Case No: B5/2010/2929
Neutral Citation Number: [2011] EWCA Civ 1171
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
MISS RECORDER GERALDINE CLARK
Claim No: 0CL40085
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/10/2011
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE  LLOYD
and
LORD JUSTICE McFARLANE
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Between :

	MRS AMEERA ABDULLAH	Appellant	
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	WESTMINSTER CITY COUNCIL	Respondent	
			
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(Transcript of the Handed Down Judgment of
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MR CHRISTOPHER BAKER and MS VICTORIA OSLER (instructed by Gillian Radford & Company) for the Appellant
MR IAN PEACOCK (instructed by Legal and Democratic Services, Westminster City Council) for the Respondent

Hearing date: 21st July 2011

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Judgment
Lord Justice Mummery: 
Introduction
1.	Since March 2009 the appellant, Mrs Ameera Abdullah, has been living in a council house at 2 Alperton Street, Westminster, W10. It has 2 bedrooms,  living room, a kitchen and a bathroom. Her husband, Mr Hussain Abdullah, and her mother, Mrs Khawar Hussain, who have held a joint tenancy of the house from the respondent Westminster City Council (the Council) since 2002, and her 18 year old son, Azzad, also live there. Putting legal arguments to one side, 2 Alperton Street would appear to be occupied by them all as their home. The lack of living space for four adults presents problems.
2.	Mrs Abdullah says that she is homeless, or is threatened with homelessness, as her mother has asked her to leave. That maternal plea is the foundation of her claim that the Council is under a statutory duty to provide her with accommodation. Neither the mother joint tenant nor the husband joint tenant has brought any possession proceedings against Mrs Abdullah since she was asked to leave, first in July 2009 and then again in June 2010.
3.	The Council’s position is that Mrs Abdullah is not homeless or threatened with homelessness and that it is under no duty to accommodate her. In particular, the Council says that she has and should be treated as having accommodation available for her occupation by reason of an implied licence to occupy from her mother and her husband; that it would be reasonable for her to continue to occupy; that, as her mother is only one of two joint tenants, she has no power to revoke her daughter’s licence to occupy; and that, as a spouse in the matrimonial home, Mrs Abdullah has “home rights” which prevent her from being evicted or excluded from the house occupied by her with her husband and son.   
4.	The Council’s response reflects the language of s. 175 of the Housing Act 1996 which provides that :-
“(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he-
(i)	is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,
(ii)	has an express or implied licence to occupy, or
(iii)	occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in or restricting the right of another person to recover possession.
(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days.”
5.	The Council relies on s. 30 of the Family Law Act 1996 which provides that where one spouse is entitled to occupy a dwelling-house by virtue of a beneficial estate or interest or contract and the other spouse is not so entitled, the spouse not so entitled has “home rights”. They include a right not to be evicted or excluded from the dwelling-house, or any part of it, by the other spouse, except with the leave of the court.  Section 30(7) provides that the section does not apply to a dwelling-house which, in the case of spouses, has at no time been or intended by them to be a matrimonial home of theirs.
6.	Mrs Abdullah denies that the house is the matrimonial home and adds that the threat of eviction is not “by the other spouse” (Mr H Abdullah), but by her mother (Mrs K Hussain), so that s. 30 does not apply.     
Background and proceedings
7.	On 4 June 2010 Mrs Abdullah formally applied to the Council for housing assistance under Part VII of the Housing Act 1996. On 11 June 2010 the Council gave its decision under s.184 of the Act that she was not homeless and that it was reasonable for her to continue to occupy the house. That decision was upheld by a review decision of 16 August 2010 and her appeal against that decision under s. 204 on a point of law was dismissed with costs by Miss Recorder Geraldine Clark on 24 November 2010. Patten LJ granted permission for a second appeal on 24 March 2011. 
8.	One would not normally expect a person faced with notice to leave a house lived in with other members of their family to assert positively that they have no entitlement to occupy it and no right to resist eviction or exclusion. Yet that is the position adopted by Mrs Abdullah in this case. Courts are used to topsy-turvydom. This instance is the result of the requirement of s.175 of the 1996 Act that, in order to succeed in her claim against the Council to be re-housed, Mrs Abdullah has to say that she has no right to remain in the house, even though that is directly contrary to what she would say to the court if resisting a claim for possession not yet brought against her by her mother or her husband. Her stance is explicable and legally permissible, though its side effects are confusing and unappealing.    
9.	On this appeal, as on the unsuccessful appeal to the County Court, Mrs Abdullah’s case is that she has no rights to occupy the house or prevent her eviction from it and that the Council owes her a full housing duty under s.193 of the 1996 Act. In particular, she says that no licence was impliedly granted to her when she moved into the house with her son; that, if there were a licence to ocupy, it could be revoked by her mother without the consent or participation of her husband as joint tenant; that the house she lives in with her husband and her son is not the matrimonial home, so that she has no “home rights” against her husband; and that, in any event, she has no matrimonial home rights against her mother, who is not prevented by the terms of s.30 from evicting or excluding her from the house.
