Chowdhury & Anor, R (on the application of) v London Borough of Newham

The Defendants are a housing authority. In October of 2001 they granted an introductory tenancy to the Claimants. On the 25^th July 2002 the Defendants served a notice to terminate that tenancy. On the 22^nd August 2002 that decision was the subject of a Review. The panel holding the Review confirmed the decision to pursue the notice to terminate. On the 11^th September 2002 the Defendants issued possession proceedings. On the 11^th November 2002 the Defendants notified the Claimants that their request for an adjournment of the possession proceedings was refused. The Claimants challenge the decisions of the 22^nd August, the 11^th September and the 11^th November 2002. Proceedings in the County Court have been adjourned pending the outcome of this hearing. In short terms, Miss Rubens, Counsel for the Claimant submits that each of those decisions was flawed: that no housing authority acting reasonably could have made them. It follows that it is for this Court to review each of those decisions. In doing so, this Court must judge the reasonableness of those decisions on the basis of the facts that were known to the Defendants at the time that the particular decision was made or should have been know to the Defendants had they made proper enquiry.

Part V of the Housing Act 1996 provides for ‘Introductory Tenancies’. The purpose of the scheme is to enable the housing authority to judge whether a tenant is a suitable candidate for a secure tenancy. In effect, the introductory tenant is on probation. If he fulfils his obligations he may expect to have his tenancy converted into a secure tenancy. The converse applies. In The Mayor and Burgesses of the London Borough of Merton v. Clive Williams [2002] EWCA 980, Mance LJ, giving the judgement of the Court, said

“The purpose of the introductory tenancy scheme was and is to confirm a tenant’s suitability and reliability over the relatively short period of a year…….Absent some good explanation, a tenant who defaults in a significant amount of rent during this period is on the face of it unsuitable. If the reason for the default is an apparently unjustified or refusal by the council to meet a request for housing benefit, the position will look different, but where the tenant has never moved in…..”

Miss Rubens relies upon the passage for reasons which will become apparent when I deal with the facts

By Section 127 of the Act, the housing authority can only terminate an Introductory Tenancy by obtaining an order for possession from the Court. The tenancy ends on the date that the tenant is ordered to surrender possession.

Section 128 provides that the Court shall not entertain proceedings for possession unless the housing authority has served upon the tenant a notice of proceedings. Such notice must state, inter alia:

The conduct of such a review is governed by the Introductory Tenants (Review) Regulations 1997. These regulations provide for the tenant to made representations either in writing, in person or by a representative. Regulation 7 provides:

“If any person shall fail to appear at the hearing, notice having been given to him in accordance with regulation 6, the person conducting the review may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding his absence, or give such directions with a view to the conduct of the further review as that person may think proper.”

In Anne McDonagh and Salisbury District Council [2001] EWHC Admin 567 Jackson J. said at para 28

“I shall state my conclusion on this issue with equal brevity. It is clear from the evidence as a whole that the Review Board on 18 October did not consider afresh the appropriateness of bringing proceedings for possession. Instead, the Board focused upon the question whether the housing officer had acted reasonably in reaching his decision. That approach is not in accordance with section 129 of the 1996 Act. On any fair reading section 129 requires that the landlord should consider afresh the evidence and the merits, and should reconsider whether the proper course is to bring proceedings for possession. When a landlord reviews his own decision under section 129, the process is not analogous to judicial review by a court.”

Miss Rubens relies upon this also.

On the 9^th October 2001 the Defendant granted an Introductory Tenancy to the Claimants. It was to begin on the 15^th October and to last for one year. The rent was £54.06 per week. There was a separate weekly payment of £3.34 in respect of the water rate. These payments were later amended to £55.98 and £3.32. The agreement states:

“The weekly rent at start of tenancy comprises:

net rent £54.06 per week

Heating £ per week

Water rate £3.34 per week

Other £ per week

Gross rent £57.40 per week”

At the footnote of the document immediately above the signature of both claimants are the following declarations:

“I/We have received a copy of the Council’s Conditions of Tenancy

1/We understand and agree to the Conditions of Tenancy.

1/We have received a copy of the Tenant’s Handbook.

I/We have received keys to the property.

The gross rent is to be paid weekly in advance.”

