London Borough of Croydon v Wright

This is a curious case in some respects. On the 23^rd October, after an oral hearing, Jack J. gave permission to appeal two decisions made at Croydon by H.H.J. Atkins on the 28^th September of this year. That appeal has been heard today.

The background is as follows. In September 2003 Miss Doreen Wright, the appellant, became an unprotected tenant of the Croydon London Borough Council at 276 Long Heath Gardens, Croydon CRO 7TZ. She did not have secure tenancy status under the Housing Act 1985 because of the provisions of Schedule 4, para.4, that is to say, that the tenancy was granted in pursuance of the homelessness function under Part 7 of the Housing Act 1996.

The respondents, Croydon, did not need a reason to seek possession but were entitled to possession upon proof of their interest in the land and service of a valid notice to quit. Accordingly, in April 2004 Deputy District Judge Iley made a 14 day possession order. Thereafter the Council decided not to enforce its right to possession. That was a decision that the Council was entitled to take in the exercise of its discretion and was not something which involved any intervention by the court.

On the 20^th August of this year the Council decided to enforce its right to possession and obtained an appointment with the bailiff for the 1^st October at 1 p.m. There is some doubt as to when that appointment was notified to the appellant, but that is not material for present purposes.

On the preceding Thursday, the 27^th September, the appellant applied to suspend the warrant. The application was heard on Friday, the 28^th, when she was represented by a duty solicitor. District Judge Fink considered and dealt with on that occasion three applications and rejected them all. It appears that she dealt with the following matters, first of all an application to adjourn which had been requested by the appellant so that she could have the opportunity of putting in further evidence, presumably in relation to the alleged disability which forms the subject-matter of this appeal. Secondly, there was an application to suspend the warrant itself and, thirdly, after those applications were rejected there was an application for permission to appeal the decision of District Judge Fink herself.

On the same day an appeal against District Judge Fink’s order was heard by His Honour Judge Atkins. He appears to have dealt on this occasion with four matters. He dismissed first of all an application to adjourn the application for permission to appeal. He then dealt substantively with the application for permission to appeal District Judge Fink’s order. He then rejected an application for an injunction in proceedings which were not yet on foot but which now are on foot against Croydon. Finally, he dealt with an application for permission to appeal his own order. In all respects again the appellant was unsuccessful.

There are now two appellant’s notices before the court. The first one I shall identify by the number CC/2007/PTA/0622 which relates to the appeal from Judge Atkins’ refusal to adjourn the application for permission to appeal and to grant a stay of execution in the meantime. Secondly, I shall identify the other appeal by reference to the number CC/2007/PTA/0623. This is concerned with the appeal in relation to Judge Atkins’ refusal to grant an interim injunction restraining the defendants from enforcing their possession order and warrant of possession in relation to the appellant’s occupation of the premises pending a hearing at which an interim injunction could be more fully considered.

It will now be apparent why I describe the case as “curious”. It is unusual to have appeals on the discretionary jurisdiction to grant adjournments in any event, but, not only that, at first sight it appears that there is some attempt to circumvent the modern two-tier appellate structure, as set out more fully in the CPR.

On the 1^st October the appellant applied for a stay in respect of the warrant that was due to be enforced at 1 p.m. that day. For good measure, relief was obtained separately from two High Court judges, His Honour Judge Seymour QC., sitting as a Deputy, and from Mr. Justice King. The applications were made on an ex parte basis and no note has been produced of the proceedings on either of those occasions, but the relief claimed must have been ancillary to this court’s appellate function.

This morning I gave permission for a respondent’s notice to be put in, subject to some modification. The modification was to avoid the necessity of an adjournment, but in that form it has been pursued today and dealt with by counsel in their submissions. I shall consider the various submissions in the following order, for convenience. The first subject arises as a result of the respondent’s notice and is based on the proposition that the court had no jurisdiction to grant the relief sought. That submission is based in turn upon s.89 of the Housing Act 1980, which is in these terms:

“(1)

Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in sub-section (2) below the giving up of possession shall not be postponed whether by the order or any variation, suspension or stay of execution, to a date later than 14 days after the making of the order unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date, and shall not in any event be postponed to a date later than 6 weeks after the making of the order.

