana Gajapathiraju v Revenue Divisional Officer, Vizagapatam [1939] AC 302, in which it was held that the market value of land subject to compulsory purchase should include such extra value as might be paid for the facility to collect fresh water which was generated by a spring on the land but which was presently going to waste.
Lord Romer, at p 313, described it as self evident that the land was to be valued by reference not merely to the use to which it was being put but to the uses to which it was reasonably capable of being put. 26.
With respect, Lord Romers proposition remains self evident.
But the exercise mandated by section 28 of the 1988 Act is more complicated than an identification of market value.
The assumption of a sale on the open market is for the purposes of the valuations referred to in subsection (1), in which other assumptions are mandated, namely (a) that the tenant continues to have the same right to occupy the premises as he had immediately prior to the eviction and, alternatively, (b) that he has ceased to have that right. 27.
What was the right which Mr Loveridge had to occupy the downstairs flat immediately prior to the eviction? It was the right of a secure tenant.
Lambeth correctly argues that the consequence of a notional sale to a private landlord would be to convert the status of Mr Loveridges tenancy (and indeed that of the tenancy upstairs) from secured to assured.
But in my view the notional exercise mandated by subsection 3(a) of section 28 does not extend to making the consequential adjustments to the nature of Mr Loveridges right (or indeed that of the tenant upstairs) consequent upon sale.
For that is barred by the words of subsection 1(a).
Within this highly artificial exercise, regard to the effect of one assumption is halted by the terms of another. 28.
The decision of the Court of Appeal in Osei Bonsu v Wandsworth LBC [1999] 1 WLR 1011 relates to another rare example of an unlawful eviction of a secure tenant by a local authority.
As here, it was as a result of the local authoritys honest misjudgement.
Under section 28 of the 1988 Act the trial judge awarded the tenant damages of 30,000.
The court upheld Wandsworths argument that the award should have been reduced by two thirds pursuant to section 27(7).
But Wandsworth also sought to challenge the figure of 30,000, which, as it had earlier agreed, represented the difference between the value of the house subject to a secure tenancy and its value with vacant possession.
The court held that it was too late for Wandsworth to resile from the agreement.
But it noted both Wandsworths proposed contention, which, but for the lateness, it regarded as strong, and the tenants proposed rebuttal of it, which it regarded as weak.
Wandsworths proposed contention was that the tenants secure tenancy was held only jointly with his estranged wife and that therefore Wandsworth, which was in the process of rehousing her, had only to persuade her to serve it with a valid notice to quit for the tenancy to come to an end.
There was therefore a feature of his tenure prior to the eviction which was unrelated to the notional sale and yet which made it extremely fragile.
The tenants proposed rebuttal was that the hypothesis was of a sale by Wandsworth and that no purchaser would be likely to enjoy the same power of persuasion over the wife as Wandsworth enjoyed.
In a judgment with which the other members of the court agreed, Simon Brown LJ said at p 1022: The clear answer to this argument, I am satisfied, lies in [Wandsworths] submission that what is being valued is the interest of the landlord not the abstract interest of a notional willing buyer.
Although the concept of a willing buyer helps to fix the respective valuations, one postulates the landlords continuing ownership in fact.
Although it may take time to understand his last sentence, Simon Brown LJ there expressed the view, with which I respectfully agree, that the likely effect of a sale upon the subsistence or otherwise of the secure tenancy should not be brought into the valuation exercise mandated by section 28.
Briggs LJ in his judgment under appeal.
He said in para 28: Mr Loveridges rights of occupation had, from the very grant of his secure tenancy, been vulnerable to being downgraded on a sale by his local authority landlord to a private landlord.
It was a vulnerability inherent in the nature of his rights.
The Lord Justice rightly put aside the extreme unreality of any such proposed sale.
But he endorsed a valuation under section 28(1)(a) which was based upon a notional downgrading of the right which Mr Loveridge had prior to the eviction, namely the right of a secure tenant, so as to become the right only of an assured tenant.
