London Borough of Southwark v Ibidun

This is an appeal against the decision of His Honour Judge John Mitchell in the Central London County Court on 14th and 15th June 2017. Permission was granted by Turner J on 7th July 2017; no reasons were given. An application to adduce and rely upon further evidence was made by the appellant. O’Farrell J gave permission on 24th August 2017 to the appellant to rely upon the evidence in the witness statements of Christopher Burns, dated 5th July 2017, and Christopher Fleming dated 4th August 2017. She also gave permission to rely on the evidence of Miss Easy, but I understand the appellant has been unable to trace her.

The background to this matter is that a claim was brought by the appellant, the London Borough of Southwark, against its tenant, Ms Ibidun, for possession of a first- floor studio flat at 16 Hoyland Close, Naylor Road, SE15. The local authority also sought a judgment for rent arrears and an order under s.5 of the Prevention of Social Housing Fraud Act 2002 for unlawful profit.

The judge at first instance noted, at para.3 of his judgment, that the case had involved consideration of a variety of factors and voluminous documentation. He spent two days hearing the evidence and submissions, starting his ex tempore judgment at 5.40 p.m. on the second day.

In the judgment, His Honour Judge Mitchell first sets out the chronology at paras.4 to 25. It is not necessary for me to recite that chronology, suffice it to say that the evidence was that the respondent was occupying two properties, the property at 16 Hoyland Close and another property in Kent.

At paras.26 to 30 of the judgment, the judge set out the relevant law. He said that the first question to be asked is whether or not the defendant is a secure tenant and, in order to be a secure tenant, she has to satisfy the tenant conditions set out in s.81 of the Housing Act 1985, namely that she occupies the dwelling- house as his or her only or principal home. He notes that the condition has to be satisfied as at the termination of the tenancy, which in this case was 29th April 2015. He also notes sub-section 93(2) of the Act: if the tenant under a secured tenancy parts with possession of the dwelling- house or sub- lets the whole of it, or sub- lets first part of it and then the remainder, the tenancy ceases to be a secured tenancy and cannot subsequently become a secured tenancy.

So the questions which the judge then posed were, firstly, has the defendant sub-let or parted with possession of the dwelling- house? If so, it ceases to be a secure tenancy. Secondly, if not, as at 29th April 2015, was she occupying the premises as her only or principal home? That, he said, gave rise to two sub- issues: did she occupy it as her home and, if yes, was this her principal home?

The judge then went on to consider the evidence of the witnesses. In relation to the respondent, he noted, at para.32:

“There are a number of matters where I am satisfied she has not told the truth. The first is in relation to the council tax form of 4th December 2013; the second matter relates to the interview on 31st March 2015.”

He concludes, in relation to the respondent, at para.34:

“There is no common link between the two matters, other than they demonstrate that the defendant is prepared to lie if it is going to assist her case. This means that I have to treat her evidence with great caution, but I remind myself that people may lie in some instances, but may not lie in others. I have to bear in mind the circumstances in which she was lying. The lie in relation to the council tax may be because she did not want to alert the council to the fact that she had someone living with her and she also could do with the extra money, and the second lie was a question of panicking and trying to cover her tracks.”

The judge then went on to deal with the occupation of the premises and the occupation by Miss Olujude. He said that, in 2013, he was satisfied that, at that stage, the respondent made a considered decision to let the property. He noted, however, that Miss Olujude was never given a written agreement and he then went on to consider the evidence concerning whether or not Miss Olujude had paid the respondent in relation to the occupation of the property. He deals with it at some length and concludes, at para.43:

“Taking into account the date of May 2015 when the regular payments started, the rent the defendant was seeking in her Gumtree advertisement, the fact that she needed to have assistance with supporting herself because she was only earning a relatively modest amount as a social worker, I am satisfied Miss O lujude in fact regularly paid her regular monies for occupying the property.”

Turning then to the occupation of the property by the respondent, the judge then considered the evidence. He said, at para.44, her case is supported by her mother, Mrs Phillips, who gave oral evidence, and that evidence was to the effect that the respondent would always come back at weekends and, on the occasions she visited, Bola (that is Miss Olujude) was not always there.

The judge, at para.45, sounded a note of caution. He said: “I bear in mind that it is to be expected that a mother will support her daughter, but”, he says, “I was impressed by Mrs Phillips’ oral evidence.” Further, he notes that her account is supported to some extent by the social services’ concerns in 2012 about the defendant’s proposal to move to Kent, and then he refers to a file note date 30th April 2012 written by a social worker. At para.47 of his judgment, he says:

“I bear in mind my assessment of the defendant’s credibility but, notwithstanding that, I am satisfied that her account of how she would use Hoyland Close is the correct one.”