(2)

The restrictions in sub-section (1) above do not apply if –

(a)

the order is made in an action by a mortgagee for possession;

or

(b)

the order is made in an action for forfeiture of a lease; or

(c)

the court had power to make the order only if it considered it

reasonable to make it; or

(d)

the order relates to a dwellinghouse which is the subject of a restricted contract within the meaning of Section 19 of the 1997 Act; or

(e)

the order is made in proceedings brought as mentioned in Section 88(1) above.”

I should say that none of those exceptions listed in sub-section (2) are relevant for present purposes and, accordingly, the primary submission on this aspect of the case made by Mr. Holbrook on behalf of the Council is that the order from the court below, and indeed today, would be tantamount to postponing the date on which the possession order be given up to a date later than six weeks after the making of the order, and as the order was made by the Deputy District Judge in April 2004 the material date would be the beginning of May of 2004. That is obviously a fundamental submission for present purposes.

Mr. Lane, on behalf of the appellant, submits that that is not, however, a proper reading of the Act, and it is necessary to take into account the provisions and impact of the Disability Discrimination Act. What the appellant is doing is seeking to challenge the 2007 activity of the local authority in deciding to seek a warrant for possession in August 2007.

I was invited to consider a number of authorities, in particular Lewisham London Borough Council v. Malcolm, a decision of the Court of Appeal on the 25^th July this year, [2007] E.W.C.A.Civ.763, and my attention was drawn to a number of passages but, in particular, paras.48 to 52, 61 to 65 and 68. I was also invited to consider Southwark London Borough Council v. St. Bryce, and the older decision of the Court of Appeal in Leicester City v. Aldwinkle back in 1991.

But the important point about the present submission seems to me to be this, that what is sought is to challenge and to restrain the local authority’s attempt to seek possession in accordance with the order made back in 2004. It may seem a technical distinction but it is not an order postponing the effect of the order for possession such as would come within the terms of s.89 of the 1980 Act. I accept of course that the effect would be very similar.

The importance of the distinction is this. It is submitted by Mr. Lane on behalf of the appellant that the activity which it is sought to restrain would be in itself unlawful in accordance with the provisions of the Disability Discrimination Act, and that such an exercise is permissible notwithstanding the provisions of s.89 (even though s.89 has not been amended in any way by the provisions of the Disability Discrimination Act). Mr. Lane’s submission is that it would be unlawful to evict the appellant in these circumstances, not least because it is said that the decision is based upon arrears of rent having accrued at various stages, and upon the fact that she was, at the time the decision was taken, in arrears. It is submitted that that decision to proceed to enforce the possession order and to evict her is discriminatory in the sense that her failure to pay rent was attributable to her disability. It is said that she suffers from dyslexia and diabetes in particular, that those conditions have had certain effects upon her. This has meant that she has not been efficient in the management of her financial affairs and, in particular, was not able to recover tax credits through what might be categorised as inefficiency in handling the applications or renewing her entitlement. That is the first subject of dispute between the parties and, as I say, I uphold the submission of Mr. Lane in this respect in that there is jurisdiction in the court and there was jurisdiction in the County Court notwithstanding the provisions of s.89.

The second subject, which arose as a result of para.2(a) of the respondent’s notice in particular, is this. It is submitted that there is simply no link between the alleged disability and the decision to enforce. However, if one looks at the evidence before the court, transcripts of what took place below and also witness statements, it is certainly arguable, and appears to be the case, that the local authority did decide to proceed, even though they had no need, as a matter of law, to produce reasons, because of the arrears of rent. Whether or not that is so is a matter of fact and evidence, and whether or not the disability is linked to the inability to pay rent is also a question of fact which is on the face of it to be investigated. There is now, subsequent to the hearing before the Circuit Judge, a report dated the 18^th October from a Dr. Shuttleworth which appears to set out a prima facie case that the appellant’s inability to pay her rent was linked to her inefficiency in handling her financial affairs, which in turn was linked to what is alleged to be her disability. That may seem thin, it may ultimately not succeed, but it is an argument, it seems to me, which depends upon being investigated and decisions of fact being reached.