In my view his endorsement was wrong: for, as His Honour Judge Blunsdon had concluded in a judgment of enviable clarity, section 28(1)(a) requires the basis of the valuation to be that Mr Loveridge continues following the eviction to have the same right to occupy as he had prior to the eviction.
I therefore propose that the appeal should be allowed and the judges order restored. 30.
Parliament might wish to revisit the application of section 27, and therefore of section 28, of the 1988 Act to unlawful evictions on the part of local authorities.
No doubt all reasonable means of dissuading them from making unlawful evictions, whether by misjudgement or otherwise, should be in place.
But the facts are that Lambeth did not realise a capital gain, and never aspired to realise a capital gain, as a result of its eviction of Mr Loveridge; and that its intention was always to re let the flat and that, once it did so, even its notional gain was eliminated.
In such circumstances it seems wrong that, by reference to a calculation of its notional gain, the law should require payment to Mr Loveridge out of public funds in an amount which is 12 times greater than that of his loss. 29.
Nobody could have put Lambeths argument more persuasively than did

dataset_name: UK-Abs

summary:
Section 28 of the Housing Act 1988 The Housing Act 1988 (the 1988 Act) was brought in with a view to stimulating the availability of rented accommodation in the private sector; it allowed landlords to let new tenancies on terms more advantageous to themselves [4].
Parliament included safeguards to deter unscrupulous landlords from evicting existing tenants with protected tenancies [15].
Section 27 of the 1988 Act provides the right to claim damages for unlawful eviction [6].
Section 28 sets out the method by which such damages are calculated, being the difference in value between two alternative calculations of the landlords interest in the building at the time immediately prior to the unlawful eviction: (1) The basis for the assessment of damages [for unlawful eviction] is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right. (2) In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage. (3) For the purposes of the valuations referred to in subsection (1) above, it shall be assumed (a) that the landlord in default is selling his interest on the open market to a willing buyer Mr Loveridges flat at 19 Moresby Walk From November 2002 Mr Loveridge lived in the downstairs flat at 19 Moresby Walk, a two storey house.
Both his flat and the upstairs flat were owned by the London Borough of Lambeth (Lambeth) and let under secure tenancies conferring certain statutory protections.
From July to December 2009 Mr Loveridge made a trip to Ghana.
While he was away, Lambeth changed the locks on his flat and cleared his possessions, mistakenly believing that he had died.
Two days after he returned to the UK, his flat was rented to somebody else [2].
Mr Loveridge sued Lambeth for damages.
The parties approaches to damages under section 28 Mr Loveridge and Lambeth each instructed a surveyor to value Lambeths interest in 19 Moresby Walk for the purposes of subsections 28(1)(a) and (b).
Mr Loveridges surveyor calculated valuation (a) on the basis that 19 Moresby Walk was sold with both the upstairs and downstairs flats subject to secure tenancies.
He calculated valuation (b) on the basis that 19 Moresby Walk was sold with vacant possession of the downstairs flat but with the upstairs flat subject to a secure tenancy.
The difference in value was 90,500 [22].
Lambeth adopted a different approach.
It relied on subsection 28(3)(a), which requires both valuations (a) and (b) to be calculated on the assumption that the property is sold on the open market to a willing buyer [18].
If 19 Moresby Walk had in fact been sold on the open market, say to a private landlord, the secure tenancies (which do not apply to private landlords) would have been converted into assured tenancies, thus allowing the new landlord to bring the rents up to market level [20].
Lambeths surveyor therefore conducted valuation (a) on the basis that both flats were subject to assured tenancies.
He concluded that valuation (b) produced the same figure as valuation (a) because the downstairs flat with vacant possession would be worth the same as if it were subject to an assured tenancy [23].
The procedural history At the hearing in the Lambeth County Court, the judge found that Mr Loveridge had been unlawfully evicted.
He preferred Mr Loveridges approach to the section 28 valuation exercise.
On 25 September 2012 he awarded Mr Loveridge90,500 under section 28 and 9,000 at common law in respect of the trespass to his goods [2].
Lambeth appealed against the quantum of damages.
