England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Oxford Family Court
His Honour Judge McIntyre

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/07/2015

Lord Justice Underhill :

1. In 2006 the Appellant, Mr Salim Guerroudj, and the Respondent, Ms Rymarczyk, started to live together as a couple. Both were at that time in work, but in 2010 Mr Guerroudj suffered a slipped disc which has caused him long-term back problems, and it appears that he has for some time been unable to work. In 2013 the First-tier Tribunal (Social Entitlements Chamber) found that he was entitled to employment and support allowance.
2. In August 2011 they entered into a joint tenancy, from the City Council, of a flat on the Blackbird Leys estate in Oxford, at a rent of just under £80 p.w. The reason, or in any event one of the reasons, why they were offered that accommodation was Mr Guerroudj's back condition. The flat was not "adapted" in any significant way, but it was on the ground floor, which was important because he had difficulty climbing stairs. The tenancy was a secure tenancy within the meaning of the Housing Act 1985.
3. Unfortunately in mid-2013 the relationship broke down. In view of the difficulty of finding other accommodation they continued to live together, but the situation generated considerable friction, with each accusing the other of violent behaviour. In late 2013 Mr Guerroudj offered to pay Ms Rymarczyk £1,500 to move out, but in the end nothing came of that approach. Because of the friction Ms Rymarczyk in late 2013 started a new job working night shifts as a warehouse operative at BMW on (after an introductory period) £8.50 per hour.
4. Eventually on 9 April 2014 Mr Guerroudj issued proceedings in the Oxford County Court – now the Family Court – seeking a non-molestation order and an order that Ms Rymarczyk quit the flat. On 17 April there was a hearing before the District Judge. She required Mr Guerroudj to issue proceedings under Part IV of the Family Law Act 1996 for a transfer of the tenancy into his name, which would be consolidated with the non-molestation proceedings. Undertakings were given to cover the position until a full hearing. Mr Guerroudj duly issued proceedings for a transfer of the tenancy; but so also did Ms Rymarczyk.
5. I should at this stage summarise the relevant provisions of the 1996 Act. Section 53 (which falls under Part IV) enacts Schedule 7, which is headed "Transfer of Certain Tenancies on Divorce etc or on Separation of Cohabitants". The relevant parts of the Schedule are as follows:

(1) The effect of para. 3 is that where two "cohabitants" who occupy a dwelling-house under a "relevant tenancy" (whether jointly or in the name of one of them) cease to cohabit the Court may make "a Part II order". Such an order is, in effect, an order for the transfer of the tenancy from one cohabitant to the other.

(2) Para. 5 is headed "Matters to which the court must have regard" and reads (so far as relevant) as follows:

"In determining whether to exercise its powers under Part II of this Schedule and, if so, in what manner, the court shall have regard to all the circumstances of the case including—

(a) the circumstances in which the tenancy was granted to either or both of the spouses, civil partners or cohabitants or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy;

(b) the matters mentioned in section 33(6)(a), (b) and (c) … and;

(c) the suitability of the parties as tenants."

The "matters mentioned in section 33(6) (a), (b) and (c)", as referred to at (b), are:

"(a) the housing needs and housing resources of each of the parties and of any relevant child;

(b) the financial resources of each of the parties;

(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child ..."

(3) Para. 10 of the Schedule deals with, in effect, the payment of compensation to a dispossessed cohabitant. It reads (again, so far as relevant):

"(1)  If the court makes a Part II order, it may by the order direct the making of a payment by the spouse, civil partner or cohabitant to whom the tenancy is transferred ("the transferee") to the other spouse, civil partner or cohabitant ("the transferor").

(2)-(3) …

(4)  In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court shall have regard to all the circumstances including—

(a) the financial loss that would otherwise be suffered by the transferor as a result of the order;

(b) the financial needs and financial resources of the parties; and

(c) the financial obligations which the parties have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child

(5) …".

