England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
MR RECORDER FLATHER OBE QC
7 RG00459

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2009

Lord Justice Mummery:

The appeal

1. The "under-occupation" provisions in the Housing Act 1985 (the 1985 Act) enable the landlord of a secure tenancy to seek an order for possession on the ground that the accommodation afforded is more extensive than is reasonably required by the tenant. However, no order for possession can be made unless the court both considers that it is reasonable to make the order and is satisfied that suitable accommodation will be available.
2. Mr Harry Green lives with his sister, Ms Denise Green, in a semi-detached, three bedroom house at 5 Billingbear Lane, Binfield, Bracknell (the House). In 1958 it was let by the Easthampstead RDC, the predecessors- in- title of Bracknell Forest Borough Council (the Council), to Mr James Green. He moved in with his wife and their daughter Denise, who was 4 years old. Their son Harry was born later that year. He has lived there ever since. He is 50 years old and is unmarried. He succeeded to the tenancy on the death of his mother Mrs Evelyn Green on 23 April 2005, his father having died on 27 July 1969 and his mother having then been granted a tenancy, which became a secure tenancy under what is now the 1985 Act. His sister married and lived elsewhere between 1975 and 1984. She then resumed living in the House with her brother.
3. The Council cannot bring the tenancy to an end except by obtaining an order of the court for the possession of the House: s. 82 of the 1985 Act. Section 84(1) provides that an order for possession can only be made on specified grounds-

"The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2."

4. On 27 February 2006 the Council served a notice on Mr Harry Green seeking possession on Ground 16 of Schedule 2 to the 1985 Act. Section 84(2) restricts the circumstances in which an order for possession can be made on the various grounds-

"The court shall not make an order for possession-

(a) on the grounds set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order;

(b) on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect;

(c) on the grounds set out in Part III of that Schedule (grounds 12 to 16) unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect;

and Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant."

5. Section 84(2)(c), which applies to Ground 16, is an amalgam of (a) and (b) in requiring the court to consider both the reasonableness of making a possession order and the availability of suitable accommodation. Ground 16 itself provides that-

"The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant and –

(a) the tenancy is vested in the tenant by virtue of section 89 (succession to periodic tenancy), the tenant being qualified to succeed by virtue of section 87(b) (members of family other than spouse), and

(b) notice of the proceedings for possession was served under section 83 (or, where no such notice was served, the proceedings for possession were begun) more than six months but less than twelve months after the date of the previous tenant's death.

The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include-

(a) the age of the tenant,

(b) the period during which the tenant has occupied the dwelling-house as his only or principal home; and

(c) any financial or other support given by the tenant to the previous tenant."

6. Note that the specified mandatory matters for reasonableness do not include the availability of suitable accommodation. The list is not, however, an exclusive statement of relevance in relation to the reasonableness of making an order.
7. On 21 January 2008 Mr Recorder Flather QC dismissed the Council's possession proceedings. The Recorder found that the accommodation is more extensive than is reasonably required by the tenant and that alternative accommodation offered by the Council in the Binfield area is suitable, but held that it is not reasonable to make an order for possession. He said that the facts of the case were unusual.
8. On 7 October 2008 Rix LJ granted permission for the Council to appeal on two grounds only. Ground 1 is that the Recorder gave insufficient weight to the factors relied on by the Council. Ground 2 is that the Recorder misdirected himself by wrongly excluding the availability of suitable accommodation from his consideration whether it was reasonable to make a possession order.
9. On 11 February 2008 the Council transferred the House, along with the rest of its housing stock, to Bracknell Forest Homes Limited, a registered social landlord, applied to be substituted as the appellant in this appeal and to take over the proceedings. Mr Green is now an assured tenant of that landlord. We are told that he enjoys broadly the same protection as he previously had as a secure tenant of the Council.

The judgment

10. The Recorder summarised the facts, cited the main provisions of the 1985 Act and found as a fact that the accommodation afforded was more extensive than was reasonably required by Mr Green.
11. As for the availability of suitable accommodation the Recorder said-

"4.5 The issue of suitable alternative accommodation was much discussed at the hearing. Four properties were offered to Harry Green and his sister as alternative and suitable accommodations. They declined to see any of them. I saw photographs of them and I was given the dimensions of each of them. I believe "Red Rose" is suitable alternative accommodation. This bungalow is a two bedroom property with a living room and garden. Although inferior in almost every way to the Property it is nevertheless in my opinion suitable. However there is no point in discussing this issue until first the issue of reasonableness has been decided. Plainly if it is unreasonable to make a possession order it is immaterial whether suitable alternative accommodation is available."