The Court of Appeal accepted Lambeths argument and 10 May 2013 set aside the section 28 award [1].
It ordered Lambeth to pay 7,400 in damages at common law for unlawfully evicting Mr Loveridge, and, as before, 9,000 for trespass to goods.
The Supreme Court unanimously allows the appeal and restores HHJ Blunsdons order for damages.
Lord Wilson (with whom Lord Neuberger, Lord Sumption, Lord Carnwath and Lord Toulson agree) gives the judgment.
The words of section 27 of the 1988 Act are wide enough to cover local authority landlords as well as public landlords, even though local authority landlords rarely perpetrate unlawful evictions of their tenants [15].
Section 28(1) requires the court to make two valuations, namely (a) and (b), of the landlords interest [16].
Valuation (a) is based on the assumption that the tenant continues to have the same right to occupy the premises, and the landlord continues to be subject to the same restrictions on recovering possession, as before the eviction occurred.
Valuation (b) is based on the assumption that the tenants right to occupy and the restrictions on recovering possession have ceased [17].
The issue in this case was whether the valuation of both the upstairs and downstairs flats at 19 Moresby Walk (for valuation (a)) and of the upstairs flat (for valuation (b)) should be conducted on the assumption that they were subject to secure tenancies or to assured tenancies [24].
The assumption of a sale on the open market (subsection 28(3)(a)) is for the purposes of the valuations at subsection 28(1), in which other assumptions are mandated, namely (a) that the tenant continues to have the same right to occupy the premises as he had immediately prior to the eviction and, alternatively, (b) that he has ceased to have that right [26].
Prior to eviction, Mr Loveridges right to occupy the downstairs flat was that of a secure tenant.
The notional exercise required by subsection 28(3)(a) does not extend to making adjustments to the nature of the tenants rights that are consequent upon sale.
Such adjustments are barred by subsection 28(1)(a) which stipulates that the same right continues [27].
The likely effect upon a secure tenancy of a sale to a private landlord should not therefore be taken into account [28].


judgement:
The appellant brought a claim for judicial review of a decision of the respondent, on 21 February 2012, to approve a Revenue Budget for 2012/13 in relation to the provision of youth services.
In his claim form he applied for declarations that the respondent had failed to comply with section 149 of the Equality Act 2010 and section 507B of the Education Act 1996 and for an order quashing the decision to approve the budget.
The claim was dismissed at first instance (Wyn Williams J) and the appellant was ordered to pay the respondents costs, subject to a proviso against enforcement of the order without further permission of the court.
He obtained limited permission to appeal on two grounds.
The Court of Appeal (Moore Bick, Rimer and Underhill LJJ) decided the two substantive issues in his favour but did not grant him any relief, dismissed his appeal and ordered him to pay half of the respondents costs of the appeal.
This appeal is about the form of the Court of Appeals disposal of the matter.
The appellant submits that since the court held that the respondent had failed in its statutory obligations, it should have made a declaration to that effect and should have made an order for costs in his favour.
The underlying facts and issues are set out in the very thorough judgment of Wyn Williams J, [2012] EWHC 1928 (Admin), and recapitulated, so far as was necessary, in the judgment of the Court of Appeal delivered by Rimer LJ, [2013] EWCA Civ 1320.
For present purposes a briefer outline will be sufficient.
The appellant was born on 17 April 1991.
He suffers from ADHD and has other difficulties.
He was therefore a qualifying young person within the meaning of section 507B of the 1996 Act, which required the respondent, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure time activities for the improvement of his well being.
Section 507B(9)(b) required the respondent in exercising its functions under that section to secure that the views of qualifying young persons in the authoritys area are taken into account.
The appellants disability was also a protected characteristic which brought into play, in relation to him, the public sector equality duty (PSED) contained in section 149 of the 2010 Act.
The section required the respondent to have due regard to the statutory equality needs in the exercise of its functions.
By its decision on 21 February 2012 the respondent approved a reduction in its youth services budget for 2012/13 of 364,793.
The appellant was concerned about the impact which this was likely to have on the provision of services for young persons with disabilities and, in particular, on a weekly youth club for vulnerable young people which he used to attend.
