England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION )
ON APPEAL FROM LAMBETH COUNTY COURT
(HIS HONOUR JUDGE WELCHMAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th April 2010

Sir Simon Tuckey:

1. This is a renewed application for permission to appeal by Gerard Emeter from a judgment of HHJ Welchman, given in the Lambeth County Court on 10 October 2008, in which he made an order for possession against the applicant in favour of the claimant council landlord.
2. The applicant was granted a secure tenancy of the two-bedroomed flat in question at 32 Elmore House, London SW9 in 1997, following his successful application under the homelessness legislation. The basis for his application was that he and his 18-month-old son had become homeless when his wife, the child's mother, had refused to allow them to continue living with her and an older child. The council's case at trial was that this was a charade. The child had never lived in the flat and the applicant had lived with his wife and children first in Vauxhall and then Barnet where the children had gone to school together.
3. The legal basis for the council's claim of possession was that at the time they served their notice to quit on 23 July 2007 the applicant was not occupying the flat as his only or principal home. Section 81 of the Housing Act 1985 has the effect that, if this condition is not met, the tenant is not a secure tenant entitled to the protection which the legislation gives to such tenancies.
4. After a two-day trial the judge gave a detailed and impressive judgment, in which he concluded, at paragraph 40 of his judgment:

"I…find…that the subject property was not [the applicant's] only or principal home at the material time. He has a presence and a residence elsewhere, but the flat concerned was acquired and has been used by him, most probably acquired but it matters not what his intention was at the outset, but the facts point rather strongly to this being a subterfuge from the very start, but he has utilised it for the making of profit. He did not need it as a home. He has continued his relationship with his wife in the intervening period, and he has not wanted the court or anyone to investigate the situation closely with regard to his wife and his home affairs because he knows full well that that would produce and ensure that the truth in this matter was found out. I find that his son has lived with his mother throughout. Mr Emeter has been closely involved in his son's schooling, but the movement of the children and everything else in this case points, in my judgment, certainly on the balance of probabilities to substantial deceptions on Mr Emeter's part.

5. It is not necessary for me to go into the detail of the deceptions to which the judge refers, but they included a false claim for housing benefit and the use of the address by others to make claims of one kind or another. In fact from the end of 2002 the applicant sub-let or licensed part of the flat to a man called Ike Nuweke, who together with his partner and first one and then two children occupied the flat until mid-2006 and paid the applicant a substantial rent for doing so. The judge found that the applicant had kept a locked room in the flat which he visited and used from time to time adding:

"36. …it may have been a useful postal address; he may have found it useful for a host of reasons at which I am not going to guess; but one can surmise possibilities for reasons of various kinds that he might have found it handy or convenient to keep the property. Indeed he may have wished to remain in control in that if you sub-let the whole of your property not only do you lose the security of tenure (if you were worried about that point) but you lose control, you are less able to influence, keep an eye on what is actually going on and ensure as far as you can that nothing comes to light which is going to bring an end to this quite satisfactory arrangement so far as he was concerned."

6. In reaching the conclusions to which I have referred, the judge rejected the applicant's evidence, in which he had lied about where he was living, his relationship with his wife and Mr Nuweke's occupation of the flat.
7. In making today's renewed application Mr Mark Trafford, who did not appear for the applicant at the trial or indeed settle the grounds of appeal which were rejected by Arden LJ on the papers, has bravely struggled to challenge the judge's conclusions. He argues that the judge gave insufficient weight to the fact that the applicant kept a locked room in the flat which he used from time to time. He submits that at trial the following principles were accepted: to lose secure status the whole of the property must be sub-let; in order to have a principal home a person need not be physically present as long as there is an intention to return home; two houses can be occupied as a home at the same time; and parting with possession is not to be inferred simply from the fact that another person is being allowed to use it during his absence.
8. I accept those propositions except for the first. You do not have to have a sub-letting of the whole before you can conclude that the person who makes that sub-letting is not occupying the property as a whole as his only or principal home. But the essence of the submission is that the judge should have made a more detailed legal analysis of the position based on those other principles, having regard to the fact that the applicant had, kept and from time to time used this single room in the flat. However, I do not accept the submission which Mr Trafford has made about this. The judge was well aware of the evidence about this, as is apparent from what I have already said. It was capable of showing that the flat was the applicant's only or principal home but was not in any way conclusive. In the event, in the face of the judge's other findings it took the applicant nowhere at all: he simply did not keep or use that room as his principal home but for other purposes.
9. Mr Trafford also argues that the judge failed to give sufficient weight to Mr Nuweke's evidence. The judge had quite a lot to say about that evidence. Mr Nuweke, as the judge indicates, obviously found himself to be in a very difficult position. He was a friend of the applicant. Indeed they claimed at various times to be relatives and yet the applicant was denying Mr Nuweke's occupation of the flat. Mr Nuweke's difficulty was that he had produced to the council what he described as a "record" of the rent (that is the word he used), which showed that he had been making substantial payments for his occupation of the flat over the four-year period between 2002 and 2006 to which I have referred. Mr Trafford has produced a witness statement made by Mr Nuweke on 13 April this year in which he seeks to say that what he may or may not have said in the past was the result of confusion on his part, that he had only been living in the flat temporarily and had been let into the flat as a favour whilst he was looking for other accommodation. He adds that he never paid rent for his occupation of the flat but merely made a contribution towards the utilities. This statement is flatly contradictory to the signed statement which he made under the provisions of the Criminal Justice Act to the council, a statement which he declared to be true to the best of his knowledge and belief and if tendered in evidence he would be liable to prosecution if he had stated anything which he knew to be false and did not believe to be true.
10. I am afraid this recent statement from Mr Nuweke takes the applicant's case nowhere at all. His occupation of the flat was demonstrated by the rent record which he kept and to which I have referred and other documents which were before the court, and the judge was perfectly entitled to reach the conclusion that he did about Mr Nuweke and his occupation of the flat.
11. At the end of the day the council's case against the applicant was formidable. His attempts to refute it were rejected by the judge who simply did not accept his evidence. The judge gave entirely convincing reasons for doing so and there is no prospect of this court disagreeing with his conclusions.
12. For these reasons this renewed application for permission to appeal must be dismissed.

Order: Appeal dismissed