6. The applications came before HH Judge McIntyre on 17 June 2014. Mr Guerroudj was represented by his solicitor Ms Davies. Ms Rymarczyk was unrepresented, though she was accompanied by a McKenzie friend. Both parties had filed witness statements and the Judge heard oral evidence. Unsurprisingly, since both parties had made applications, it does not appear to have been in issue that the statutory conditions for the making of a Part II order applied.
7. The Judge gave a short ex tempore judgment in Mr Guerroudj's favour. I need not summarise his reasoning in any detail. In brief:

(1) He found that Mr Guerroudj's back condition was a very significant factor in the grant of the tenancy in 2011: his GP had written to the Council twice giving details of what was described as "an ongoing and debilitating medical condition" and supporting the application for a tenancy.

(2) He held that there ought to be a transfer of the tenancy from one party to the other. He acknowledged that that would be hard on whichever of them had to quit.

(3) At paras. 8-13 he reviewed the relevant circumstances. Both parties said that it would be difficult to find suitable alternative accommodation; but the assertions seem to have been unparticularised and unevidenced. In Ms Rymarczyk's case, she is recorded as only having said that she needed to stay because the flat was close to her work. In Mr Guerroudj's case the Judge said that he had heard "very little evidence" as to what difficulties finding alternative accommodation would involve. At para. 12 he said:

"Ms. Rymarczyk feels that she will be penalised if she has to give up the tenancy because she works hard, is industrious and she feels that she will be penalised because of the fact that she is in work, whereas the Applicant will remain on his benefits. She feels, but there is no evidence about it, that the Applicant would get a room which he could afford on the benefits he receives if he was ordered out of the flat."

At para. 13 he said that it was very questionable whether Mr Guerroudj could afford the rent on his own: he had said that he would give up smoking, but the Judge was sceptical about whether that would make the difference. At para. 14 he expressed his sympathy for Ms Rymarczyk as a hard-working and independent person.

(4) At paras. 14-15 he considered the question of compensation. He referred to Mr Guerroudj's earlier offer to Ms Rymarczyk of £1,500 to quit. He said that Mr Guerroudj had said on oath that he remained able to obtain that sum from his brothers in Algeria, whereas it did not appear that Ms Rymarczyk could afford to pay any compensation to Mr Guerroudj.

(5) At para. 16 he referred to the relevant provisions of the Family Law Act 1996.

(6) At para. 17, without further reasoning, he announced his decision as follows:

"In all the circumstances of the case the order which I would propose to make … is that upon payment of £1500 compensation to Ms Rymarczyk she shall transfer the tenancy to Mr Guerroudj. I would order that both payment be made and transfer completed by three weeks on this Friday, namely 11^th July of this year."

(7) However, at para. 18 he also said this:

"I would suggest to both parties that they should, if they have not done so already, approach the housing officer to see whether there is any alternative to that order being made. It may be that there is not, in which case the order stands. It may be that there is, in which case either party would have permission to bring the matter back to me."

8. It can fairly be said that the Judge does not state explicitly why he found that the balance came down in favour of Mr Guerroudj (subject to para. 18), though I would not wish to be too critical of an ex tempore judgment. But it seems clear that he regarded the decisive point as being that, whereas both would face real difficulties if they had to leave, Mr Guerroudj was in a position to compensate Ms Rymarczyk, at least to some extent, but that she could not compensate him.
9. The Judge's formal order was (so far as relevant) as follows:

"… And upon the Court inviting both parties to make enquiries of the Housing Department of Oxford City Council to see whether an alternative to the implementation of this order can be found

The Court Orders

1. The Applicant Salim Guerroudj shall pay or cause to be paid to the Respondent Katarzyna Rymarczyk compensation in the sum of £1500 by the 11^th of July 2014.

2. Immediately upon payment of the compensation provided in paragraph 1 above, the Respondent shall transfer the tenancy in the property 1 Andromeda Close, Blackbird Leys, Oxford, OX4 6PW to the Applicant.