At first instance wide ranging criticisms were made of the way in which the respondent had reached its decision.
They were all rejected.
At the end of the hearing and before giving judgment, the judge asked counsel for written submissions on relief if he found that there had been illegality.
The note on relief provided by Mr David Wolfe QC and Ms Aileen McColgan on behalf of the appellant stated that he asked for a quashing order.
No mention was made of alternative relief in the form of a declaration.
Ms Jane Oldham noted the omission in her response on behalf of the respondent, observing that it appears that no declaratory relief is sought and D takes it that the claim for declaratory relief [in the claim form] is abandoned, since otherwise C would, in response to the request of Wyn Williams J, have set out the terms of any declaratory relief sought.
Mr Wolfe and Ms McColgan provided a written reply which again made no reference to asking for declaratory relief.
In view of the judges rejection of the challenges to the legality of the respondents approval of the budget, the question of relief did not arise for decision, but the judge rejected an argument by the respondent that the provisions of the Local Government Finance Act 1992 would have prevented him from quashing the decision to approve the budget.
He said that if he had been persuaded that the respondent had acted unlawfully, it would have been open to him to grant any remedy which was appropriate.
The grounds on which the appellant was given leave to appeal were that the respondent had failed in its equality duty (PSED) under section 149, because although equality impact assessments (EIAs) had been carried out relating to the impact of the budgetary cuts, the EIAs had not been provided to the members who took the decision (and the judge had been wrong to infer that the members had read them merely because they had been told how they could be accessed); and that it had failed in its consultation duty under section 507B(9)(b) because there was no evidence of consultation with young people before making the decision to cut the budget (as distinct from meetings with management committees of young peoples organisations to explain to them where the axe would fall).
These grounds were developed in the appellants skeleton arguments in the Court of Appeal.
As to relief, it was submitted that the decision under challenge should be quashed.
No alternative submission was made about declaratory relief.
The judgment of the Court of Appeal was given on 6 November 2013.
The court upheld the appellants argument under section 149.
It expressed some doubt about whether section 507B(9) was applicable, but this was not disputed by the respondent.
Accordingly the court proceeded on the assumption (but without deciding) that the section was applicable, and on that assumption it upheld the appellants argument.
However, the court refused to make the quashing order which was sought.
Rimer LJ said that although in theory a quashing order could be made, the court could not see how this could be done without quashing the respondents decision to approve the entire revenue budget for the financial year 2012/13, which had expired nearly three months before the appeal was heard.
He concluded: 94.
It is now too late to unwind what has been done.
Judicial review is a discretionary remedy and, even though we have accepted the substantive points which Mr Hunt has advanced, we are of the firm view that he ought not to be granted the quashing order for which he asks.
To do so would be detrimental to good administration. 95.
We refuse to grant any relief to Mr Hunt and therefore dismiss the appeal.
No mention was made in the judgment about whether the order should include a declaration to reflect what was said in it about the respondents failure to discharge its statutory obligations, no doubt because the subject had never been raised on behalf of the appellant and in any event it would be open to counsel to make suggestions as to the appropriate form of order in the light of the matters determined in the judgement.
It would have also have been open to counsel to raise the matter of declaratory relief on receiving the judgment in draft if it was something which they had meant to raise.
Counsel for the appellant did neither.
Counsel for the respondent prepared a draft order stating that the appeal was dismissed, and counsel for the appellant stated in written submissions that the parties were agreed on the order except in relation to costs.
I would reject the appellants complaint that the Court of Appeal was wrong not to make a declaration of its own initiative.
The complaint is redolent of hindsight.
It is no doubt triggered by the courts decision on costs, but they are separate matters.
The judgment of the Court of Appeal itself ruled that the respondent acted unlawfully, and the authority of the judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect.
However, in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the courts finding.
In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with an understandable sense of injustice.
That said, there is no must about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it.
The appellant is on much stronger ground in relation to costs.
