England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CROYDON COUNTY COURT
HHJ ELLIS
8CR20284

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/07/2010

Lord Justice Mummery :

The issue

1. This appeal is from an order of HHJ Ellis dated 6 October 2009. After a three day trial he dismissed a claim brought by the Metropolitan Housing Trust (MHT), a registered social landlord, against Mr Hadjazi, a periodic assured tenant, for possession of a four bedroom house at 123 Northwood Road, Thornton Heath (the Property). He awarded costs against MHT and refused permission to appeal.
2. MHT sought possession of the Property on three discretionary grounds: ground 12 (breach of tenancy obligation), ground 14 (nuisance or annoyance) and ground 14A (domestic violence) of Schedule 2 to the Housing Act 1988 (the 1988 Act). The judge found that MHT had not made out any of those grounds. Mr Hadjazi says that he is willing to move to suitable alternative accommodation, but MHT have not made him an offer and cannot be required to do so, if they can obtain an order for possession on one or more of the three grounds.
3. Under s7(4) of the 1988 Act the court can only make an order for possession if satisfied that it would be reasonable to do so. The judge gave reasons why, even if MHT had made out one or more of the grounds, it would not have been reasonable in all the circumstances to make a possession order.
4. The appeal, for which Lloyd LJ gave permission on 17 December 2009, turns principally on whether the judge correctly interpreted and applied what he described as the "key ground in the case" (ground 14A), to the facts found by him. That ground was introduced by s149 of the Housing Act 1996, as amended, and provides that domestic violence is a ground for seeking possession in the following circumstances:-

"The dwelling-house was occupied (whether alone or with others) by a married couple, a couple who are civil partners of each other, a couple living together as husband and wife or a couple living together as if they were civil partners, and:

(a) one or both of the partners is a tenant of the dwelling-house,

(b) the landlord who is seeking possession is a registered social landlord or a charitable housing trust,

(c) one partner has left the dwelling house because of violence or threats of violence by the other towards-

(i) that partner, or

(ii) a member of the family of that partner who was residing with that partner immediately before the partner left, and

(d) the court is satisfied that the partner who has left is unlikely to return."

5. The issue is whether ground 14A is confined to cases where a couple were living together in the dwelling house immediately before the victim of the violence left. In this case the judge found that the violence or threats of violence that caused Mr Hadjazi's wife and children to leave the Property occurred not while they were a couple living together in the Property, but after Mr Hadjazi left the Property and went to live temporarily elsewhere. He continued to be violent towards them until they left the Property. He then returned to live there on his own.

The possession proceedings

6. Mr Hadjazi was granted a tenancy of the Property under an assured tenancy agreement dated 28 April 2003. Clause 3 (5) of the tenancy agreement provided that-

"You must not cause nuisance to or annoy neighbours or any others visiting or engaged in lawful activity in the locality of the property. You must not allow people who live with you, your pets or visitors, to do this. While the courts have the final decision, we will initially decide what nuisance is."

7. Clause 3 (7) (a) of the tenancy agreement provided that-

"You must not harass anyone, particularly because of their race, colour, religion, age, sex, sexual orientation, economic status, immigration status or disability. In particular you must not do this on or near any Trust property. You must not allow anyone living with you or visiting to do this."

8. The clause defined "harassment" as including "violence or threats of violence."
9. Mr Hadjazi lived in the Property together with his wife and four young children. From 2000 onwards there was a history of physical violence and threats of violence by Mr Hadjazi towards his wife and children. In July 2006 he left his wife. She remained with the children in the Property. She hoped that he would mend his ways and that the aggression would stop.
10. Mr Hadjazi's aggressive behaviour continued after the separation. There were proceedings under the Children Act in which detailed adverse findings of domestic violence towards the wife (including an attempt to strangle and kill her) and towards the children both before and after separation were made against him. Those findings were ultimately accepted as binding and correct by Mr Hadjazi in the possession proceedings. In April 2007 he breached an injunction (with power of arrest) made against him in March 2007. He received a suspended sentence. There were later acts of violence. In November 2007 the wife and children left the Property on the advice of Social Services. They have been re-housed at a location not known to Mr Hadjazi.
11. In December 2007 Mr Hadjazi returned to live in the Property. He has been living there ever since on his own. In January 2008 MHT served him with a notice seeking possession of the Property on grounds 12, 14 and 14A. On 20 February 2008 possession proceedings were commenced. They were heard at the end of September and beginning of October 2008.