3. In the event that either party obtains evidence of an alternative to this order being implemented, he or she shall apply on 72 hours notice before the 11^th of July 2014 to the court for an urgent hearing, such hearing must be heard by His Honour Judge McIntyre if available and must be listed before the 16^th of July 2014. If no application is received by the Court by 4pm on the 11^th of July 2014 this order shall stand as a final order.

4. …"

10. I need to say something about what was in effect the liberty to apply provided for in para. 3 of the order, since it is at the centre of the issues before us. The thinking behind it is clear enough from the recital in which the parties are encouraged to approach the Council's Housing Department and from the Judge's final remarks as set out at para. 7 (7) above. He was evidently unhappy about whether he had been given enough information about the prospects of either party obtaining alternative accommodation if they had to quit, which was potentially a decisive consideration, and he wanted to leave open the possibility of considering it further. Although the liberty was granted to both parties, the provision was in practice more for the benefit of Ms Rymarczyk than Mr Guerroudj: it is hard to see how it could have been in his interest to approach the Council to obtain information about alternative accommodation which might deprive him of his (provisional) victory, whereas if she were able to obtain evidence that if he had to quit he would be re-housed that would plainly affect the balance – and probably decisively so. (I accept that it could in theory have benefited Mr Guerroudj, since if he could have adduced evidence that Ms Rymarczyk could easily obtain equivalent accommodation at the same rent that might have affected the decision about compensation; but that does not seem a very likely scenario.)
11. On 7 July 2014, purportedly in accordance with the liberty to apply, Ms Rymarczyk wrote to the Court making an application that the Judge rescind his order in favour of Mr Guerroudj and instead make an order transferring the tenancy to her. The letter begins as follows:

"I am writing to apply for an urgent hearing in this matter, as I have obtained further evidence of an alternative to the Transfer of Tenancy Order made by His Honour Judge McIntyre on 17 June 2014.

Further information obtained

I have made enquiries with a number of different agencies, including Shelter, the Citizens Advice Bureau and Oxford City Council in relation to my housing options.

I have been advised by Caroline at Shelter in Oxford City Centre, that because Mr Guerroudj is physically disabled he would be able to establish a priority need for housing and would be owed a duty under Part 7 of the Housing Act 1996 to be accommodated by the local authority. I on the other hand am not owed any such housing duty or assistance as I am not classed as having a priority need. I have asked for Shelter to confirm their advice to me in writing; however I have been advised that because Mr Guerroudj has sought their assistance they are not able to do so due to a conflict of interest.

(We were not told anything about Mr Guerroudj's apparent approach to Shelter referred to in the final sentence.) The letter goes on to make various other points which I need not set out in full. In summary:

(1) Ms Rymarczyk says that "from the information I have been given by the Council and other agencies, I do not believe that I will have a priority over other people who are already on the housing register, such as families". She says that the Council would be under no duty to rehouse her.

(2) She says that she has enquired about renting privately but has been told that she would have to pay about £800 p.c.m, excluding bills, for a studio or one bedroom flat, which she would not be able to afford. She attaches particulars for such properties.

(3) She says that Mr Guerroudj would not be able to maintain the cost of the tenancy on his own "given his low income of £437.67 per month and current debts of approximately £8,000".

12. On 14 July 2014 Judge McIntyre made an order staying the effect of paras. 1 and 2 of his original order and ordering that Ms Rymarczyk's application be listed on the first available date after 22 July. He directed that she forthwith serve a copy of her letter on Mr Guerroudj.
13. That further hearing duly took place before Judge McIntyre on 23 July. Mr Guerroudj was again represented by Ms Davies; Ms Rymarczyk was also represented by a solicitor. The Judge heard further oral evidence from both parties and decided to set his previous decision aside. He ordered that the flat be transferred forthwith into the sole name of Ms Rymarczyk and that Mr Guerroudj should leave it by 1 October 2014. There is no transcript of his judgment, but we have been shown an approved note, which I can summarise as follows:

(1) At paras. 1-2 he recites the procedural history, noting that at the conclusion of the previous hearing "I thought the case was finely balanced in terms of the competing needs of the parties", adding that that could "probably be gathered from paragraph 3 of the Order".