The submissions to the Court of Appeal on his behalf made no reference to the costs at first instance, and it was remiss to agree to an order that the appeal should be dismissed, when there were obvious grounds for arguing that in relation to costs the judges order should be set aside and replaced by an order in the appellants favour.
However, in relation to the costs in the Court of Appeal, the points were properly made that the appellant had succeeded on both the issues as to the respondents statutory duty; that there were wider lessons for local authorities to learn from the case about their duties under each of the relevant sections; that the lapse of time, as a result of which the relevant financial year had now passed, was not the fault of the appellant; and that to deny the appellant his costs would be likely in practice to dissuade claimants from pursuing legitimate public law challenges.
The respondent submitted that the appellant had not in substance been successful; that he had not obtained any result of any practical utility; and that he had known about the practical problems which would be involved in attempting to unwind the budget from evidence submitted by the respondent before the original hearing.
Delivering the reasons for the courts judgment on costs, ([2013] EWCA Civ 1483) Rimer LJ said that by the time that the appeal came on for hearing, it was far too late to consider granting any relief (by which he must have had in mind a quashing order), even if as to which the court had doubts it might have been appropriate for relief to be granted a year earlier when the matter was before Wyn Williams J. He continued: 5.
In these circumstances, the court considers that it would be wrong in principle to award any costs to Mr Hunt.
The appeal proved to be of no practical value to him; and, in the courts view it was always one which was destined to fail. 6.
As the council was the successful party in the appeal, the court considers that it is in principle entitled to its costs.
On the other hand, the court has regard to the fact that the council resisted the appeal not only on the basis that this was not a case for relief, but also on the two substantive grounds on which it lost.
Its resistance on those two grounds increased the costs of the appeal.
We regard that consideration as pointing away from an order awarding the council all of its costs.
The court concluded that the respondent should be entitled to recover half of its costs of the appeal.
The discretion of a court in a matter of costs is wide and it is highly unusual for this court to entertain an appeal on an issue of costs alone.
But the Court of Appeal said that it reached its decision as a matter of principle, treating the respondent as the successful party.
In adopting that approach, I consider that the court fell into error.
The rejection of the respondents case on the two issues on which the appellant was given leave to appeal was of greater significance than merely that the respondent had increased the costs of the appeal by its unsuccessful resistance.
The respondent was successful only in the limited sense that the findings of failure came too late to do anything about what had happened in the past, not because the appellant had been slow to raise them but because the respondent had resisted them successfully until the Court of Appeal gave its judgment.
The respondent was unsuccessful on the substantive issues regarding its statutory responsibilities.
There are also wider public factors to consider.
Public law is not about private rights but about public wrongs, as Sedley J said in R v Somerset County Council, Ex p Dixon [1998] Env LR 111 when considering a question of standing.
A court may refuse permission to bring a judicial review claim if it considers the claimant to be a mere meddler or if it considers that the proceedings are unlikely to be of sufficient significance to merit the time and costs involved.
But in this case the court considered that the issues were of sufficient significance to give permission.
And the ruling of the court, particularly under section 149, contained a lesson of general application for local authorities regarding the discharge by committee members of the councils equality duty.
If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs.
I cannot see that the fact that in this case the determination of illegality came after it was too late to consider reopening the 2012/13 budget provided a principled reason for making the appellant pay any part of the respondents costs.
On the contrary, for the reasons stated the appellant was in principle entitled to some form of costs order in his favour.
The issues raised by the appellant at first instance were considerably wider than the issues on which he was given permission to appeal.
They included, for example, a far reaching challenge to the adequacy of the respondents EIAs.
This challenge required detailed rebuttal by the respondent.
The appellant also persisted in seeking an order to quash the decision approving the budget when that was unrealistic.
Those are reasons for limiting the order for costs in his favour.
Logically it might be said that a distinction should be drawn between the costs at first instance and in the Court of Appeal to reflect the different issues, but each hearing occupied the court for one day and the assessment can only be broad brush.
I would allow the appeal, set aside the Court of Appeals order and substitute an order that the appellant should recover two thirds of his costs both at first instance and in the Court of Appeal.
