Mayor & Burgesses of the v London Borough of Redbridge

LORD JUSTICE NEUBERGER: This is the hearing of the adjourned application of Miss Jacqueline Low for permission to appeal the decision of HHJ Simpson. It was before me on 7 April 2006 when I gave a judgment explaining the background to the application and why I was adjourning it. The four grounds which arise out of the hearing itself are set out in paragraph 2 of my judgment. I expressed the view that none of those four grounds stood much chance of success. The way I put it was that:

“Miss Low would have grave difficulties in persuading this court that she should have permission to appeal on those grounds. Those sorts of matters are very much for the trial judge and this court is very unlikely to interfere with any conclusions that he reached in relation to those issues.”

The issues were that the judge should have adjourned, the case lasted much less time than was estimated, the judge was wrong to reject Miss Low’s assessment of losing her home on her mental state, and the judge was over-influenced by her unpreparedness to accept any alternative accommodation.

Having reconsidered those matters, I am bound to say that my initial scepticism as to the prospect of any of those points persuading an appellate court to reverse the judge’s decision or to order a retrial is confirmed. Although Miss Low clearly feels that she was unfairly treated by the judge, and that each of those points have force, I do not agree.

Whether or not to adjourn the case is very much a matter for the judge; both sides were there and represented, and he decided to proceed and was well entitled to do so. The fact that the case lasted less time than expected is, with all due respect, irrelevant. The fact that the judge rejected that doctor’s assessment was something that he was entitled to do. The judge saw Miss Low. The doctor was not a particular expert, he was a general practitioner, and the judge was entitled to give the weight that he thought was appropriate to that evidence. That Miss Low would not accept any other accommodation at all was a view the judge was entitled to form as a matter of fact, and it was something which he was entitled to take into account. In any event, it was not a major issue in relation to what he had to decide.

So that leaves outstanding the ground upon which I adjourned the application. In a sense we are no further forward on that ground, which was that Miss Low says that she had the rights of a spouse and therefore would not have fallen within the ambit of ground 16, schedule 2, to the Housing Act 1985. That argument is based on a term that she says was in her father’s tenancy, which was, on his leaving home, transferred to her mother, and to which she was therefore entitled to succeed.

One is very reluctant to put an end to litigation where there is a real possibility of information coming forward which may be completely decisive of the outcome particularly when, if that information were decisive, it would result in the decision being reversed. On the other hand, I have to bear in mind that the point was not made to the judge, and that Miss Low was represented, and that there has to be an end to litigation.

I have real sympathy for Miss Low. She clearly feels very distressed by this whole matter, very upset, and one can well understand why. However, I have come to the conclusion that, despite this, I must dismiss her application. It is right to say that, as will be clear from the recording, she finds this as upsetting as I expected and she is crying. I am sorry for that, but I have come to the clear conclusion that it is my duty to take this course.

Miss Low has now told me what she believes what the provision in the tenancy agreement, that she cannot get hold of, says. It is that she should have the right, as the daughter of her mother, living with her mother, as her mother, living with her father, had when the tenancy was granted to her father, namely to succeed to the tenancy. Well, she has succeeded to the tenancy pursuant to the provisions of the Housing Act, and she is a secure tenant of the house. But unfortunately for her Parliament has decided that where someone in her position as a child, rather than a spouse, succeeds to the tenancy, he or she is susceptible to be evicted pursuant to ground16 on the basis of alternative accommodation.

LORD JUSTICE NEUBERGER: Miss Low says that she has been told that no order for possession could be made against her by the Mayor or Redbridge until the relevant parts of the tenancy agreement have been found. Assuming that what she says is right, with all due respect to him it is not for the Mayor of Redbridge to decide whether an order for possession should be made, it is for the court.

LORD JUSTICE NEUBERGER: I have no reason to think that the Mayor of Redbridge intended to interfere with the court’s activities any more than the court intends to interfere with his activities.

It seems to me that the essential point is that she has succeeded the tenancy but her succession is susceptible to a claim for possession under ground 16. Ground 16 does not mean that she is to be thrown out of her flat without anywhere else to go; it involves her being provided with alternative accommodation.

In my view, therefore, if in the terms of her mother’s tenancy there was such a provision, it was supplemented or replaced by the statutory provision. Of course she is a successor; her rights to succeed the tenancy are not contractual, as she was not a party to the contract. I have little doubt that what the provision in the tenancy agreement would have said was simply to reflect the statutory provision, in the same way as documents I have been provided with show the Council is very properly telling its recent tenants what the rights of succession then enshrined in statute were, but I am trespassing on a slightly different point. I would dismiss this application for four reasons.

My first point is that in my view the tenancy agreement which she is chasing, or the provisional tenancy agreement that she is chasing, if it exists at all, will merely provide for a right which does not meet the claim for possession based on ground 16.

My second reason is that I am as confident as one can be about these things that the term in the tenancy agreement will simply have been informing the tenant of the then statutory rights of succession as they existed at the time of the tenancy agreement, in the same way as the council does now with the information for tenants about succession provisions under the 1985 Act.

Thirdly, the point was not taken below. It does not exclude it from being taken now, but it is a relevant factor when deciding what to do.

Fourthly, Miss Low had had substantial time to find the documents, and indeed has had over a month since the matter was last before me. She believes that the Council is engaged in a concerted cover-up in an attempt not to inform her. It would take much more compelling evidence to persuade me that that is the case.

LORD JUSTICE NEUBERGER: I am quite prepared to think that some people have told her that there is such a provision, but that does not mean that there is, and there is simply nothing to support the existence of such a provision anyway, other than what Miss Low says, I am sure in good faith, but the truth of the matter is that there has been plenty of time within which to find somebody who has a copy of such a provision, and that has not been done.

Taking all these factors into account and bearing in mind that litigation has to come to an end, I have come to the conclusion that, very sorry though I am for Miss Low, and appreciating how very upsetting it is for her, I must refuse this application. I would be no more than repeating myself if I were to go through the reasons for doing so.