London Borough of Havering v Dove & Anor

LORD JUSTICE KITCHIN: There are before the court linked applications for permission to appeal from two orders of His Honour Judge Bailey sitting at the Central London County Court. By his first order under appeal, dated 20 April 2015, the judge refused the application of the second defendant, Evelyn Dove, to adjourn the trial that was due to start that day. From this order, Evelyn Dove applies for permission to appeal. By his second order under appeal, dated 28 April 2015, the judge ordered Evelyn Dove and the first defendant, Elaine Dove, to give up possession of a flat at 61 Highfield Tower, Hillrise Road in Romford by 5 June 2015, and gave judgment for the respondent local authority in the sum of nearly £14,000 together with mesne profits at a specified daily rate from the date of judgment until possession was given up. From this order, both Evelyn and Elaine apply for permission to appeal and a stay of execution.

Permission to appeal was refused on the papers by Floyd LJ by order dated 12 October 2015. Evelyn and Elaine have requested that this decision be reconsidered at an oral hearing which has come on before me today. Evelyn has been represented at this hearing by Mr Jonathan Manning and Elaine has been represented by Mr Donny Surtani, acting under the Court of Appeal Pro Bono Scheme. I am grateful to Mr Surtani for so doing and to both Mr Manning and Mr Surtani for their submissions. Miss Stephanie Smith has also appeared this morning on behalf of the local authority.

The background may be summarised as follows. Evelyn and Elaine are identical twins. They were given a secure tenancy of the property on 1 August 1988. It seems that for many years, and certainly from 2000, they relied on housing benefits to pay their rent. For their tenancy to continue to be a secure tenancy at least one or other them had to occupy the property as her only or principal home. There had been an investigation into whether they were occupying the property as their only or principal home in 2003 and 2004 but it seems that it did not reach any conclusion adverse to them.

A new investigation began in September 2010. This investigation was primarily carried out by Mr Jonathan Walsh and in due course he produced a report. On the basis of the report, an unnamed official in the Department for Work and Pensions concluded that the evidence presented was sufficient to indicate that the property was not normally occupied by Elaine or Evelyn as her home, and a decision was therefore made to withdraw housing benefit and council tax benefit from both of them on 28 September 2011. The local authority served on Evelyn and Elaine a notice to quit on 10 October 2011, expiring on 14 November 2011. On 30 April 2014 they were served with a notice seeking possession.

In the intervening period, both Evelyn and Elaine challenged the withdrawal of their benefits in the Social Entitlement Chamber. There was a hearing before Tribunal Judge Cryman on 22 November 2012, and on 6 June 2013 he gave a decision which was adverse to both of them. That decision was given in short form and so Evelyn and Elaine sought, as they were entitled to, a full statement of reasons which was given on 18 July 2013. Judge Cryman held that Elaine was not entitled to housing benefit for the period from January 2010 to September 2011, and it appears that the same or very nearly the same dates applied for Evelyn.

Elaine and Evelyn sought to appeal the decision of Judge Cryman but their applications for permission to appeal were refused. The applicants reapplied for housing benefit in July 2014. This has the consequence that neither Elaine nor Evelyn can obtain housing benefit for a period before July 2013, however successful their July 2014 application may be. The application had by the date of the hearing before Judge Bailey been refused, although as I understand it from Mr Manning, there is an outstanding appeal.

Although Evelyn and Elaine had the benefit of the tenancy to which I have referred it is, I think, clear that neither was living in the property on anything remotely approaching a full-time basis. Elaine had been in a relationship extending well over 20 years with a Mr Andrew Jeffrey who lived in Kilburn, and the judge found that she stayed with him on average three to four days out of each week but sometimes more frequently. She referred to Mr Jeffrey's house as "home" in an unguarded moment during her oral evidence. Evelyn had been in a relationship extending over 20 years with a Mr Lawrence Wiles who lived in Walthamstow. She spent a considerable amount of her time with Mr Wiles. Her eBay activities and her bank statements indicated a residence in Walthamstow rather than Romford, as did her choice of hospital. Mr Wiles stated to Mr Walsh that Evelyn lived with him most of the time.