The judgment

12. The judge concluded that Mr Hadjazi's conduct between November 2006 and November 2007, when the parties were living apart, caused his wife to leave the Property. He found that, had Mr Hadjazi behaved himself after his voluntary departure from the Property in July 2006, his wife and children would have continued to live there. The finding that Mr Hadjazi's conduct after his departure caused her to leave has been referred to in argument as "the causation point."
13. The judge held that Mr Hadjazi's conduct did not fall within ground 12, which refers to breach or non-performance of any obligation of the tenancy, other than one related to the payment of rent. The judge concluded that the obligation in clause 3(5) had not been breached, as it was clearly directed to neighbours rather than nuisance to a spouse or partner or children within the Property and he was not satisfied that it had been made out on the facts, or was a reason for making a possession order. As for breach of the obligation in clause 3 (7) (a) there was evidence that Mr Hadjazi had harassed his wife and children by way of violence and threats of violence while they remained living in the Property. However, the judge concluded that the clause is "really directed against others outside the Property who are living nearby or on the Trust property for any reason." It did not fit the facts of this case and was not a reason for making a possession order.
14. The judge also held that Mr Hadjazi's conduct towards his wife and children did not fall within ground 14 which states-

"The tenant or a person residing in or visiting the dwelling house has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or has been convicted of [various offences which do not arise in this case]."

15. The judge concluded that, for reasons similar to those relating to other alleged breaches of the tenancy agreement, the ground was not made out, certainly not so as to justify an order for possession.
16. As for the key ground 14A the judge accepted the submission on behalf of Mr Hadjazi that the ground was in the nature of a penalty on the partner ordered to leave and that "the principle against doubtful penalisation" should be applied to its interpretation i.e. a person should not be penalised except under clear law: Bennion on Statutory Interpretation at paragraph 271. An order for possession would be penal, as it would inflict hardship, detriment and deprivation on Mr Hadjazi. He would be treated as intentionally homeless with a bleak prospect of being re-housed.
17. Guided by that principle of construction the judge held that ground 14A only applied to the case of violence or threats of violence proved against Mr Hadjazi while he and his wife were living together in the Property as a couple. It did not apply to this case, as he found that the effective violence and threats occurred after they ceased to live together. This has been referred to in argument as "the construction point." On that construction the judge held that there was no ground upon which he could make an order for possession. The judge said

"25. It seems to me that what must have been intended by parliament and what is implicit in the ground is that one partner has left because of violence or threats of violence by the other during the time that the couple were living together. And to the extent that that is an ambiguity in the ground, then that has to be construed in favour of the defendant for the reason I have given."

18. The judge added that, if he was wrong in his construction of ground 14A and that ground had been made out on the facts, he would have had to go on to consider the question whether it was reasonable in all the circumstances to make an order for possession. He described that as involving a difficult balancing act. On the one hand there was "domestic violence of a very serious kind" which Mr Hadjazi had continued to deny "until very recently", even after the findings of fact in the Children Act proceedings, and so there had to be a fact-finding hearing. He failed fully to understand the impact on his wife and children, though he was now prepared to engage in a domestic violence intervention programme and had demonstrated a degree of co-operation in offering to move to smaller accommodation. The judge also took account of his illness (bladder cancer) and the devastating effect of an order for possession on a single man in his position.
19. Weighing up those matters the judge said-

"33. … I would have concluded in fact that it would not have been reasonable in the particular facts of this case to make an outright possession order…"

Grounds of appeal

20. Mr Harrap, appearing for MHT, contends, first, that the judge erred in law in the way he interpreted and applied ground 14A. He submits that the ground is not confined to cases in which one party left as a result of violence or threats during the period of their co-habitation. The express words of ground 14A contain no such limitation nor is there any justification for implying one. The ground merely requires that there was occupation (in this case by a married couple) and that one of the couple has left because of violence of or threats by the other. That is what had happened in this case. The judge wrongly regarded the ground as ambiguous and penal in effect, and that had led him to construe it in a way not intended by Parliament.
21. Secondly, the judge erred in holding that the ground had not been made out on the facts. Mr Hadjazi was and continued to be the tenant of the Property in which he and his wife had lived together. He had not given up possession when he moved out. He left only temporarily. The violence and threats continued. His wife and children left because of his violence and threats. He had gone back into occupation of the Property and they were unlikely to return.
22. Thirdly, the judge erred in his assessment of whether it would be reasonable to make an order for possession. He had not heard oral evidence from Mr Hadjazi tested in cross examination. Only at a late stage did Mr Hadjazi express any regret for his conduct and then only through his representative. The judge failed to take important matters into account, such as Mr Hadjazi's breach of the injunction resulting in a suspended sentence, the fact that he was able to live away from the Property for more than a year and that Social Services supported his application for accommodation under the homelessness legislation.
23. As for the clauses of the tenancy agreement said to have been breached and relied upon under Ground 12 Mr Harrap says that they extend to the protection of members of the tenant's household, as well as to neighbours, to visitors and to those working in the locality, from nuisance and annoyance. It is contended that Parliament cannot have intended such conduct to be unacceptable when directed to neighbours, but acceptable when directed to members of the tenant's own household living in the property. They were closest to the source or locality of the violence and within the range of that conduct. See, for example, Manchester City Council v. Lawler & McMillan (1999) 31 HLR 119.
24. As for ground 14 Mr Harrap says that it extends to the protection of those residing with the tenant in the Property and engaged in a lawful activity, as well as to other people residing in the locality, from harassment by the tenant.