10.	Whatever the legal position may be (see below), the family situation is certainly not good. Mrs Abdullah and her husband, who are citizens of Iraq, have marital problems. He fled from Iraq leaving her behind. She and Azzad joined him (via Jordan) at the house in March 2009, having obtained indefinite leave to remain in the UK. She does not speak English. She and her son have to sleep in the living room, as her husband does not want her sleeping in his room. She and her mother do not get on. Mrs Abdullah’s health is deteriorating: she suffers from a variety of physical and mental health problems, including post-traumatic stress disorder brought on by torture inflicted in Iraq and Jordan, and a moderate to severe depressive disorder. The house is overcrowded. The atmosphere is unbearable. Family relationships are fraught.
Appellant’s submissions 
11.	In support of Mrs Abdullah’s appeal Mr Christopher Baker argues that the Recorder erred on three points of law.
12.	First, she stepped outside her remit on the appeal by making findings of fact which were not considered in the review decision under appeal. The Council officer’s review decision failed to find whether the house constituted the matrimonial home, who of the joint tenants granted the licence to occupy and whether one joint tenant purporting to terminate the licence is in fact legally entitled to do so without reference to, or without the consent of, the other joint tenant. It is contended that the Council failed to investigate the facts or to consider the basis on which Mrs Abdullah occupied the house, the nature of any licence to occupy and what action was required, and by whom, to terminate or revoke such licence. The Recorder purported to repair those omissions by finding that the house was obviously the matrimonial home, that the licence was granted jointly by both tenants and that neither the mother nor the husband acting alone could determine the licence to occupy. It is contended that the Recorder usurped the fact-finding function assigned by Parliament to the Council, whose review decision was insufficient to sustain the conclusion reached. She went beyond the limits of the “benevolent approach” to the interpretation of review decisions spoken of by Lord Neuberger in Holmes-Moorhouse v Richmond Upon Thames LBC [2009] UKHL 7; [2009] 1 WLR 413 at paragraphs 46-51.       
13.	Secondly, the Recorder held that one joint tenant cannot unilaterally and without the consent of the other determine a licence granted by both of them. That impacted directly on Mrs Abdullah’s ability to defeat the termination of the licence by assertion of matrimonial home rights. She would not be entitled to occupy the house and would be homeless, if the licence could be terminated by a joint tenant, such as her mother, who was not affected by matrimonial home rights. The Recorder wrongly held that, notwithstanding the accepted fact that it was the mother who asked her to leave the house, Mrs Abdullah enjoyed matrimonial home rights protection against that purported exclusion.  Section 30 only regulates the rights of spouses (or civil partners) between themselves. “Home rights” did not apply to a house which had not been and was at no time intended to be a matrimonial home (or civil partnership home). The Recorder disagreed and held that she could find nothing to preclude the application of s.30  to the case just because the mother also had an interest in the house. It is submitted that the Recorder’s interpretation was wrong: the mother clearly fell outside the definition of potential excluders. There is, it is argued, in substance no separate point under s.30. The simple position is that one joint tenant alone may carve out of the tenancy a licence and similarly any one of the joint tenants is permitted to determine the licence. Each joint tenant is entitled to the benefit of the tenancy and so may act in relation to it as he or she wishes. That is what the mother has done and there is nothing in the Family Law Act to prevent her from doing that.    
14.	Thirdly, the Recorder failed to consider adequately whether the Council had in fact determined whether it was reasonable for the appellant to continue to occupy the house. It had to be reasonable for her to continue to occupy on a relatively long term basis and for at least as long as she would have, if the Council did not intervene: Ali v Birmingham CC [2009] UKHL 36; [2009] 1 WLR 1506 at paragraphs 34, 36 and 42. It is contended that the Council failed in this context to consider the medical evidence submitted on Mrs Abdullah’s behalf. 
Discussion and conclusion 
15.	In this court the crucial decision is not that of the Recorder at the first level of appeal, but that at the first instance review level, which is said to be erroneous in point of law. The written and oral submissions in support of the appeal focus on alleged legal errors in the Recorder’s judgment and tend to neglect the review decision. A critique of the Recorder’s judgment has been presented as a kind of legal debate about quite general propositions.  On the case advanced by Mr Baker, the Recorder scored low grades for her knowledge and understanding of the legal intricacies of joint tenancies, of the creation and termination of a licence to occupy a house held by joint tenants, of the scope of application of s.30 of the Family Law Act and of her judicial role on hearing an appeal under s.204 of the Housing Act. Unfortunately and, in my view, unfairly to the Recorder, the legal submissions for the appeal have been floated free of the specific factors on which the review officer (Ms Christine Obayi) expressly based her decision.           
16.	It is necessary to revisit what the review officer actually said in her 5 page review letter. The review officer, it should be noted, was not sitting for an examination on housing law. She was making a pragmatic decision based on solid factors identified in her letter. On the final page she concluded:-
“ Based on all the above factors I am satisfied that your client’s accommodation at 2 Alperton Street…remains available for her and is reasonable for her to continue to occupy and as a result she is not a homeless person pursuant to Part VII of the Housing Act 1996. With regards to her housing circumstances, the Council can continue to provide advice and assistance only.”  