It is true that the local authority does not need to produce any reason or to prove anything in order to enforce the order for possession which was obtained but, as a matter of fact, it is said, and this may be for later determination, it chose to do so because of the appellant’s inability to meet her rent commitments. If it chose to enforce for that reason, that is a decision which may conceivably be challengeable because it offends the Disability Discrimination Act and she may be entitled to a remedy.

The third matter which was considered is, as was submitted on behalf of the local authority, that even if the Judge misdirected himself that is immaterial, because the decision reached was one which is fully supported in any event.

At this point I need to consider the reasons which the learned Judge identified when refusing permission to appeal because they are relevant also to the refusal to adjourn. The learned Judge said this. There are five reasons altogether, and the first was:

“I am not satisfied that what is alleged is a disability within the meaning of the Act. Disability under s.1 is ‘physical or mental impairment which has a substantial long term adverse effect on the person’s ability to carry out normal day-to-day activities’ which are further defined in the Act.”

The Judge went on to say that dyslexia and diabetes are both common unfortunate conditions, but he was far from satisfied that they were embraced within what is covered by the Act as a physical or mental impairment which has a substantial long term adverse effect on the ability to carry out normal day-to-day activities.

The learned Judge of course, as the District Judge before him, was making a decision in circumstances of some urgency and without the opportunity for full consideration of the issues. As it happens, in the light of the fuller material now before the court, it seems to me clear that there is legal authority, which has been cited to me in his skeleton argument by Mr. Lane, to the effect that both dyslexia and diabetes can fall within the statutory notion of disability; not always, but in some circumstances they can. What is more, my attention has been drawn to the guidance produced in accordance with the statute as to the meaning of disability and to examples of disability. It is quite clear to my mind that the learned Judge fell into error in coming to the conclusion he did. It is understandable because of the pressure of time, and I fully appreciate that but, nevertheless, that seems to be an error of law. It is a consideration which may have affected his decision to refuse an adjournment.

The second reason he gave was this:

“In my judgment, there is no acceptable evidence of disability in any event. All I have had is statements saying that Mrs. Wright has diabetes and dyslexia. In my judgment, in a case of this history and having gone on for so long there should be some proper evidence produced to support what is being said and to support the argument that this is a disability.”

Of course one of the factors under consideration was that Mrs. Wright was applying, through Mr. Goss on that occasion, for an adjournment precisely so that she could put in evidence or further evidence to support the proposition that she was suffering from a disability within the terms of the statute. The Judge refused her the opportunity of doing that.

It is important to remember when considering the timescale in this litigation that what was sought to be challenged was the decision of the local authority in or about August of 2007 to evict the appellant and to enforce the possession order. So that is the timescale which is being considered rather than the three-and-a-half year timescale dating back to the possession order itself in April 2004.

The third reason the Judge gave is:

“I am not satisfied that there is any evidence of discrimination in this case. It is said the reason for the possession proceedings relates to disability. I do not consider there is sufficient or proper evidence to support that allegation.”

But the reasons given relate to non-payment and that, she says, is due primarily to dyslexia, and perhaps to some extent also to diabetes. One may be sceptical about that, but it is a matter which requires to be investigated and considered in the light of the evidence and, in particular now, in the light of the expert report which I admitted this morning for the purposes of the appeal.

There are criticisms that can be made of the report itself. It is somewhat thin and it may be insupportable either in the light of other evidence or in its own terms, but it does, as I have said earlier, raise a prima facie case that, first of all, the appellant is suffering from a disability within the meaning of the Act, perhaps two disabilities, dyslexia and diabetes, and also provides some evidence that those are linked to her failure to pay the rent which underlies the decision to evict her.