There was also video evidence of the property which was taken on 22 July 2011 which the judge considered gave a general impression of lack of use, that the property appeared to be used for storage and that it would be difficult to envisage the property as an individual's principal home. In addition, a plumber, Mr Tony Strange, who carried out work for the local authority, visited the property on 20 November 2013 to investigate a water leak in the property immediately below it, and he visited it again on 9 January 2014. He formed the impression that the property was not lived in.

On 7 November 2014, the judge made an order permitting the parties to serve amended pleadings and requiring them to serve further witness statements. None of the parties complied. In due course on 10 March 2015, an order was made permitting the parties to rely upon the witness statements which had been served by 6 March 2015.

Meanwhile, on 21 January 2015, the court sent out a notice that the trial would take place on 20 April 2015. Evelyn's solicitors did not, however, apply for legal aid to be extended until 14 April 2015. The judge accepted that it would have been inappropriate for her solicitors to apply for such an extension until they had seen the witness statement served by the local authority. They received that statement on 6 March 2015 but, as I say, the application for legal aid to be extended was not made for over one month and it was not until Friday 17 April 2015, with the trial due to start on the Monday, that it was appreciated that legal aid had not been extended. The consequence of this delay was that Evelyn did not receive the trial bundles until noon on Sunday, 19 April 2015.

 On the morning of the trial Evelyn made an application to adjourn the hearing to enable the issue of whether she was entitled to legal aid to be resolved, and if she was so entitled, for her to be represented. Evelyn has various severe medical conditions, details of which were set out in a witness statement accompanying the application and to which the judge was referred. The judge refused the adjournment, however. He considered it reprehensible that the witness statements had not been considered as a matter of urgency and that an application to extend legal aid had not been made by, at the latest Friday, 13 March 2015. As he explained, had such an application been made and refused an appeal could immediately have been launched. The matter would then have been disposed of one way or the other before the hearing. In these circumstances, the judge considered that to allow the adjournment would mean overlooking the failures of Evelyn's legal advisors and granting her an adjournment in circumstances where, had she been a private client, an application would have stood no prospect of success. Moreover, as the judge went on to say, the matter was in the list and there were no other unassigned cases that he could take on were this one to be adjourned. He continued that both Elaine and Evelyn were articulate and intelligent ladies and, if they wished, he would adjourn the trial until the following morning so that they could have the afternoon to look through the bundles and prepare their cases.

The trial therefore proceeded with both Evelyn and Elaine appearing in person. The judge gave judgment on Thursday 23 April and held that the doctrine of issue estoppel determined the question whether the property was Evelyn and Elaine's only or principal home. He considered this was so because it was difficult to conceive of a situation where the test for housing benefit would produce a different outcome from the only or principal home test. He also held that, even if he were wrong on the estoppel issue, the property was not in fact the only or principal home of either Evelyn or Elaine; that there was no prospect that they would be able to pay their rental arrears; that it was reasonable to make an order for possession and that neither of them could resist the order on the basis of Article 8 in the light of their personal circumstances.

Evelyn and Elaine contend that the judge erred in making these findings. In addition, Evelyn contends that the judge adopted the wrong approach to the adjournment application, misdirected himself, failed to take into account relevant considerations and gave weight to irrelevant considerations, and unlawfully failed to act compatibly with her Article 6 and Article 8 rights.

At this hearing, Mr Manning and Mr Surtani have sensibly focused on the reasons for refusal given by Floyd LJ. They argue that Floyd LJ was wrong to say that the judge's decision on the only or principal home ground was unimpeachable; and that he wrongly held that an appeal against the judge's decision on the rent ground had no real prospect of success. Mr Manning also submits that in considering the adjournment request the judge applied the wrong legal test and, as I say, failed to take into account relevant matters and took into account irrelevant considerations.