Notwithstanding that declaration the first Claimant asserts that he did not appreciate that the obligation to pay the water rate was independent of the obligation to pay rent. He asserts that this was never explained to him. He relies upon the fact he has a limited ability to understand English. How limited is his ability is unclear.

On the 12^th October the Claimants applied for housing benefit. Such benefit would have covered the rent but not the water rates for which the tenants remained responsible. Mrs. Hameed, who was employed by the Defendants at the Stratford letting Department and who had signed the tenancy agreement on behalf of the Defendants assisted with the written application.

The 1^st Claimant asserts that she did not include details on the application form which were necessary before the application could be granted. It is plain that the information on the form was incomplete. As I understand it, the details missing relate to the 2^nd Claimant. Mrs. Hameed would have known they were required as she had overseen the signing of the tenancy agreement.

The 1^st Claimant asserts:

“I am not very literate and I was having a lot of difficulty completing the form myself and I kept asking Mrs. Hameed for help. Mrs. Hameed ended up filling the form for us and asked me to sign at the appropriate place…………at no time did she explain to me the workings of the Housing Benefit system and also the financial consequences for signing any tenancy. Even now my solicitors/advisors ask me if I know what the financial consequences are, I can only guess and say that one is responsible for rent payments and that if rent is not paid, arrears build up………”

He adds that it was not explained that he and his wife were jointly liable for the water rate.

Mr Thornton, the Rent and Arrears Team Leader of the Defendants states that:

“The Housing Officer responsible for the signing up procedure was Mrs. Hameed. Obviously at this remove of time, Mrs. Hameed has no recollection of dealing with the Chowdhurys. However she is an extremely experienced Housing Officer……..It is standard practice for Housing Officers signing up a new tenant to explain the financial consequence of signing for any tenancy and the workings of the Housing Benefit scheme. Details of the family’s income would be obtained and in an appropriate case a Housing Benefit Form would have been provided to the new tenant for completion. Water service charges do not qualify for payment of Housing Benefit and it is standard practice for all Housing Officers to explain this and to stress the need for the next tenant to pay this money directly to the Council.”

This is a conflict of evidence which I cannot resolve. However I am not prepared to accept the assertion of the 1^st Claimant that he can only guess as to the financial consequences of entering into a tenancy agreement. At the very least he must have understood a) that he was being provided with accommodation and b) that he was responsible for paying for that accommodation and c) that if he failed to pay for that accommodation, his right to continue in that accommodation would, at the least, be put at risk. He may have difficulty with English but a tenancy agreement is hardly a uniquely English arrangement. No one suggests that Mr. Chowdhury is a fool.

Because the application for housing benefit was defective the Defendants wrote to the Claimants on the 5^th December 2001 requiring the information required to enable the application to be processed. The letter is headed in bold type:

“We need more information”

The exact information required is specified. There is a ‘Reply Sheet’ attached. The letter ends:

“You must reply within four weeks of the date at the top of this letter. If you do not we will assume that you no longer want to claim benefit.”

There was no response to this letter. A reminder was sent on 9^th January. Again there was no response. On the 25^th January 2002 a further letter was sent. It was headed in bold type:

“I cannot deal with your benefit claim.”

In the letter the Claimant is told that he still has not provided that necessary information and consequently it was assumed that he no longer wanted to claim benefit. He was notified that if he still wanted to claim benefit, he must contact the Newham Benefit Service within 7 days. He was also told of his right to appeal.

The Claimant must have understood this letter as he supplied some of the necessary information on the 29^th January 2002. However because he had not supplied all the necessary information his application for Housing Benefit was refused.

It must follow that by the end of January 2002 the Claimant knew that no housing benefit had been paid. As he had paid no rent, he must equally have appreciated that his rent was in arrears.

He made a second claim on the 11^th February. This time he provided all the information and in March 2002 his application succeeded. Housing benefit was paid from the 18^th February 2002. He requested that his application be backdated to the beginning of his tenancy. That request was refused on the 14^th May 2002. He lodged an appeal against that decision on the 5^th June.

Miss Rubens attacks both the decision to refuse this initial application and the decision not to back date the payments once housing benefit had been granted. Whilst it may be that some responsibility for the failure to provide the requisite information rests with Mrs. Hameed, thereafter it was plainly the inaction of the Claimants which led to the failure of the first claim for housing benefit. The decision not to backdate the payments was justified by the lack of any reason for the continuing failure to provide the necessary information.

