The editor of this section of the site is Harriet Holmes barrister of Tanfield Chambers (www.tanfieldchambers.co.uk)
There are two cases this month:
- Whether, when a secure tenant has use of more than one property, motivation or intention is a relevant factor in determining which is the only or principal home.
- Whether there is a distinction between ‘relevant breaches’ and ‘irrelevant breaches’ when determining whether statutory grounds 12 and 14 of Schedule 2 of the Housing Act 1988 are made out
Only or Principal Home
Southwark LBC v Ibidun
 EWHC 2775 (QB)
When considering whether a secure tenant occupies a property as their only or principal home, the motivation for their intention to return during a period of absence is not a relevant consideration. The burden of proof to show that the property continues to be the sole or principal home will only switch to the tenant when it has been shown that there has been a sustained period of absence. Further, for a property to be sub-let for the purpose of bringing a secure tenancy to an end the tenant must have granted exclusive possession to the sub-lessee - the receipt of rent during periods of absence was not enough.
The Claimant Local Authority sought a possession order against the Defendant on the basis that her tenancy of a studio flat (“the Flat”) was no longer secure because she did not occupy the flat as her only or principal home. D admitted having another home in Kent, and that the flat was lived in by another person.
- Whether in finding that the flat remained the defendant’s principal home because she wanted to use it as a springboard to move to larger accommodation, the judge had adopted an approach to social housing which was contrary to public policy;
- Whether the judge’s finding that the flat had not been sublet was wrong as the other occupier had paid the defendant for living in the flat;
- Whether the burden should have been on the Defendant to prove that she continued to reside in at the Property.
HHJ John Mitchell QC found that the Flat continued to be the Defendant’s principal home on the basis that:
- She continued to use it for most of her formal correspondence;
- She did not intend to remain in her other home in Kent as she had a baby son and needed support from her mother in London (where the subject flat was); and
- Although she did not intend to return to the Flat on a permanent basis, she wanted to keep the flat as her home “so she could use it as a springboard to move to larger accommodation when she was offered it.”
The Judge rejected a submission from the Claimant that Defendant was under an evidential burden to rebut a presumption that she had ceased to reside at the Flat because on the facts of the case. The Defendant continued the visit the property regularly and stayed there at weekends meaning that it continued to be occupied by her as a home.
He also found that the Defendant, though receiving money for the use of the Flat, was not subletting it, because she returned to share the Flat with the alleged sub-lessee at weekends and there was therefore no exclusive possession.
There was various evidence that the flat had been sublet, but the Judge found against the Claimant on the facts. The Claimant also appealed on various grounds attacking the Judge’s approach to the evidence.
Decision on appeal
The grounds of appeal relating to the Judge’s approach to the evidence were all dismissed. Mostyn J held that:
- The Defendant’s motivation for intending to return to the flat and to continue to retain it as her principal home was not relevant to the factual enquiry that the court was called upon to the determine. The key point was that the trial judge had found as a fact that the Defendant continued to occupy the flat as her principal home. Public policy or motive did not form part of the test .
- The trial judge had been correct, having found as fact that the Defendant continued to occupy the flat as her home, to hold that there was no inference or presumption arising that the Defendant had ceased to occupy. The facts of the case were therefore not on all fours with London Borough of Islington v Boyle  EWCA Civ 450, where such a presumption was said to arise, and the burden was placed on the tenant to prove that the flat continued to be her only or principal home  - .
- Without a grant of exclusive possession, there simply could not be a sublet of the Property .
This case provides further guidance on the application of the relevant test as to whether a secure tenant has ceased to occupy a property as their only or principal home. Although in this case the tenant had two homes, the Judge made a finding that she returned regularly to stay at the subject property. On this basis, the Judge held that this was not a case where the tenant’s absence from the property was sufficiently prolonged for the evidence burden to switch to the tenant to show that she still resided at the property, and that such residency was as her sole or principal home (as in Islington v Boyle  EWCA Civ 1450).
The decision also confirms that the test is purely one of fact, and the tenant’s motivations for continuing to maintain the property has her principle home are irrelevant, even if they are arguable ulterior, or could be construed as taking advantage of the system.
Possession Claims, Reasonableness, Disability Discrimination
Teign Housing v Lane
 EWHC 40 (QB)
There is no distinction between ‘relevant breaches’ and ‘irrelevant breaches’ when determining whether statutory grounds 12 and 14 of Schedule 2 of the Housing Act 1988 are made out.
Claimant is a social housing provider and the Defendant is a vulnerable person who had suffered from anti-social behaviour at the hands of a neighbour at his previous home. D suffered from a paranoid personality disorder and was disabled within the meaning of the Equality Act 2010. It was alleged that D, in breach of his tenancy agreement, had:
- removed fixtures and fittings in the kitchen without consent;
- removed a gas flue without consent;
- excluded contractors from the flat;
- installed CCTV without permission, which unsettled his neighbours;
- played loud music;
- behaved aggressively to neighbours;
- threatened a member of the claimant’s staff in a telephone call; and
- left an untaxed car blocking access to the communal car park.
D sought possession relying on grounds 12 (breach of tenancy agreement) and 14 (nuisance or annoyance to neighbours, visitors or contractors) of Schedule 2 of the Housing Act 1988.