The starting point must, I think, be the only or principal home ground. Here, Mr Manning focuses first on the position of Elaine. He rightly emphasises that the judge found that Elaine was away from the property for three or four days each week (and so by inference occupied the property for three or four days each week) and yet he nonetheless concluded (surprisingly, says Mr Manning) that the property was no longer her principal home. Mr Manning submits it is arguable that the conclusion was not open to him in the light of that finding; and further and in any event, he failed to consider the issue of whether the property was her principal home properly. He submits that it ought to have been clear to the judge that the issues before him were complex and required consideration of important matters that he left entirely out of account. In particular, continues Mr Manning, he failed to consider the degree of occupation demonstrated by Elaine; whether the length of absence from the property was sufficient to raise the presumption that the property was no longer her only or principal home; whether she had done enough to rebut that presumption; what inferences should be drawn from the possessions still retained in the property; and what her enduring intention was in respect of returning in the light of the objective facts.

I have been persuaded by Mr Manning that the judge did arguably fall into error in failing to engage in the analysis and properly to take into account the considerations which I have summarised.

Mr Manning also emphasises that it was sufficient for security of tenure to be retained that either one of Elaine or Evelyn occupied the property as her only or principal home. So far as Evelyn is concerned, he recognises that the judge considered that the case against her was stronger because, as I have mentioned, the evidence was that she spent a considerable amount of her time with her partner, Mr Wiles, and the judge had regard to other matters such as her eBay activities, her bank statement and her use of the Whipps Cross Hospital. Nevertheless, Mr Manning has persuaded me that there is an additional issue here which the judge at least arguably failed properly to consider, and that is Evelyn's medical condition which, so Mr Manning has told me firmly on instructions this morning, prevented her from attending at least one day of the trial and, perhaps most importantly, prevented her from giving oral evidence. In the result, he submits, and just as in the case of Elaine, the judge failed properly to consider the quality of Evelyn’s occupation. Furthermore, the judge’s failure to conduct the trial in such a way as to allow her to give evidence denied her the opportunity properly and fairly to present her case. I have come to the conclusion that it is arguable that the judge fell into error in the way he conducted the proceedings and made the findings he did in relation to Evelyn.

Turning now to the rent ground, Mr Manning submits that the judge's consideration of this issue was inextricably linked to his decision on the only or principal home issue, and that he failed properly to exercise his jurisdiction under sections 84 and 85 of the Housing Act 1985 in considering whether to make a possession order. Mr Manning continues that the judge failed to consider the reason for the arrears being so high, namely that the local authority had refused housing benefit at all times after about 2011 on the basis that the authority considered that Elaine and Evelyn were not living at the property. He continues that if the arrears were reduced even by two years' worth of arrears, that would plainly have had an impact upon the judge's finding that Elaine and Evelyn had no prospect of repaying them. Moreover, he continues that the judge did not give proper or separate consideration to the rent ground as a separate basis for seeking possession and, importantly, that he made no proper decision on reasonableness or discretion to suspend any possession order because of views he took on the only or principal home point. If the judge had properly exercised his discretion and had taken account of Evelyn's medical condition and the power to suspend a possession order in rent arrears cases, it is perfectly possible that he would have done so. The judge’s conclusions on the only or principal home point clearly influenced his decision to make an outright order on the rent ground. Accordingly, if his decision on the only or principal home point is legally flawed then so too, at least arguably, is his decision on the rent ground. These points are in my judgment properly arguable.

In light of all of the foregoing, I have come to the conclusion that an appeal would have a real prospect of success and that it is appropriate to grant to Evelyn and Elaine the permission they seek to appeal against the judge’s order.

Finally, I must deal with the question of the adjournment. Mr Manning submits that the judge failed to undertake a proper balancing exercise based on the correct legal test because he wrongly relied on the Mitchell and Denton lines of authority and failed to take proper account of Evelyn’s medical conditions and her sudden loss of solicitors. I am doubtful that I would have granted permission on this ground had I refused to grant permission on the other grounds. However, in the light of Mr Manning's submissions and the conclusions to which I have come on the other grounds, I believe that it is appropriate to grant permission on this ground too.