12. On appeal the Council contended that the last two sentences of the paragraph are plainly wrong in law, that this court must allow the appeal and that the case should be remitted to the county court for a new trial. I will leave the detail for later discussion.
13. The Recorder next conducted a balancing exercise, weighing the reasons why the Council wanted possession against the reasons why Mr Green wanted to stay sharing his home with his sister in the House.
14. The Recorder stated that the case for the Council is very clear: the House is part of its dwindling social housing stock, which has been much reduced by the right to buy legislation and has not been replenished; there is a long list of prospective tenants seeking social housing; 3 bedroom houses are needed for families with 2 or more children; and the House is a public resource worth £½m, which the Greens have used for 50 years and it is time to let somebody else use it.
15. As for Mr Green, the Recorder considered his circumstances - his age and the length of time that he has lived in the House, both being mandatory matters under Ground 16, and the permanently destabilising effect on him of being made to move. The Recorder considered the sharing of the House by brother and sister; their genuine emotional attachment to it "as part of the family" and, as revealed in their evidence, the depth of their feelings and their upset at the prospect of having to move; and, consistently with that, their refusal to see any of the 4 properties generously offered by the Council.
16. The Recorder concluded

"6. My impression of the Defendants' situation is as follows. Harry is a bachelor who has lived in the property the whole of his life. So that is almost 50 years of living there. He lives with his 53 year old sister who has also lived in the property all her life, bar a few years. They are long standing members of a smallish neighbourhood. They are likely to live together for the rest of their joint lives. If left alone they would do so in the property. They are decent law abiding folk and I heard no complaint about the way the tenancy was maintained. Without families of their own, but having each other they wish to go on living in the family home where their decades of family memories which they hold dear are all located. The property provides them with a profound sense of security - connected as it is with their family memories - which sustains them. They are unable to move for that reason from the property. In my judgment if they were forced out of this property it is highly likely – and in probability terms I mean 80% likely - that they would never be able to settle down anywhere else for the rest of their lives. Whilst I recognise the merits of the Claimant's case only too well, the implementation of its policy in this instance would permanently destabilise these two individuals which in the balance of things is not acceptable. So I do not consider on the unusual facts of this case that it would be reasonable to make a possession order."

Council's submissions

17. The Council's first criticism of the Recorder's judgment is that it gave insufficient weight to the factors which make it reasonable to order possession. Enfield LBC v. French [1984] 17 HLR 211 and Manchester City Council v. Dawn Benjamin [2008] EWCA Civ 189 [2008] HLR 38 were cited as cases in which this court held that, in all the circumstances of those cases, the waiting list factor and the importance of the better deployment of public housing stock carried sufficient weight to justify an order for possession. The complaint is that the Recorder gave too little weight to those factors, in particular to the evidence of the long waiting list of applicants for this type of housing.
18. The Council's second and more substantial criticism is that the availability of suitable accommodation was not taken into account as a factor relevant to the reasonableness of making a possession order. This is not a case in which there is a risk that the tenant and his sister will be "street homeless" with nowhere to go. It is said that the Council's generous offer of suitable accommodation makes it reasonable to order possession. The legal misdirection at the end of paragraph 4.5 of the judgment was in saying that there was no point in discussing the issue of suitable accommodation until the issue of reasonableness had been decided, and in adding that, if it is unreasonable to make a possession order, "it is immaterial whether suitable alternative accommodation is available."
19. Mr Carter, who appeared for the Council, cited Somervell LJ in Cresswell v. Hodgson [1951] 2KB 92 at page 95 on the effect of similar restrictions on possession orders in the Rent Acts-

" ….the county court judge must look at the effect of the order on each party to it. I do not see how it is possible to consider whether it is reasonable to make an order unless you consider its effect on landlord and tenant, firstly if you make it and secondly if you do not. I do not think we should say anything which restricts the circumstances which the county court judge should take into consideration."

20. Mr Carter said that the Recorder wrongly restricted his consideration of the relevant circumstances by treating the availability of suitable accommodation as immaterial to the issue of reasonableness. He should have taken that into account in connection with reasonableness along with all the other factors, including the fact and degree of under-occupation.
21. Cumming v. Danson [1942] 2 All ER 653 was relied on for the propositions that (1) the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing (page 655E) and (2) there is a fundamental difference in the Rent Acts between an application for possession where no alternative accommodation is offered and an application where it is offered (page 657F). It was submitted that in Enfield LBC v. French (1984) 17 HLR 211 at 215-216 Stephenson LJ indicated that the question of whether the accommodation was suitable should be decided before the question whether it was reasonable to make an order for possession. In this case, Mr Carter argued, the availability of alternative accommodation, which the judge had found was suitable, is clearly relevant to whether it is reasonable to make an order for possession. Yet the Recorder said that it was immaterial.

