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

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:

That the Court will be asked to make an order for possession.

The reason why such an order is sought

The date after which proceedings may be begun.

That the tenant has a right to request a review of the housing authority’s decision.

That the tenant can, if he needs help, seek advice from the Citizens Advice Bureau or similar agencies or a solicitor.

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:

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

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:

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

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:

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

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:

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:

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;

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:

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

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

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:

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:

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

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:

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

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.