England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Levy QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 10th July 2002

1. LORD JUSTICE TUCKEY: This is an application for permission to appeal by Mohammed Waris Ali from an order made by His Honour Judge Levy QC in the Central London County Court on 26th April 2002 in which he granted the claimants, Westminster City Council, possession forthwith of 20 Chetwode House on the Lisson Green Estate in London NW8.
2. The applicant and one of his two wives (who is named as the second defendant in the proceedings) had been the secure tenants of this four-bedroomed flat in Chetwode House since 1982. The applicant has eight children. Three of his children by the second defendant are Delwarul, who is now 22; Dobirul, who is now 20; and Mudabbirul, who is now 16 and still at school. In 1992 the second defendant separated from the applicant and was rehoused by the Council in a four-bedroomed flat at 40B Walterton Road, London W9. It is the Council's case that the three boys live at that address with their mother, although occasionally they have stayed with the applicant at Chetwode House. It is not and has never been in dispute that the applicant is concerned with the boys' welfare and has played his role as a father in dealing with the problems which the two elder boys have had with drugs and the police.
3. Since at least 1997 the Council has been planning to demolish Chetwode House. Various offers of alternative accommodation were made to the applicant over the years which he refused. In September 2001 the Council served a notice to quit, relying on ground 10 in Schedule 2 to the Housing Act 1985 and an offer of alternative accommodation to the applicant of a one-bedroomed flat at 22B Alma Square, London NW8. This flat is 1.3 kilometres away from Chetwode House but closer to where the three boys are said to be living with their mother. The applicant was offered several opportunities to see this flat but refused to do so because he said he needed more than one bedroom.
4. By the time the proceedings came before Judge Levy the applicant was nearly the last of the tenants remaining in Chetwode House, where there had been 54 flats. For this reason the district judge expedited the hearing of the Council's claim. The Council filed their evidence in the form of a statement from Mr Lock, their area housing manager, two days before the hearing. The applicant was granted legal aid shortly before the hearing and his solicitors drafted a short statement for him in response to the Council's evidence.
5. On the day of the hearing the applicant was represented by counsel. I do not have a transcript of the early part of the hearing, but on the morning of 26th April counsel apparently applied for an adjournment, which the judge refused. He gave counsel time to consider the papers and the applicant tells me that the case did not resume before Judge Levy until after lunch. In the trial which followed Mr Lock gave evidence and so did the applicant. The judge then gave judgment. I do not know how long the hearing lasted but it obviously went on for some time.
6. The judge in his judgment records that it was agreed that the Council proposed to develop Chetwode House and that notice to quit relying on the offer of alternative accommodation to which I have referred had been given. The issue for the judge in terms of the statute was whether the alternative accommodation was suitable to the needs of the tenant and his family. This in turn raised the question as to whether the applicant had a need to provide permanent accommodation for the three boys. The judge held that he did not. The youngest boy was living permanently with his mother and of the older two the judge said:

"8.... One of the real issues is whether the two sons have been living or permanently resident or at least habitually resident with the father for the last few years.

9.On that the written evidence goes almost all one way. [There he was referring to various exhibits to the statement which Mr Lock had made.] The transfer document [the document in which the applicant had asked for a transfer to other accommodation] does not show either of the sons living there at the time it was created. Neither of the sons have given any evidence to me telling me that they have. The father says it will be good for the two sons to live with him because they are drug addicts and he could better care for them. He asserts that they are living with him. Mr Lock ... found scant signs in the property that those two sons were living there, although he did agree in cross-examination that they might have been.

10.Certainly the father has not shown them on his housing benefit claim forms as living there, and that is a factor which I think should suggest that they were not living there.

11.Doing the best I can on the evidence which has been put before me, [the applicant] has not satisfied me that on the balance of probabilities the sons have been residing with him, or that they need to reside with him in the future."

7. In his grounds of appeal, supported by a skeleton argument and submissions to me this morning, the applicant complains that his trial before the judge was unfair. The failure to grant an adjournment in the circumstances which I have described was, he says, a serious procedural irregularity. I can see nothing to suggest that it was. The decision as to whether or not to adjourn is very much a matter for the discretion of the trial judge, with which this court seldom interferes. Here the applicant was represented by counsel and gave evidence to the judge. There is nothing to suggest that the trial was unfair.
8. Next the applicant has produced documents which show that planning permission has not yet been obtained for the demolition and reconstruction of Chetwode House. I know nothing of the planning history of this site but would be surprised if this was the first application, given that the proposal to demolish at least goes back many years and the other tenants have already vacated the building. At all events the statute only requires the landlord to show that he intends to demolish or reconstruct within a reasonable time of obtaining possession. It was common ground before Judge Levy that this was the case. The fact that planning permission had not been obtained for the latest proposed development does not affect the position.
9. The applicant's real complaint, it seems to me, is that the judge was wrong to conclude that he did not have a need to provide permanent accommodation for his three boys and indeed, he adds, for twin sons born to his other wife who are currently living with her in Birmingham. The question for the judge, however, was a question of fact, as the cases on this legislation make clear. The evidence that the three boys were not living with the applicant was very strong. The twins' mother does not want them to live with the applicant and there are apparently contested proceedings between the parents about this. This court will not usually interfere with a judge's findings of fact in circumstances such as these. I can see no prospect of this court doing so in this case. There was ample evidence to support the judge's conclusions to which I have referred.
10. The judge's forthwith order was unusual but he only made it, as the transcript shows, on the Council's undertaking that they would give the applicant an appointment to move him to the alternative accommodation on or before 7th May. In the event he has not agreed to do so and he is still living in Chetwode House.
11. For the reasons I have given I do not think the applicant's proposed appeal has any real prospect of success and so his application for permission to appeal must be dismissed.
Order: application for permission to appeal dismissed.