As to the rent. On the 7^th November 2001 a ‘Reminder’ letter was sent to the Claimants. The following words appear in bold type;

“Re: Arrears of Rent and Charges of £172.20 at 4^th November 2001.”

Had either Claimant troubled to read the letter or to have the letter read to them, they must have appreciated nothing had been paid towards their gross rent.

A similar letter was sent on the 12^th December 2001 and on the 7^th January 2002 a further letter was sent detailing the arrears and telling the Claimants that the Defendants intended to serve a notice to terminate the tenancy.

The 1^st Claimant asserts that he does not remember receiving the ‘Reminder’ letters. He suggests that some of his post went missing and that by inference, he did not receive them. He states at para 6. of his second statement:

“I am sure I did not receive the letters of the 7^th November or the 12^th December but I did receive the letter of the 7^th January 2002.”

A ‘Notice to Terminate’ was served on the Claimants as the 7^th February 2002. The 1^st Claimant states:

“At no stage however did the Defendants inform us of the accumulating rent arrears and the first we heard from them was through a notice dated the 7.02.02. Both the 2^nd Claimant and we have poor English and we did not realise what the notice was. We treated it as a circular and did not pay any regard to it.”

It is to be noted that the document is headed in bold type:

“Notice to terminate an Introductory Tenancy”

In paragraph 3 it is stated that the Claimants had broken their obligation “to pay the rent, water rates…………………”and that there were arrears of rent amounting to £918.40.

I find it difficult to accept the assertion that the Claimants regarded this as a circular. It was a letter from their landlords. If they did not have sufficient English to understand it, the proper course would be to take it to a friend or to the Citizens Advice Bureau and to discover what it meant. They could, of course, have spoken to an officer of the Defendants. It was not reasonable to treat it as a circular and ignore it.

The Claimants’ assertion becomes even less tenable when one considers the Customer Enquiry Record Exhibit TR9 which is exhibited to the 1^st Claimant’s 2^nd statement. The document is dated the 18^th February 2002 and timed at 15.15. The entry is by Angela Harvey and reads:

“Enquiry details. Customer has provided reminder notice (dated 21/11/2001) at interview and would like to make payment

Action taken:

Advised that there is a court hearing date set for 13/03 2002 but that if Mr. Chowdhury pay £296.30 before the court hearing then there would not be court charges of £40.75

Mr Chowdhury has advised that he will be paying the amount outstanding of £296.30 tomorrow on account number 63515978.”

It is clear that Mr. Chowdhury had received and kept a ‘reminder notice’ in November 2001, albeit this related to Council Tax. He did not pay the £296.30 until March.

The Claimant admits that by April 2002 when he received a breakdown of their entitlements to housing benefit that he realised that they were responsible for the water rates. It was on the 27^th May 2002 that he paid £100 to cover the water rate.

On the 26^th July the Defendants sent to the Claimants two further notices. The final one was headed:

“Notice to Terminate - Review”

It states that the Claimants had broken their introductory agreement and had been sent a ‘Notice to Terminate’ which, if it went ahead would cause them to lose their Council home. It detailed the procedure whereby the decision to terminate could be reviewed. Again, the Claimants were advised as to where to seek advice.

The second document is the Request for a Review. That document specifies the arrears of rent at £1006.36. There is no mention of the water rate. In fact, the Claimants did not request a review. Nonetheless a review was held on 22^nd August 2002. The Claimants were notified of the date on the 13^th August. The Claimants did not attend. They made no written representations. The Panel considered the decision to serve the Notice to Terminate and decided that the Council had acted correctly on the basis that the Claimants had broken their tenancy conditions. The letter referred to the arrears of rent being £1019.64. Again there was no separate assessment for the water rate.

Miss Rubens submits:

She asserts that the Panel failed to take into account the facts set out at a) to d) above, failed to re-consider the Claimants case and failed to provide a fair and vigorous review procedure. Their decision is, she maintains, unsustainable.

This submission I reject. Whilst accepting the accuracy of the factual assertions at a) to d) these facts are but part of the factual basis upon which the Panel must have acted. The complete picture would include:

On the 11^th September 2002 the Defendants issued proceedings in the County Court claiming possession of the premises and arrears of rent in the sum of £1,144.88. There was no separate mention of the water rate.