Discussion and conclusion

Review on appeal

22. How should this court approach the Council's appeal? The relevant contested question in the lower court was whether it is reasonable to make an order for possession. The Recorder heard all the evidence and the arguments. He found the facts. It was for him to carry out the balancing exercise and assess the relative weight of all the circumstances relevant to the decision.
23. By its very nature the Recorder's decision is difficult to appeal. The role of the Court of Appeal under Part 52 CPR is, in general, limited to a review of the decision of the lower court. The appeal is not a re-hearing or re-trial of the case. Counsel cited possession cases on the Rent Acts, under which no order could be made for the recovery of possession of a dwelling house to which the Acts applied, unless the court considered it reasonable to make such an order. The position of the Court of Appeal on such appeals under the repealed Rules of the Supreme Court was that it was undesirable for the Court of Appeal to interfere with the decision of the county court judge, unless there was an error of principle, or a mistake of law, or he had plainly gone wrong. As was said, for example, in Cresswell v. Hodgson ...see above at 95, 96 and 97) the county court judge was given "a very wide discretion" to be exercised in the light of all the circumstances, that it was a solely a question of fact for him and that it was impossible for the Court of Appeal to say he had gone wrong simply because he or someone else might have arrived at another decision.
24. Mr Carter accepted that the judgment below recited the circumstances of the Council's diminished social housing stock, the shortage of and the demand for 3 bedroom houses and the number of people on the housing list, but he criticised the Recorder for placing less weight on those factors than he placed on the personal circumstances of the tenant and his sister. He complained that the judgment failed to explain how or why their family and personal circumstances outweigh the combined facts of under-occupation of the House, the refusal of the Council's generous offer of suitable accommodation, the pressing claims of hundreds of needy families waiting for years for a 3 bedroom house on the waiting list and the other public interest factors relied on by the Council. Simply reciting the factors favouring the making of a possession order is not sufficient: there should be a proper balancing of those factors against other factors and some proper reasoning for reaching one result rather than another.
25. The precise nature of the question for decision in the lower court affects the approach of the Court of Appeal to criticisms of the decision. The Recorder had to decide: is it reasonable to make an order for possession? On an appeal from the lower court's decision on that question I am guided by some recent cases in which Lord Hoffmann has made a valuable analysis of the appellate function. His overall conclusion, with which other members of the House of Lords agreed, was that appellate courts should be "very cautious in differing from the judge's evaluation" of the facts in cases where a reference to, or an application of, an imprecise legal standard to the facts of the case is a matter of degree rather than of principle. In Biogen v. Medeva plc [1997] RPC 1 at 45 he said-

"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression that was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualifications and nuance (as Renan said, la verit??e est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."

26. Although that was said in a patent appeal in the context of the issue of the obviousness of an invention Lord Hoffmann's analysis has a wider application. In my judgment, it applies to appeals involving issues such as the reasonableness of making a possession order. That restriction on making a possession order requires the lower court to apply an imprecise legal standard to the overall evaluation of all the circumstances relevant to that issue.
27. Appellate reticence is not confined to cases turning on the assessment of the credibility of witnesses who have given oral evidence in the lower court or to cases involving the lower court's exercise of a judicial discretion. It also befits the case of the lower court's overall evaluation of facts on the application of an imprecise legal standard rather than of a particular legal principle: see also George Mitchell (Chesterhall) Ltd v. Finney Lock Seeds Ltd [1983] 2 AC 803 at 815-816; Re Grayan Building Services Ltd [1995] Ch 241 at 254 and Designers Guild (Textiles) Ltd v. Russell Williams (Textiles) Ltd [2000] 1 WLR 2416 at 2423 H and 2435E.
28. There is nothing novel in this approach. In the earlier authorities the appellate court regularly referred to "matters of judgment" or "matters of fact or degree", with which the Court of Appeal would not interfere in the absence of a legal error or a plainly wrong outcome. Lord Hoffmann has refreshed the traditional language with his own words and has reiterated the prudence of keeping appellate judging within the sensible limits.
29. The more recent authorities are outside the areas of housing and landlord and tenant law. Yet the principles re-iterated in them are also a salutary reminder that, in general, an appeal court should not be overcritical of the lack of detailed discussion in the judgment of the lower court. The authorities deserve to be more widely known outside the specialised areas of law on which they were decided. They clarify the more general point that the appeal process is not there merely for having another go at the kind of fact-based issue that the lower court is often better placed to assess than a law oriented appellate court is.
30. In brief, for good reason, this court should be slow to upset the Recorder's evaluation of reasonableness on the possession order issue, unless it is clear that he acted under an error of principle or unless his decision was obviously wrong.