The judge then considered the question of whether or not Hoyland Close could be said to be the respondent’s principal home. He referred to the case of London Borough of Islington v Boyle [2011] EWCA Civ 1450 and the judgment of Etherton LJ at para.55. At para.49, he says:

“The claimant argues that there is now an evidential burden on the defendant to rebut the presumption that she has ceased to reside at Hoyland Close. I do not agree that such an evidential presumption arises from the facts of this case. I am satisfied that the defendant’s regular visiting the property and staying there at weekends show that it continued to be occupied by her as a home. Therefore, the presumption does not arise.”

At para.51, Ms Brazier, that is counsel for the authority before His Honour Judge Mitchell, “submits that the question has to be viewed by looking at all the circumstances, viewed objectively. I agree. It seems to me that a number of matters are relevant. The first is the extent of the occupation, both in terms of the use to which it is put, and the amount of time spent there. But it is not necessarily the only factor. It is not necessarily a question of counting up the number of days spent at each property.” And he goes on to take into account the use of the property, its use as her address for her niece’s school, it remained her address for most of her formal and financial dealings, was used as her address for a bank account and her niece continued to be registered with a GP close to the property.

At para.54, he said:

“The defendant’s intention is a more difficult matter. She clearly did not have the intention of giving up all use of Hoyland Close. I find that in January 2015 she did not intend to remain in Belvedere in the long-term, it was too distant from her mother, she had a baby and wanted her mother’s support. She was no longer working in the Kent area and Linda was becoming old enough to travel alone from Peckham to Thomas Tallis in Greenwich. Nevertheless, I am not satisfied that she had the intention of returning to live permanently at Hoyland Close. This seems to me very unlikely. Her situation as regards the family’s needs for accommodation had increased after the birth of her son, rather than diminished. There could never have been any real chance that she would move back to Hoyland Close permanently, but, on the other hand, there was the question of her security there.”

And, at para.55:

“Taking into account these matters, I am satisfied the defendant wanted to use Hoyland Close as her home, so she could use it as a springboard to move to larger accommodation when she was offered it.”

And his conclusion, at para.56:

“It is always difficult when a party has lied in the course of investigation and to the court, or has lied as happened in this case. Throughout the two-day hearing, I have considered the defendant’s credibility very carefully, but, on balance, I am satisfied that Hoyland Close remained her principal home for reasons that that was her administrative base, it was close to her mother, she had security and she was using it regularly. That means that the claim for possession must be dismissed.”

In terms of the legal framework for this appeal, CPR 52.21 provides that every appeal will be limited to a review of the decision of the lower court unless the court considers that in the circumstances it would be in the interests of justice to hold a re-hearing. Sub-paragraph 3 provides: the appeal court will allow an appeal against a decision of the lower court where the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity in the proceedings in the lower court, and the appeal court may draw any inference of fact which it considers justified on the evidence.

There are six grounds of appeal which are advanced by the appellant. In summary, they are: that the judge made findings contrary to public policy, that the judge made perverse findings, that the judge misdirected himself in law in that he failed correctly to apply the principles set out by Etherton LJ in Islington v Boyle, that the judge failed to take into account relevant matters, that the judge ascribed disproportionate weight to evidence produced by or in support of the respondent, or, alternatively, that the judge was in error in his assessment of the veracity of the respondent and her witnesses, and, finally, that the judge was misled by the respondent in relation to the Gumtree advert in 2012 and this amounted to a serious irregularity.

As I stated, an order was made permitting further evidence to be placed before the court. The witness statement of Christopher Burns, a lawyer with the appellant, concerns the evidence of the respondent placing an advert on the Gumtree website to let the Hoyland Close property on 2nd August 2012. In her testimony before the county court, the respondent claimed that she had taken down the advertisement very quickly and suggested that she took it down a matter of minutes after she had placed it. However, the additional evidence in the witness statement of Mr Burns shows that, following correspondence with Gumtree, it has been established that the advertisement was in fact only deleted on 5th August 2012, and therefore the respondent was not correct when she said that it had been taken down five minutes later.