(2) At para. 3 he briefly summarises the parties' contentions and evidence, recording that Ms Rymarczyk had confirmed the contents of her letter of 7 July as true to the best of her knowledge and belief. At para. 4 he summarised the statutory provisions.

(3) His dispositive reasoning appears at paras. 5-8 as follows:

"5. I am satisfied on the evidence provided by R that she will not be able to afford a 1 bedroom flat within a reasonable distance of her place of work at BMW in Cowley on the money she gets from her employment there. I am further satisfied that because she is in work and earning at the level she is, she will not be someone who, so far as the Housing Authority is concerned, is in priority need of accommodation. In a sense therefore, she falls between two stools. I am satisfied that if A were to be rendered homeless as a result of the transfer of the tenancy of 1 Andromeda Close to R, he would be someone to whom the Authority would owe the duty of providing him with accommodation and he would be a priority need, having regard to his disability.

6. As I have already stated, it would be open to me to make no Order today and leave the parties to sort the matter out themselves, but Mrs Davies on instructions from A urges me not to do that. In A's view, that would be worse than a transfer of the tenancy to R.

7. I am satisfied that neither party has any alternative accommodation at which they could reasonably be expected to reside. I am satisfied that A cannot afford to maintain the flat. He accepts this but says that any shortfall will be met by his brother who lives in Algeria. I take into account the fact that A's GP is close by, but there is no reason why he should not transfer to another GP if he needed to.

8. In all the circumstances, I am satisfied that R would be likely to suffer greater hardship if the tenancy were to be transferred into A's sole name than A would suffer if the tenancy were to be transferred into hers. I accordingly make an Order transferring the tenancy into R's sole name. She is prepared to give A time to leave. I would order him to leave by 1 October 14."

("A" and "R" are of course Mr Guerroudj and Ms Rymarczyk respectively.)