Misdirection on suitable accommodation

31. Mr Carter based his point that the Recorder misdirected himself in law on the last two sentences of paragraph 4.5 of the judgment (quoted above). Read in isolation from the rest of the judgment they can be read as a misdirection that suitable accommodation was irrelevant to the reasonableness of a possession order, but their wider context must be examined.
32. The starting point is that suitable accommodation is not singled out for special mention in the list of mandatory factors specified in Ground 16. Section 84(2) (c) mentions reasonableness before suitable accommodation, but Mr Jan Luba QC, who appeared for Mr Harry Green, accepted that suitable accommodation is also relevant to reasonableness. He agreed that the language and structure of the provision does not prescribe a sequence in which totally separate decisions have to be made, first, on reasonableness and, secondly, on the availability of suitable accommodation. He did not contend that the latter part of the provision would be superfluous, if, as he accepted, suitable accommodation was also a factor relevant to the reasonableness of making a possession order.
33. In my judgment, if the court decides that, in all the circumstances, it is reasonable to make an order for possession, the court must then re-visit available suitable accommodation as a specified circumstance. The real issue is whether the Recorder in fact took the availability of suitable accommodation into account as a relevant consideration when he decided that it was not reasonable to make an order for possession. If he did, that was the end of the matter and there was no need to re-visit suitable accommodation specifically.
34. Reading the judgment as a whole and the last two sentences of paragraph 4.5 in their context I am satisfied that the Recorder had the availability of suitable accommodation well in mind throughout his consideration of the Council's claim. He gave it proper consideration before deciding to refuse the application for a possession order. It was a point on which he found in favour of the Council. Immediately before dealing with the reasonableness issue he referred to the discussion of suitable alternative accommodation, to the various properties offered, to the Greens declining to see them and to his belief that one of them, "Red Rose", was suitable. Later, in dealing with the evidence of the parties on the issue of reasonableness he referred (in paragraph 5) to the refusal of the Greens to see any of the 4 properties "generously offered" by the Council.
35. Taking into account all the factors relevant to the reasonableness of making a possession order, the Recorder was entitled to conclude that the combination of factors relied on by the Council, including the offer of suitable accommodation, was outweighed by the length of Mr Green's occupation of the House, his personal and family circumstances, his age and the permanently destabilising effect of a possession order on him.
36. The Council's complaint, as it seems to me, is that the Recorder did not treat the offer of suitable accommodation factor as decisive in its favour. The Council is obviously in a very difficult and unenviable position. Everybody knows about the multitude of housing problems facing housing authorities every day: depleted public housing stock, housing shortages generally, the rising tide of repossessions, the horrors of homelessness, the well-nigh impossible task of resolving competing priorities satisfactorily, the depressing length of waiting lists and waiting times and so on and so on.
37. However, the statutory requirement the court had to consider was whether it was reasonable to make the possession order sought against Mr Green. The Recorder had to consider all the relevant circumstances. The judicial process of balancing the circumstances, some pointing one way and some the other way, is for the lower Court, not for the Council nor for this court on an appeal. The terms of the 1985 Act expressly contemplate cases in which the tenant's personal circumstances, such as Mr Green's age and his unusually long period of occupation, may outweigh the pressures on public housing and other factors. The facts are, as the Recorder said, unusual. One wonders how many people in their 50s still live in the house where they were born? Add to the unusual length of occupation the judge's strong finding of fact on the probability of permanent destabilisation of the Greens as a result of the order for possession and I think that one can readily appreciate why the judge decided that it was not reasonable to make a possession order against Mr Green.

Result

38. At the end of the oral hearing we announced that the appeal would be dismissed and that our judgments would be put in writing.
39. After hearing submissions on costs we decided that the Council would be ordered to pay the first respondent's costs of the appeal, such costs to be the subject of a detailed assessment. There will also be a detailed assessment of the first respondent's publicly funded costs. The second respondent attended in person, but was not represented and made no separate submissions to the court on costs or on any other matter. She was, however, earlier represented in the appeal by solicitors acting under a legal aid certificate. She is entitled to her costs in respect of that representation.
40. As the Council's appeal has been dismissed it is unnecessary for the court to make any order on the application for substitution of parties arising from the transfer of the Council's housing stock.

Lord Justice Lawrence Collins:

41. I agree.

Lord Justice Rimer:

42. I also agree.