The witness statement of Christopher Fleming, a counter-fraud specialist employed by the appellant, refers to Mr Burns’ witness statement and the response from Gumtree that I have just referred to. The witness statement also alleges that the respondent made false and misleading statements relating to a Miss Easy. The respondent was cross-examined about Miss Easy and in her answers said that Miss Easy was a friend who was at university in Leicester, who moved back to London briefly to work and then returned to Leicester. However, credit checks obtained by the appellant show that Miss Easy was linked to 16 Hoyland Close during 2013 and 2014, having worked in London for the Financial Ombudsman Service from September 2012, in other words, Mr Fleming submits, from the same time as 16 Hoyland Close became available for sub- letting. His evidence is further to the effect that credit checks do not reveal any connection with Miss Easy having lived in Leicester. The claimant is seeking a retrial on the basis that this further evidence is central to the issue of sub-letting.

Taking then the grounds of appeal in turn, the first ground is that the judge made findings contrary to public policy. It is submitted for the appellant that the judge found as a matter of fact that she did not have an intention to return to the property permanently and she retained the property as a springboard to other social accommodation in the future. For the appellant, it is submitted that to endorse such an approach to social accommodation is contrary to public policy and the purpose of social accommodation, namely to provide affordable housing to those in need and not those who wish to retain an option in the public rental sector. Counsel for the respondent submitted that the appellant had failed to identify the principles of public policy which the appellant says are engaged.

In my view, the judgment of His Honour Judge Mitchell was a finding of fact that the respondent had not ceased to occupy the property. The paragraph in the judgment referring to her intention of retaining the property as a springboard to other accommodation in the future was, in my view, not central to the decision and her motive in my view was not relevant to the decision before him. I do not accept that he in any way endorsed her intention, if that was the position, he merely made a finding of fact in relation to her intention. Further, it does seem to me that for anything of this nature to be made out, the appellant would have had to refer to some basis on which the court should strike this down, other than merely an assertion of being contrary to public policy.

The second ground is stated to be that the judge misdirected himself in the exercise of his discretion in that he made findings so unreasonable as to be perverse. There are then two sub-sets of this ground. The appellant challenges the finding that the subject property remained the respondent’s principal home. Counsel for the appellant submits that, in the circumstances of having found that the respondent could not and would not revert to a previous pattern of occupation and return to live permanently at the subject property, the tenant condition could not therefore be satisfied.

In my view, as I stated in relation to public policy, para.54 of the judgment, dealing with the intention of the respondent, was irrelevant to the judge’s decision on whether or not the tenant condition was satisfied. His decision in relation to whether or not the tenant condition was satisfied is set out at para.49. In that paragraph, he has considered the principles, which he referred to, in the London Borough of Islington v Boyle and applied the staged approach which is set out in that case. The principle as set out at para.51 of the judgment in Islington v Boyle is, firstly, absence by the tenant from the dwelling- house may be sufficiently continuous or lengthy, or combined with other circumstances, as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home.

His Honour Judge Mitchell considered this first stage and took into account the fact that the respondent in this case had two homes and, therefore, the position must be viewed with particular care in order to assess whether the tenant has ceased to occupy as a home a place where he or she formerly lived. However, having reached a conclusion as a matter of fact, that the property continued to be occupied by her as a home there was no error, it seems to me, on the part of the judge when he then stated that he did not have to move to the second stage of the test. The second stage of the test only applies where, assuming the circumstances or absence of such give rise to the inference that the tenant has ceased to occupy the dwelling as his or her home. Given his finding, he did not have to move to the second stage.

The second sub-set of ground 2 is that the judge found that the respondent had received payment in respect of the occupation of the property. However, he also found that the respondent had not parted with possession of the whole or part of the property and it was submitted for the appellant that the two positions could not be reconciled. I do not accept that submission. Without a grant of exclusive possession, there could not be a sub- let of the property. The payments are not in themselves determinative as to whether or not the property had been sub- let. It was a studio flat and, as noted in the judgment at paras.44 and 59, the judge found that, in the circumstances, the respondent had not parted with possession of all or part of the property. At para.59, the judge said:

“She cannot be said to have parted with part of the possession of the dwelling house. She was still using the common areas, the kitchen and the bathroom at weekends. There was only a single room for living. Miss Olujudu did not have her own bedroom.”

The challenge to the finding that she had not ceased to occupy the property is, in my view, a disagreement by the appellant with the judge’s finding on the facts. It does not amount to a failure by the judge.

Turning then to ground 3. Ground 3 is that the judge misdirected himself in law, that he failed to correctly apply the principles set out by Etherton LJ in Islington v Boyle. In particular, for the appellant, it is said that the judge was in error in that he declined to accept that the burden of proof had reversed, and the onus was on the respondent to rebut the presumption that she had ceased to occupy the subject property as her home.