14. Mr Guerroudj has appealed against that decision with permission granted by Macur LJ. He has been represented by Ms Katherine Dunseath of counsel. Ms Rymarczyk has appeared in person, though again with the assistance of a McKenzie friend.
15. The first and most fundamental point taken by Ms Dunseath is that the Judge ought not to have undertaken a further hearing at all. The liberty to apply conferred by para. 3 of his first order was conditional on the party in question obtaining "evidence" of an alternative to his order. It is clear from the recital, and from what the Judge said in his judgment as set out at para. 7 (7) above, that the sort of evidence that he had in mind was evidence from the Council itself that it would be able to offer alternative accommodation to one or other party; but the "evidence" contained in Ms Rymarczyk's letter of 7 July did not satisfy that criterion. There is no direct evidence from the Council at all, and in so far as she says anything about what the Council has told her it is only that she herself has no prospect of being re-housed; she does not say that it has given any indication of being willing to accommodate Mr Guerroudj. The only indication to that effect comes not from the Council but from what she says she was told by Shelter; and even that amounts to no more than a statement, in very general terms, of the Council's obligations under Part VII of the Housing Act 1996. Accordingly, Ms Dunseath submitted, the Judge should have refused to reconsider his original order, with the result that the appeal should be allowed, without any need for consideration of the reasoning behind his second decision, and that the first order would simply be restored (subject only to amending the date for payment of the £1,500). This is (in essence) ground 5 in the pleaded Grounds of Appeal.
16. I was initially attracted by that submission, but in the end I have decided that it should be rejected. I do not think that it would be right to read the Judge's first order too literally. The spirit of it, as I have said, seems to have been that neither party – but particularly perhaps Ms Rymarczyk, who was unrepresented – had properly focused on the prospects of either being re-housed by the Council if they were required to quit; and that he believed that justice required that they have a further opportunity to address him if they were able to find more to say on that question. Ms Dunseath fairly makes the point that since in principle orders should be final any liberty to apply should be strictly construed; but while that is unexceptionable as a general proposition I am not sure that it requires a literal reading in the circumstances of this case. Certainly, the Judge appears to have regarded Ms Rymarczyk's application as falling within the terms of para. 3 of his order. In the end, however, it is unnecessary to reach a final view about how strictly para. 3 should be construed because, as Ms Dunseath fairly accepted (having had the chance to make the necessary enquiries), Ms Davies did not take this point before the Judge at the second hearing. She did indeed argue that the further material produced by Ms Rymarczyk did not materially alter the position as it had been known at the previous hearing – a point which I consider in the following paragraphs, but that is not the same as objecting to the hearing taking place at all.
17. Ms Dunseath's second point was essentially a lesser variant of her first, namely that even if the Judge had been entitled to entertain the application he should have refused it because the further evidence/submissions contained nothing that justified changing the assessment that he had made first time round. As I have noted, that had been how Ms Davies put it before the Judge.
18. Again, I see the force of that submission, but on balance I think it is wrong. As I have said, the whole point about the liberty to apply was that the Judge felt that at the first hearing insufficient attention had been paid to the parties' prospects of obtaining other accommodation. As to that, he did now have some further material. He was referred, as apparently he had not been first time round, to the homelessness provisions of the Housing Act 1996, which are identified in Ms Rymarczyk's letter of 7 July; and it was submitted that Mr Guerroudj would qualify for priority housing under those provisions. He also had more particularised evidence from Ms Rymarczyk (a) that she would not qualify for Council or housing association housing and (b) that she could not afford private accommodation, with details of the rents charged. The Judge expressly relied on those submissions and that information in reaching his fresh decision: see in particular para. 5 of his judgment.
19. Ms Dunseath submitted that even if it be allowed that that material was new second time round it did not constitute reliable evidence justifying the Judge's crucial conclusion that Mr Guerroudj would, in effect, be re-housed by the Council on account of his disability. Although the Judge had a certain amount of evidence about his back condition, because it had been deployed at the first hearing (albeit not in this context), that evidence did not compel the conclusion that Mr Guerroudj would necessarily be assessed by the Council as being in priority need within the meaning of Part VII of the Housing Act 1996. The relevant provision is section 189 (1) (c), which is not satisfied only by a person having physical disability: the criterion is whether he is "vulnerable" as a result of that disability. The evidence did not address that question. Even if the relevant duty arose the Council might satisfy it by accommodating him in a different part of Oxford, or indeed elsewhere, which would be disruptive to his life and very unfair. Further, at least in the short term, he might be housed in accommodation which was not suitable for his condition, in particular one with stairs.