17.	The particular factors on which the review officer based her decision can be summarised in this way:
(1)	Mrs Abdullah had approached the Council for housing assistance on more than one occasion. The first approach was in July 2009 when she stated that her mother had asked her to leave the house, though not “by a specific time frame”.
(2)	In June 2010 Mrs Abdullah was still in occupation of the house when she advised the Council that her mother and husband had asked her to leave the house. The review officer wrote that that fact strongly “suggests that [Mrs Abdullah’s] accommodation remains available to her in spite of the fact that she may have been asked to leave” in July 2009.  The review officer expressly took into account the length of time that Mrs Abdullah had continued in occupation of the property since her first approach to the Council for housing assistance.
(3)	Mrs Abdullah’s solicitor (Gillian Radford) acknowledged that her client “has matrimonial rights over her husband’s part of the tenancy but not over her mother’s part of the tenancy”, the tenancy being a joint one, so that she “cannot exercise matrimonial home rights under Part IV of the Family Law Act 1996 due to her mother’s interest in the property”.   (As to the mother’s position on home rights see below)
(4)	Looking to Mrs Abdullah’s personal and domestic circumstances the review officer said that the evidence was insufficient to conclude that she and her husband had separated, as she had alleged. The review officer also said that, on the medical information provided, she was unable to  conclude that Mrs Abdullah’s mental health conditions could not be controlled or managed with the help of treatment she was receiving. 
(5)	Mrs Abdullah was entitled to exercise her matrimonial home rights given her marriage to her husband and was thus protected from being excluded from the property. Reference was made to s.30 and to the submission that the section does not apply because the mother also has an interest in the house. The review officer said that she could find nothing to preclude the application of s. 30 to Mrs Abdullah’s case just because the mother also has an interest in the house. The crucial point was that the section was meant to apply where one spouse has a beneficial interest in a property and the other does not. That is the case here. Mrs Abdullah was entitled to avail herself of the protection afforded under the section, irrespective of her mother’s interest in the house. 
(6)	The Council’s records showed that during previous visits Mrs Abdullah told the Council that she had been asked to leave the house because it was overcrowded. The review officer was satisfied that the house was not so severely overcrowded  as to make it unreasonable for her to continue to occupy, “taking account of the current occupants in the house, of the fact that many families are living in permanent and temporary accommodation using their living area as a sleeping area and of the level of overcrowding in accommodation in  the Council’s area”.          
18.	Like the Recorder I am unable to detect a legal error in that decision. I would make the following points. 
19.	In the first place, it was not necessary, in the circumstances of this case, for the review officer to embark upon a legal analysis of the power of the mother, as one joint tenant acting alone, to terminate a licence to occupy by reference to such cases as Annen v Rattee [1985] 1 EGLR 136; Robson-Paul v Farrugia (1969) 20 P & CR 820 and Hammersmith & Fulham LBC v Monk [1992] 1 AC 478; or to Megarry & Wade on  The Law of Real Property (7th Edition) at page 492. It was not disputed that the husband was a joint tenant of the house, that Mrs Abdullah was not a joint tenant of the house and that house was in fact lived in by Mrs Abdullah, her husband and her son at the relevant time. It was self-evident that the house was the matrimonial home within the meaning of the Family Law Act and that the mother’s joint tenancy and occupation of the house could not prevent s.30 from applying to protect Mrs Abdullah from being evicted or excluded from the matrimonial home. It would be contrary to the objective of the statute and downright absurd, if Mrs Abdullah were to be denied the protection of that Act simply because her husband had taken the tenancy of the home jointly with another person who was not his spouse. 
20.	Secondly, nearly 2 years after the first approach to the Council for housing assistance, there was no still no sign of the mother taking any steps to enforce her request that Mrs Abdullah should leave the house. That was relevant to whether Mrs Abdullah had accommodation available for her occupation.
21.	Thirdly, proper consideration was given by the review officer to whether it was reasonable for Mrs Abdullah to continue to live in the house. Proper regard was had by the review officer to the unfortunate domestic circumstances of alleged overcrowding of the house and lack of space, and to Mrs Abdullah’s disintegrating marital relations, her soured relationship with her mother and her fragile mental state and her medical condition.
22.	Fourthly, I reject the contention that the Recorder strayed into the territory of making findings of disputed facts. The primary facts were not in dispute. The Recorder was entitled and bound to consider the legal significance of undisputed facts in the context of the Housing Act and s.30 of the Family Law Act.              
23.	 In my judgment, the criticisms of the Recorder’s judgment are unjustified. She correctly approached the appeal by reading the review decision as a whole and she rightly concluded that it was not wrong in point of law.            
Result 
24.	I would dismiss the appeal on the ground that there was no point of law arising from the review decision and that the Recorder was right to dismiss Mrs Abdullah’s appeal.   
Lord Justice Lloyd 
25.	I agree. 
Lord Justice Mc Farlane
26.	I also agree.