I have already set out the references in the judgment where the judge correctly referred himself to Islington v Boyle, and referred expressly to para.55 of the judgment in that case. I have also dealt with the fact that Islington v Boyle makes it clear that there is a two-stage test and the judge concluded that, in this case, he was satisfied that the respondent met the first stage of the test and, therefore, he did not have to move to the second stage and the onus of proof did not therefore move. On that basis, there can be no error in the finding of the judge and his approach to the burden of proof.

It is also submitted under this ground that the appellant had established sufficient primary facts to establish the inference that the respondent had ceased to occupy the property as her main home. This seems to me clearly to be no more than a disagreement with the findings of fact. It is clear from the judgment that the judge reached his conclusion, taking account of the evidence of the respondent’s mother - and I have referred to the relevant extract – as supported by the note from the social worker and, on that basis, concluded that he accepted the respondent’s account of how she would use the property. It seems to me that this conclusion on the facts was a conclusion which was open to him and there was no error in this regard.

I was referred to the case of Dove v Havering, but it seems to me that this does not assist on determining the facts and particular circumstances of this case. It merely confirms the applications of the principles in Islington v Boyle, which, as I have said and referred to, in my view, the judge correctly both referred to and applied.

The fourth ground alleged is that the judge was in error in that he failed to take account of relevant matters. The relevant matters are stated to be financial links of three third parties to the subject property, as illustrated by credit checks put in evidence by the appellant, and, secondly, the exclusion of the respondent from the property at the date of the expiry of the notice to quit, when the locks had been changed and the respondent accepted she did not return to the property until May 2015.

As regards the financial links, I have already referred to the finding of the judge that the respondent did receive payments from Miss Olujudu. Insofar as the appellant complains that the judge did not deal with the evidence of Mr Beswick, which showed links of various named individuals to the property in credit reports, firstly, I note, as I said at the outset, the voluminous evidence over two days to which the judge referred and, further, that the credit reports do not, of themselves, establish occupation. It is well-established that a judge does not have to deal with every piece of evidence in his judgment and, in my view, this particular piece of evidence in relation to credit reports was not so substantial as to require the judge to deal with it expressly and his failure to do so does not place him in error, nor does it suggest that he failed to take into account relevant matters.

As to the point that the respondent was excluded from the property on eviction, again, I refer to the extract of the judgment where the judge stated that it was not a case of adding up the number of days for which a person had been occupying the property. Counsel for the appellant submitted that the respondent had been absent from the property for some considerable time at this point, but was unable to make good that submission. It seems to me, therefore, that there was no failure by the judge to take into account relevant matters. He considered the pattern of occupation by the respondent and the approach which he took to the question of number of days was not challenged.

The fifth ground is that the judge was in error in that he ascribed disproportionate weight to evidence adduced by or in support of the respondent, further or alternatively, the judge was in error in his assessment of the veracity of the respondent and her wit nesses. For the appellant, it is submitted that the approach of the judge to the evidence of the respondent was in error because he accepted the respondent’s case as a whole in spite of finding that she had lied on her council tax form, that she had attempted to forcibly evict the occupant of the property and had represented to the authority that she had been asked to leave by her landlord in Kent, whereas in fact she had given notice to leave as a result of the appellant’s investigations.

In relation to these three matters, the judge accepted, as I referred above, that the respondent had lied on the council tax form and in interview. He did not find that the respondent had attempted to forcibly evict the occupant. To the contrary, at para.24 of the judgment, he found that she was not putting pressure on her. Be that as it may, the judge assessed her overall credibility at para.34 of his judgment.

I do not accept the submission that the judge ought to have rejected the entirety of the respondent’s evidence on the basis of the fact that she had told lies. The judge noted that people lie for various reasons and in relation to the lies on the council tax form and in interview, he considered the reasons why he felt she would have lied on those occasions. It seems to me that this is a well-established proposition, that people lie for various reasons and their evidence should not be disregarded in its totality without more. His conclusion on the use of the property by the respondent was not based solely on her account; the judge’s conclusions were based on the evidence of her mother, the note from the social worker and the inferences he drew from this evidence and the circumstances of her administrative arrangements, the bank accounts, the GP, the school.