The fourth reason is linked again to the question of the delay and the timescale. The Judge said this:

“I consider that the application is made too late. This is a case with a very long history. There are very long delays indeed. It has been going on for years now. It seems to me the position is very unsatisfactory. When an application like this is made at the very last minute, although I am sure Mr. Goss has done his best to assist the court when he says that there should be a 28 day adjournment, my understanding is that that is the longest he considers he can safely ask for. In fact I consider the reality of the position is somewhat different. If I grant an adjournment for 28 days it seems to me very likely that the case will be adjourned further thereafter. This is because proper evidence may not be obtained by that time. Indeed it seems quite unlikely that it would be, so there is the likelihood of extensive further delays.”

As a matter of fact we now know that it was possible to obtain a report in less than 28 days, namely on the 18^th October. The speed with which it was produced may have something to do with what I described earlier as its thinness, but there it is; it raises a prima facie case in my judgment. However, the learned Judge was not to know that on the 28^th September. He had to make a judgment as best he could in the light of the material before him.

Nevertheless, for the reasons I indicated earlier, I consider that the decision is flawed to this extent, namely that he failed to focus on the period of delay that was relevant, namely from the time when the appellant was notified of the intention to seek possession, a date which is not in evidence, but some time between August and the 1^st October of this year.

The fifth reason given by the Judge was that Mr. Goss had had to show him that the District Judge was wrong in her approach. He expressed the view that she was not, and he considered that when somebody is asking for permission to appeal it is necessary to show that the appeal had a real prospect of success. He did not consider, in the light of the material before him, that it did. There is of course now more information which requires to be considered, not by me today because I am concerned with the decision of the learned Judge to refuse an adjournment, but possibly by another judge at a later stage in the county court, as to the reason for giving permission to appeal the District Judge.

It is submitted that the reasoning of the Judge can stand by itself, notwithstanding any error that he may have made. I do not accept that. It seems to me that the learned Judge, again for reasons which are understandable, came to a decision on the question of granting or not granting an adjournment which is flawed for the reasons I have indicated, and therefore is one that I can address.

There is a further submission I need to consider, which I adverted to briefly earlier, namely that the effect of what is now sought to be done would undermine what I have called for shorthand the “two tier appellate structure” which now exists and is embodied in the CPR. It is important therefore to focus on what I am being asked to do. What is being challenged before me is the original decision of Judge Atkins to refuse an adjournment; in other words, I am not being asked to address his appellate jurisdiction. The decision which I am focusing on is that whereby he refused an adjournment of the renewed application for permission to appeal the decision of the District Judge. I am not being asked to consider the question of permission to appeal from the District Judge if the appeal is successful before me on the adjournment question. That will have to be referred back to the county court for a decision before a different circuit judge.

I therefore conclude that the submission which seemed very attractive at first blush on behalf of the Council, that this undermines the two-tier appellate structure, is not well founded.

There has also been a challenge to the refusal of the Judge, as I indicated earlier, to grant an injunction. There were no proceedings on foot at that stage before the Judge. There are now. They were started last Friday, that is to say the 30^th November this year. There has been some delay since the point at which legal aid was granted for this purpose. Why that is perhaps I need not go into for present purposes. There may be a good reason for it, and I am prepared to accept that there is. But what matters is this, that the learned Judge had the jurisdiction to grant an injunction because it is provided in the CPR, as it has always been provided, that in circumstances of urgency the court has the power to grant an injunction before proceedings are instituted, usually on an undertaking that proceedings will properly be put on foot at a later stage, as in fact they now have been. So the Judge had jurisdiction to grant the injunction. As I have already held, it would not have been outside his jurisdiction by reason of s.89 of the 1980 Act. He would have had the power to do that and, in my judgment, it would have been appropriate to grant an adjournment and to have granted that measure of interim protection in the meantime.

So, in those circumstances, I will allow the appeal against the learned Judge’s decision, and I will remit the matter to the county court for a different judge to consider afresh the renewed application for permission to appeal from the District Judge, Judge Fink.