Discussion and conclusion

Ground 14A

25. Mr Jan Luba QC, who appears for Mr Hadjazi, supports both the construction of ground 14A adopted by the judge and his view that it would not, in any event, be reasonable to make a possession order. He also contends that, if he is wrong on those points, the matter has to be remitted to the county court for a proper adjudication on the causation point.
26. His primary contention is that ground 14A is clearly a closely circumscribed ground for recovery of possession: it only applies to the case of a social landlord, it is only triggered by the victim of the violence leaving because of the violence; and there is no obligation on the landlord to provide alternative accommodation. If an order is made, the consequences are serious for the tenant who is made homeless.
27. Relying on the opening words of the ground, which are in the past tense ("was occupied"), he says that the court has to look back at the events that occurred when there was a couple living together. He emphasises that the use of "was occupied", "has left" and "was residing" indicates that the ground only applies to violence committed or threatened at a time in the past while the dwelling house was occupied by a couple living together as a married couple, or as civil partners, or as if they were either of those. Once one of them has left, as happened in July 2006 when Mr Hadjazi left, they are no longer a couple living together in the house. It is true that at this stage Mr Hadazi and his wife were still married, but they were no longer a couple. The occupation was by Mrs Hadjazi and the children. This ground for possession does not therefore apply to violence or threats after separation. While they are living apart they are not a couple, even though they remain married, or in a civil partnership, as the case may be. Any subsequent violence is not within the domestic occupation of the house as shared by a couple. Mr Luba referred to the terms of s1(2) of the now repealed Domestic Violence and Matrimonial Proceedings Act 1976 and to the case of O'Neill v. Williams [1984] HLR 1 at page 9 for references to living together in the same household as a condition precedent to jurisdiction in cases of domestic violence to grant matrimonial injunctions, including non-molestation and ouster orders.
28. Mr Luba also relies on the causation point. The judge held that the wife had left the Property because of the violence of Mr Hadjazi towards her and the children after they ceased living together following his departure. As the judge had construed the ground as inapplicable in those circumstances, he had not properly dealt with the defence raised by Mr Hadjazi that his conduct after their separation had not in fact been the reason for his wife leaving the Property. He says that she had been co-operating with social services who had advised her to move out. In his defence he denied that the re-housing of his family was as a result of his behaviour. He asserted that his wife and children left the Property at the insistence of Croydon Social Services and that his wife was fearful that the children would be taken into care if she did not leave the Property, given their concern about her parenting capacity. That was her motivation for leaving, not his violence or her fear of violence from him. If the court is against Mr Hadjazi on the construction point, Mr Luba says that the matter should be remitted to the county court for a specific decision on that point.
29. Mr Luba also advances a discrimination objection contending that, on MHT's construction, the ground would operate in a discriminatory way against married couples and civil partners, as compared with those living together "as a husband and wife or as civil partners." The latter would not be treated as a couple if they were no longer living together as if they were a husband and wife or as civil partners. So the ground could not apply to violence or threats after they ceased to live together. That supported the judge's construction that the ground did not apply to any case of violence where the persons concerned had ceased to live together as a couple.
30. I am not persuaded that Mr Luba's submissions on the construction point and the causation point are correct.
31. First, there is nothing ambiguous about either the concept or the wording of ground 14A which could properly attract a principle of interpretation favouring the party to a marriage or civil partnership or equivalent relationship who has been violent or threatening towards the other party to the relationship, thereby causing the other party to leave the property in which they had lived together.
32. Secondly, the fact that the past tense is used in the wording of ground 14A does not support the construction adopted by the judge. I agree that the ground looks to the past, first to the facts of occupation and living together and then to identify the past event that triggers the operation of the ground i.e. the victim of the violence leaving the property because of the violence. The ground also looks to the future to see if the person who has left is unlikely to return. The essential point is that the use of the past tense does not expressly or impliedly require the parties to the relationship to be living together as a couple at the date of the causative violence or at the date of the relevant triggering event. The references to "couple" (and to "partner") do not impose such a requirement: they identify one of two people in a relevant relationship.
33. Thirdly, ground 14A covers the facts found by the judge. The Property was occupied by Mr and Mrs Hadjazi as a married couple, Mr Hadjazi being the tenant of the Property. He was violent towards, and threatened violence to, his wife and children. They separated when he left. The violence continued. His wife and children left the Property as a result of the continuing violence and threats. She is unlikely to return to the Property.
34. Fourthly, the judge's construction defies common sense. Why should the timing of departure from the property by the victim of the violence make any difference to the availability of that ground of possession to the landlord? Why should the perpetrator of the violence be protected against the ground because the violence did not drive the victim out of the property until after the perpetrator of continuing violence has left? Violence by one person in a relationship that causes the other person in the relationship to leave the property is in substance the same inhuman conduct with the same human consequences, whether or not they were still living together at date of the victim's departure. Mr Luba has been unable to suggest any sensible reason why Parliament would make Mr Hadjazi liable to have an order for possession made for what he did when he was living with his family, but not for what he did to them after separation, even though the consequences for the wife and children were the exactly the same: they were driven from the Property by his violence and threats.
35. Fifthly, there is no relevant discrimination that might tend to support the judge's construction. There is no difficulty in applying the ground in the same way to persons who were not married or civil partners, but were living together as if they were. One of them in occupation may be driven out of the property by the violence of the other, whether that other is still in occupation of the property or has left and begins to be, or continues to be, violent towards the other still in occupation.
36. Sixthly, the judge made a clear finding of fact (in paragraph 7) that it was Mr Hadjazi's conduct between November 2006 and November 2007 that caused Mrs Hadjazi to leave the Property. There are no grounds for interfering with it.
37. I would allow MHT's appeal on the construction point. There are no grounds for remitting the causation point to the County Court.