Miss Rubens submits that this decision is equally unsustainable. Again I reject her submission. The only event which could be material that had occurred between the decision of the Review Panel and the issue of proceedings was that the Claimant had made some enquiry into the progress of his appeal in relation to housing benefit for the period October 2001 to February 2002. In my judgement, that fact is of little weight given the long history of inertia.

After the issue of proceedings, events moved more quickly. On the 23^rd September 2002 the Claimants paid £200 into the rent account. On the 26^th September Mr. Thornton, the Rent and Arrears Team Leader of the Defendants interviewed the 1^st Claimant and told him that the Defendants intended to continue the proceedings for possession but that if he maintained a clear rent account the warrant for possession would not be issued. That remained the position at the date of the hearing. The Claimants appeal in respect of the back dating of housing benefit was allowed and in the week commencing the 24^th October 2002 all the arrears of rent were paid and the account went into credit.

On the 24^th October 2002 the Defendants wrote to the Solicitors now acting for the Claimants. They confirmed that the Defendants would arrange for the possession proceedings to be adjourned for two months

“To enable any request by your client for a review of his housing benefit entitlement to be completed and any resulting adjustment to his rent properly effected.”

The need for an additional review was necessary because in August 2002 the 1^st Claimant had secured employment.

On the 28^th October, the Claimants Solicitors wrote to the Defendants asking whether the possession proceedings would be discontinued. On the 11^th November the Defendants notified the Claimants solicitors that the proceedings would be continued. I quote:

“The Council is satisfied that your client has breached the tenancy agreement in respect of the obligation to pay rent weekly in advance.”

Miss Rubens submits that this decision is likewise unsustainable. She argues that by this time all the arrears of rent had been paid. She asserts that, leaving aside the water rates, the arrears of rent arose from the failure of the Defendants, initially the failure of Mrs Hameed, subsequently the failure to back date the grant of housing benefit from October 2001. She submits that the Defendants are not entitled to rely upon their own failures in the Housing Benefit Department in order to support their case for possession based upon non payment of rent. She asserts that in reality the only failure which might be the responsibility of the Claimants is the failure to pay the water rate. As to that, she argues that this separate obligation was never made clear to the Claimants but that once they realised it was their obligation, they paid. She repeats that no housing authority, acting reasonably could have reached that last decision.

What underlines the whole of Miss Rubens submissions is the assumption that the role of tenant is a passive one. That is an assumption I am not prepared to accept. If a tenant does not understand the obligations that he undertakes when entering into a tenancy agreement, he should take steps to discover what they are. He alone knows whether he does or does not understand his obligations. There are numbers of agencies who would assist him, not least the letting department of the housing authority. When the housing authority write to him, he is not entitled to disregard the letters nor to assume that they are merely circulars. There is no justification for such an assumption. If he has difficulty understanding what is written, that is a matter singularly within his knowledge. It is for him to take steps to discover what the letters contain. If he fails to fulfil his obligation, because of his failure to understand correspondence the failure is his.

I take a similar view as to the application for housing benefit. If a person wants housing benefit it is incumbent upon him to deal with the application efficiently. If there are problems in providing the necessary information, he should notify the housing benefit department. If he ignores correspondence and requests for further information, the failure lies at his door.

In his affidavit, Mr Thornton says at para 10

“I am of the opinion and have been from an early stage in their Introductory Tenancy that the Claimants are not suitable tenants. In my view their conduct is such that Newham was fully justified in issuing and pursuing possession proceedings in the County Court. The Claimants are the kind of tenants who only demonstrate a willingness to pay their dues when under pressure to do so in the form of threatened or actual court proceedings. However, in the event that a Possession Order were to be obtained against the Claimants, I would not propose to issue a Possession Warrant in respect of property provided that the Claimants maintained their rent account at a nil or credit balance.”

In my judgement, given the complete history of the dealings between the Claimants and the Defendants those were judgements he was entitled to make on behalf of the Defendants.

It follows that these applications fail and that the claim be dismissed.

In my view the order for costs made by Mr. Justice Moses is free-standing.

I see no reason why costs should not follow the event. Costs for the Defendants not to be enforced prior to the determination of the Claimants’ liability under Section 11 of the Access to Justice Act 1999.

I order detailed assessment of the Claimants’ publicly funded costs.

Permission to Appeal refused. The grounds are a repetition of the argument already rejected. The judgement is essentially one of fact.