- Was the trial judge correct to decide whether certain breaches of a tenancy agreement by a tenant were not ‘relevant breaches’ for the purposes of making out statutory grounds for possession?
- Would making a possession order in circumstances where the breaches had arisen from the tenant’s paranoid personality disorder be reasonable in the circumstances? Did the Judge give sufficient weight to the question of whether D would comply with his tenancy agreement in future and the impact of his behaviour upon other residents?
- Would making possession order amount to disability discrimination contrary to section 15 of the Equality Act 2010?
HH Judge Simon Carr sitting at Truro County Court found that the claimant had not given the defendant permission to carry out any of the works but that the defendant believed that permission had been given because that was what he wanted to hear. The judge rejected the evidence of noise nuisance as exaggerated but concluded that the other allegations made against the defendant were made out.
He held, however, that most of these actions were not “relevant breaches” of the tenancy agreement. Ultimately, he found that it was not reasonable to make a possession order.
The Judge gave the view that even if he was wrong about whether the statutory grounds were made out, it would still not be “reasonable, proportionate or fair” in all the circumstances of the case to grant a possession order. The Judge also said that had it been necessary, he would have also found that a possession order would have amounted to disability discrimination.
Decision on appeal
Dingemans J allowed the appeal and remitted the case for a retrial. He rejected the concept of a ‘relevant breach’ and held that the trial judge should have found, on the evidence , further breaches of the tenancy agreement (in relation to CCTV and dog fouling) and should have considered further whether other behaviour that he found that the tenant had committed amounted to other breaches.
In the circumstances, the judge’s conclusion that a possession order would not be reasonable was unsafe as he had not had a fair opportunity to reflect on all the breaches of tenancy that were proved before making his decision as the reasonableness of the order. Dingemans J also rejected the Respondent’s submission that the trial judge’s conclusion that the possession order would be a breach of the Equality Act should be upheld This was because there was a real prospect of the Claimant being able to show that, given the breaches that have been established and the further breaches that might be established, it was reasonable to order possession and that such an order would not amount to disability discrimination.
The decision of Dingemans J emphasised the established principles by which a judge must decide whether it is reasonable to grant a possession order: the discretion granted is wide, and all the circumstances must be considered. Here, the trial judge’s conclusion as to whether it would be reasonable to grant a possession order was fatally undermined by his erroneous analysis of what breaches of the tenancy agreement had been made out. A judge must have an opportunity to consider the reasonableness of the possession order in the light of all his or her (proper) findings on the alleged breaches and the circumstances of the case. Here, the judge had denied himself that opportunity by a flawed analysis of the evidence before him as to several of the alleged breaches.
The appeal judgment criticised the landlord for not setting out in its claim precisely which terms of the tenancy agreement were said to be breached by the particular allegations of misconduct. Dingemans J considered that this had contributed to the errors made by the judge at first instance and the inability of the appeal court to deal with the issues without remission. Practitioners acting for landlords seeking possession would be wise to provide a proper breakdown of which acts are said to breach each relevant term of the tenancy agreement.
Dingemans J took the opportunity to set out the key principles relating to reasonableness:
- The judge must take into account all relevant circumstances as they exist at the date of the hearing in a broad common-sense way, giving weight to the various factors in the situation (Cumming v Danson  2 All ER 65).
- Reasonableness involves a consideration of the position of both parties and neighbouring tenants are entitled to live free from the anxiety of a recurrence.
- Serious breaches of the tenancy agreement need to be emphasised (West Kent Housing Association v Davies (1999) 31 H.L.R. 415).
Personal fault of the tenant (or the Act being deliberate) is not necessary (Kensington and Chelsea v Simmonds (1997) 29 HLR 507).
- That treatment may improve the position of the tenant was a relevant factor (Croydon LBC v Moody (1998) 31 H.L.R. 738).
- The appeal court may only interfere with the decision of the trial judge when the judge “has so plainly gone wrong in law that the court should interfere…” (Cresswell v Hodgson  1 All E.R. 710).
- When considering whether to give a suspended order the court must assess the prospects that the impugned behaviour will cease. If it is inevitable that a tenant will breach the conditions, the court should not make such an order (Lincoln City Council v Bird  EWHC 843 (QB)).
In relation to discrimination arising from disability under section 15 of the Equality Act, the Judge helpfully restated the additional test that would need to be satisfied, following Aster v Akerman-Livingstone  UKSC 15. When the tenant can show that he or she is a disabled person within the Act and that there was a sufficient causal link between his disability and the relevant conduct, the landlord would have to show that there was no less drastic means of solving the problem the problem than ordering possession.
The court should take a structured approach and consider the following in turn:
- Whether the tenant can show that he has a disability;
- Whether the tenant can show that there was a sufficient causal link between the mental disability and the conduct on which the decision to evict is based; and
- If so, whether the landlord can show that evicting the tenant is a proportionate means of achieving a legitimate aim. When considering whether evicting the tenant would be a proportionate means of achieving a legitimate aim it is necessary for the landlord to show that there was no less drastic means of achieving its aims and that the effect of eviction on the tenant would be outweighed by the benefits to the landlord.
For Dingemans J, any possession order that amounts disability discrimination can never be reasonable for the purposes of the 1988 Act.
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