Grounds 12 and 14

38. Although a decision on the availability of the other grounds is unnecessary, we have heard argument about them and I am willing to state shortly my views about them.
39. I agree with the judge that ground 12 does not apply to this case. The obligations in the tenancy agreement relied on, when read in the context of the entire agreement, relate to quiet enjoyment of the Property by the tenant as long as he respects the rights of other tenants of MHT and neighbours. The language of clause 3(5) and clause 3(7)(a) does not cover the tenant's conduct towards his wife and children in the privacy of the home.
40. I also agree with the judge that there are similar objections to the application of ground 14 to the facts of this case. That ground applies to the protection of those, such as neighbours, who live in an area outside the tenant's household or those working in the locality. There is no reference in ground 14 to violence in the property, such as is found in ground 14A which was introduced by s149 of the Housing Act 1996 as a new discrete ground of possession in cases where there has been domestic violence. There would have been no need for the amendment to bring in a distinct ground, if ground 14 had embraced cases of domestic violence. Section 148 of the 1996 Act made amendments to ground 14 by extending it, for example, to the case of nuisance to adjoining occupiers, but did not extend it to internal domestic situations.

Reasonableness

41. On the question whether it would be reasonable to make a possession order I think that this matter must be remitted to the county court for re-consideration in the light of the judgments on this appeal.
42. Mr Luba QC seeks to uphold the part of the judgment in which the judge said that, even if he had accepted MHT's construction of ground 14A, he would have refused an order for possession. Although he accepts that the Property is more extensive than Mr Hadjazi reasonably requires, he points out that Mr Hadjazi is willing to move to more modest alternative accommodation, but he has received no offer from MHT who, it is contended, are trying to evict Mr Hadjazi on fault grounds without re-housing him and are therefore seeking to impose homelessness upon him.
43. Mr Luba also says that the judge was meticulous in his approach to this issue and correctly reminds the court that it should be slow to upset the evaluation made by the trial judge. It must be shown that he acted under an error of principle or that his decision was obviously wrong: Bracknell Forest Borough Council v. Green [2009] HLR 38 at paragraph 30.
44. However, the judge's remarks on reasonableness in his judgment were made in the context of an erroneous approach by him to the construction and application of ground 14A. They do not bind this court or the county court at a remitted hearing. The whole matter of whether it is reasonable to make an order for possession ought to be re-considered by a different judge in the light of the correct construction of ground 14A. The county court judge will be able to consider the whole question of reasonableness afresh with the benefit of evidence of the up-to-date position at the remitted hearing.

Result

45. I would allow the appeal and remit the matter to a different county court judge to reconsider the question whether, in the light of the above construction of ground 14A and the facts of the case, including any fresh evidence of the situation at the date of the remitted hearing, it is reasonable to make an order for possession of the Property.

Sir Paul Kennedy:

46. I agree.

Lord Justice Lloyd:

47. I also agree.