The appellant also contends that the judge failed to assess, properly or at all, what is termed the respondent’s “selective presentation of information”, and the appellant refers to a failure to call Miss Olujudu, a failure to be frank in relation to matters relating to her partner and, in particular, his links with the property in Kent, and her failure to produce a copy of the tenancy agreement for the property in Kent. It seems to me that the burden of proof lay with the appellant. I have already made clear that the judge accepted that he would treat the evidence of the respondent with great caution and he noted that she was prepared to lie to assist her case. It was not the position that the evidence in relation to the partners’ use of the property went to the question of sub- letting of the Hoyland Close property and in relation to Miss Olujudu, there had been conversations between the appellant and Miss Olujudu on which they relied, and it was not disputed that she was occupying the property. I find no error on the part of the judge in his assessment of the evidence which was placed before him.

It is further alleged that there was an error in the reliance upon the written testimony of what is described as an individual who had allegedly resided in Kent, and it is submitted that the judge should have placed no weight upon such evidence in circumstances where it was accepted that the alleged individual had been deported as an overstayer for immigration purposes. The significance of this evidence is that it went to the question of payments and, as I referred, the judge found that notwithstanding the defendant’s explanation on this point, the judge found that Miss Olujudu had paid the respondent for occupying the property. Further, he said, at para.42, that he placed very little weight on the evidence of this particular individual. It seems to me, therefore, that no error has been made out in this regard.

Finally, the sixth ground is that the judge was misled by the respondent in that she stated in her evidence that the Gumtree adverts in 2012 were removed from the website within a few minutes of being placed, whereas the further evidence now before the court is that these adverts were not removed for several days, and that this amounted to a serious ir regularity in the proceedings at first instance. For the appellant, it is submitted that the judge’s acceptance that the advert had been removed within a few minutes would have had an important influence on the case, in that it was a matter which was central to the issue of sub- letting. It was submitted that this was information which could not have been obtained with reasonable diligence for use at trial and it is submitted that it is not in accordance with the overriding objective and the principles of justice and fairness, therefore, for the decision at first instance to stand.

For the claimant, it was submitted today that the advert on Gumtree shows that the property was available to let in 2012 and that the respondent lied on this matter. Counsel then sought to expand this submission and submitted that a retrial might show that there was in fact other sub- letting in 2012. Counsel for the respondent accepted that the answer given by the respondent in relation to the advert in 2012 was incorrect, however, he refers me to the principles in Ladd v Marshall [1954] EWCA Civ 1, which are set out at para.22 of the judgment in Saluja v Gill [2002] EWHC 1435 (Ch):

“The test in Ladd v Marshall is well known; before new evidence will be allowed to be adduced on an appeal, three conditions ‘must’ be fulfilled namely: (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, (ii) it must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive and (iii) it must be such as is presumably to be believed, or in other words, it must be apparently credible.”

For the respondent, it was submitted that this evidence was evidence which could have been obtained prior to the trial itself, that the appellant was already in correspondence with Gumtree in 2015 and, therefore, it cannot be said that it was unnecessary and disproportionate to obtain information about when the advert was taken down prior to trial. Counsel further submitted that if this is in fact serious, it is a matter which should have been investigated, but, in fact, in his view and submission, he said it is not a matter which has any relevance, given that the central issue before the judge was the sub-letting in 2013 when Miss Olujudu was allowed to live there.

It seems to me that an advertisement seeking to let the property in 2012 does not establish that it was in fact let and it is taking the matter of the sub-letting well beyond the parameters so far investigated to suggest that there may have been other sub- letting in 2012. As discussed, the judge had already assessed the overall credibility of the respondent. He had found that she was prepared to lie and treated her evidence with caution. I do not accept that this issue is such that it would have an important influence on the result of the trial, given that he was already treating her evidence with caution and on the basis that she was prepared to lie. As far as the sub- letting is concerned, again, I am not persuaded that the advert in 2012 was central to the issues that were before the court which focused on the occupation by Miss Olujudu.

I was referred by counsel for the appellant to the case of Space Air Conditioning Plc v Guy & Anor. [2012] EWCA Civ 1664. That case concerned an admitted but uncorrected error in a handed down judgment and I fail to see its relevance in the present context.

It was submitted for the appellant that it would be in accordance with the overriding objective to order a retrial. It seems to me that I am being asked to order a retrial in order to allow the appellant to have two bites at the cherry, to investigate something which could have been investigated prior to trial and possibly to seek to establish sub- letting to another person now that the attempt to establish a sub-letting to Miss Olujudu has failed.

The court has to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. In my view, I am not persuaded that this issue would have an important influence on the result of the trial such that a retrial can be said to be the just result. The appellant has failed to show that the decision of His Honour Judge Mitchell was in any way wrong or procedurally unfair and, accordingly, this appeal is dismissed.