Having succeeded in reversing the costs orders made by the courts below, the appellant is entitled to his reasonable costs of so doing.
However, a significant proportion of his written and oral argument before this court was directed to the question of a declaration.
On that issue his argument had no merit when examined against the way that his case was presented in the lower courts, which only emerged fully from the submissions of the respondent.
As at present advised, I would order that the appellant should recover two thirds of his costs in this court, to be assessed if not agreed; but the order should not be drawn up for seven days, during which time either party may, if so advised, make written submissions as to why a different order should be made.

summary:
Mr Aaron Hunt, born on 17 April 1991, suffers from ADHD, learning difficulties and behavioural problems.
As a result, North Somerset Council (the Council) are statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure time activities for the improvement of his well being.
On 21 February 2012, the Council made a decision to approve a reduction of 364,793 from its youth services budget for 2012/2013.
Mr Hunt, concerned about the impact this would have on the provision of services for young persons with disabilities, brought judicial review proceedings of that decision.
He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under section 149 of the Equality Act 2010 to have due regard to the statutory equality needs of disabled individuals.
He sought a declaration that the Councils decision was unlawful and an order that the decision be quashed.
At the end of the High Court hearing, but before giving judgment, Wyn Williams J asked the parties barristers for written submissions on relief in the event that he found in favour of Mr Hunt.
The note provided by Mr Hunts barristers stated that he sought a quashing order but made no reference to a declaration.
Ultimately, Wyn Williams J rejected Mr Hunts challenges to the legality of the decision.
Mr Hunt was ordered to pay the Councils costs, subject to a proviso against enforcement of the costs order without further permission of the Court.
The Court of Appeal allowed Mr Hunts appeal on both grounds.
It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year.
It also ordered him to pay half of the Councils costs.
Mr Hunts barristers did not make alternative submissions about declaratory relief so no mention was made of this in the Court of Appeals judgment.
Mr Hunts barristers did not raise this omission on receiving the judgment in draft and did not make suggestions as to the appropriate form of the order in light of the judgment.
The Councils barristers prepared a draft order stating that the appeal was dismissed.
Mr Hunts barristers stated in written submissions that the parties were agreed on the order except in relation to costs.
Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made: (1) a declaration that the Council had failed in its statutory obligations; and, (2) an order for costs in his favour.
The Supreme Court unanimously allows the appeal in relation to costs but dismisses it in relation to declaratory relief.
Lord Toulson delivers the judgment of the Court.
Declaratory relief Lord Toulson rejects Mr Hunts argument that the Court of Appeal should have made a declaration of its own initiative.
The judgment of the Court of Appeal itself contained a ruling that the Council acted unlawfully and the authority of its judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect.
A court is not required to make declaratory orders where, although a finding of illegality has been made, it is not asked to make a declaratory order by a partys experienced legal representatives [12].
Costs In relation to costs, although courts have wide discretion in this matter, the Court of Appeal fell into error by treating the Council as the successful party.
As the Court of Appeal rejected the Councils case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunts part.
It was unsuccessful on the substantive issues regarding its statutory responsibilities [15].
Indeed, the Court of Appeal judgment contained a lesson of general application for local authorities regarding the discharge by committee members of the Councils equality duty.
In such circumstances, where a local authority is shown to have acted unlawfully, some good reason would have to be shown why a claimant should not recover his reasonable costs [16].
Despite this, the reasons for limiting Mr Hunts order for costs in his favour in this case are that: he raised issues much wider than the issues on which he was given permission to appeal and which required detailed rebuttal; and, he persisted in seeking an unrealistic remedy a quashing order [17].
Consequently, the Court of Appeals order should be set aside and substituted with an order that Mr Hunt recover two thirds of his costs both in the High Court and in the Court of Appeal [18].
As to costs in this Court, although Mr Hunt is entitled to his reasonable costs, having succeeded in reversing the costs orders made by the courts below, a significant proportion of his argument was directed to the question of a declaration.
This had no merit.
Therefore, Mr Hunt should recover two thirds of his costs subject to either party making written submissions as to why a different order should be made [19].