20. Again, that is not an unreasonable point. But in a case of this kind the Judge has to make a decision on the best material available. In truth, a local authority is unlikely to be willing to give any assurances unless and until a situation of "threatened homelessness" has arisen and it has been able to go through its usual assessment procedures. By section 175 (4) of the 1996 Act a person will not be regarded as so threatened unless "it is likely that he will become homeless within 28 days". In my experience an authority will not, in a typical case, regard homelessness as "likely" unless and until an order is made – even if the making of the order is predictable it is unusual that a defendant will be ordered to quit in less than 28 days. In any event, it must be unlikely that it will be prepared to give any such assurance in response to an enquiry from someone other than the person threatened with homelessness. In those circumstances a court deciding a transfer of tenancy application which wishes to take into account the parties' prospects of re-housing will often have to proceed – to the extent that it feels comfortable about doing so – on the basis of an educated judgment: fortunately, many judges at least will have some experience in this field because of the County Court's jurisdiction under section 204.
21. In my judgment, the Judge in this case had (just) enough to go on. He had a fair amount of information about Mr Guerroudj's back condition. He had evidence from both parties. He had the GP letters from 2011. He had the decision of the First-tier Tribunal. Not only did he know that Mr Guerroudj's condition was disabling enough to prevent him from working, and to entitle him to benefit; he had also found in his first decision that it was a principal reason for the Council offering him and Ms Rymarczyk the flat in the first place (a finding, be it noted, that he had been urged to make by Mr Guerroudj himself). It was not unreasonable to conclude that, having treated him as (in effect) a priority once, the Council would do so again; and Shelter's reported opinion to that effect, albeit second-hand and presumably based only on what Ms Rymarczyk had told them, could give some modest reinforcement to that conclusion.
22. I would accordingly not accept the principal challenges advanced by Ms Dunseath in her oral submissions; but I should refer to three other pleaded grounds of appeal.
23. First, it is pleaded (as ground 2) that it was unfair that Mr Guerroudj was given no chance "to file further written evidence" in response to Ms Rymarczyk's letter of 7 July. But there was nothing to stop him doing so if he had chosen. He had over a week's notice of the hearing of 23 July and a copy of Ms Rymarczyk's letter. He was in any event able to give oral evidence. Ms Dunseath accepted that no objection was made on Mr Guerroudj's behalf to the hearing proceeding on 23 July: there was no application for an adjournment.
24. Secondly, it is pleaded (ground 4) that the Judge at the second hearing placed weight on Mr Guerroudj's "difficulties in managing his finances", whereas he had not done so at the first hearing. This is a reference to Ms Rymarczyk's contention that Mr Guerroudj would not be able to pay the rent on the flat on his own. I do not believe that there is any real inconsistency in the Judge's approach on this point. In his first judgment he noted that on Mr Guerroudj's own evidence he would "not be able to afford the expenditure on the flat" and, as I have noted, he expressed scepticism about whether Mr Guerroudj giving up smoking would make the difference. In his second judgment he noted the point again, though apparently Mr Guerroudj had this time said that he would be funded by his brothers (see para. 7 of the note of judgment); the Judge expresses no view either way on that response. I am not satisfied that Mr Guerroudj's impecuniosity was in fact a substantial factor in the second decision at all: as I read it, the essential and only decisive feature was his conclusion that Mr Guerroudj would be re-housed by the Council while Ms Rymarczyk would not. But even if the Judge did take it into account, that is not inconsistent with what happened first time round. It went into the balance against Mr Guerroudj on both occasions; but in the first judgment it was outweighed by the factors in his favour (essentially his ability to pay compensation) whereas in the second judgment the balance came out differently because of the new factor about the likelihood of his being re-housed.
25. Thirdly, it is pleaded (ground 6) that the Judge in his second decision "failed to consider the issue of compensation from one party to another" and thus failed to have regard to all the circumstances, as required by para. 10 (4) of Schedule 7. But it is clear from the Judge's findings that Ms Rymarczyk was not in a financial position to pay any compensation to Mr Guerroudj, and there was no need for him formally to refer to a power that he could not properly have exercised.
26. For those reasons I would dismiss the appeal. The outcome is hard for Mr Guerroudj; but, as the Judge noted, it was going to be hard for whichever party lost. The truth is that he had to make a difficult decision on the balance of hardship, and I can see no error of law in the way that he struck the balance. The one criticism that I would, with respect, make is that it would have been better – if, as he evidently did, he felt that justice required a fuller exploration of the possibilities of alternative accommodation – if he had simply adjourned the hearing and kept his counsel as to any provisional conclusion that he might have reached. The course which he in fact took gave Mr Guerroudj an expectation of success which was then dashed; and it also generated the complications which led to the appeal. But though that was unfortunate it gives rise to no error of law.

Mr Justice Hildyard:

27. I agree.

Lord Justice Munby:

28. I also agree.