21/03/2009

Appealing reasonableness decisions

This is the first of two appeals on Ground 16 possession claims which came out today, both concerning whether it was reasonable to make a possession order. The second will be up later on.

Bracknell Forest Borough Council v Harry Green & Denise Green [2009] EWCA Civ 238 centred on the consideration of the availability of suitable accommodation as a factor in considering reasonableness. It is also, and sorry to spoil any dramatic tension, a textbook example of the Court of Appeal refusing to take issue with the lower court’s exercise of discretion where there is an imprecise legal standard unless the lower judge acted ‘under an error of principle’ or the decision ‘was obviously wrong’.

The history was as follows..

The property, a semi-detached 3 bed house was first tenanted by the respondent’s father in 1958, with his wife and family. The late Mrs Green had a new tenancy on the death of the father in 1969. Harry Green had been born in the house in 1958 and lived there ever since. His sister was likewise born in the house and also, apart from a period between 1975-84 had also lived at the house ever since. Mrs Green died in 2005 and Harry succeeded to the secure tenancy.

The Council began possession proceedings under Ground 16 in Feb 2006 (within time). In front of the Recorder, the possession claim was dismissed in january 2008 on the basis that it was not reasonable to make an order for possession, although the alternative accommodation offered was suitable.

The Council appealed, although the property was transferred to an RSL in the interim, on broadly similar terms. An application to be substituted as claimant was a secondary and in the event unnecessary part of the appeal.

Ground 16 requires that the Court be satisfied both that it is reasonable to make a possession order and that suitable accommodation is available. There are prescribed factors to be considered in terms of reasonableness, but it was common ground that these are not exclusive. Ground 16 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.

The recorder’s judgment found that the exceptional circumstances, in which Harry Green and, largely, his sister, had lived in the same property since they were born, were highly emotionally attached to that specific property and would be very likely to never be able to settle anywhere else meant that it was not reasonable to make a possession order, while recognising the clear force of the council’s argument on pressures on housing stock. For the purposes of the appeal, the key part of the judgment read as follows:

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.

The Council’s appeal was on the grounds that:
1. The Recorder had failed to give sufficient weight to the factors making it reasonable to give possession. Following Enfield LBC v French [1984] 17 HLR 211 and Manchester CC v Benjamin [2008] EWCA Civ 189, the waiting list and the importance of better use of housing stock should carry sufficient weight for a PO.

2. The recorder had failed to take availability of suitable accommodation into account as a factor in a reasonableness decision. The legal misdirection at the end of the paragraph above was to the effect that suitability wouldn’t even be considered until reasonableness had been dealt with. Cumming v Danson [1942] 2 All ER 653 and Enfield LBC v French cited.

The Court of Appeal in Mummery LJ’s sole judgment, found the Recorder’s judgment difficult to appeal – the court of appeal should not interfere with the exercise of discretion simply because another decision could also be reached on the same facts. Interference should only be on the basis that there was an error of principle or mistake in law or the decision was plainly wrong. The Council’s appeal was based in part on a complaint that the Recorder failed to explain how the balancing act had been carried out and how the personal circumstances of the Greens outweighed the combined facts of underoccupation, the refusal of offers of suitable alternative accommodation and the pressures of the waiting list. However, where the nature of the question to be decided in the lower court affects the approach of the court of appeal to such criticisms.

Lord Hoffmann in Biogen v Medeva plc [1997] RPC1 points out that specific findings of fact, even by a most meticulous judge ‘are inherently an incomplete statement of the impression that was made upon him by the primary evidence’. Such an analysis also applies to appeals on the reasonableness of making a possesison order, which require the lower court to apply ‘an imprecise legal standard to the overall evaluation of all the circumstances relevant’. See also Designers Guild (Textiles) Ltd v Russell Williams (textiles) Ltd [2000] 1 WLR 2416. On this basis the Court of Appeal would be slow to upset the Recorder’s evaluation absent error of principle or obvious wrongness.

In the present case, despite the phrasing in the passage from the judgment set out above, it was clear from the judgment as a whole that the Recorder had considered the availability of suitable accommodation throughout, and gave it proper consideration before refusing the possession order. Although suitable alternative accommodation is not mentioned as mandatory factor to be considered in deciding reasonableness, it is accepted that it is a factor. The structure of Ground 16 or s.84(2)(c) does not amount to a sequence of separate decisions, first reasonableness, then suitability. And here, suitability had been considered in reaching the decision.

The Council’s complaint was really that the Recorder did not treat the offer of suitable accommodation as decisive in its favour. But the 1985 Act clearly contemplates that personal circumstances may outweigh the factors for possession. Mr Green’s length of occupation, his age and the fact that he remained living in the house in which he was born, and the destablising effects on the Greens of any eviction were factors the recorder was entitled to consider and the Court could appreciate why the recorder had reached his decision.

There was no error in law or of principle and no obvious wrongness. Appeal dismissed.

We’ve noted previous cases where the Court of Appeal has refused to interfere in the lower court’s findings on reasonableness of making a possession order. What is interesting in this case is that the reluctance is formalised and given a basis in precedent case law on evaluation of facts in the application of an imprecise legal standard. In practice, I imagine this judgment will be raised by respondent in virtually any appeal of a lower court decision on reasonableness from here on. Any such decision will need to be clearly wrong, or contain error of law, to be appealed, as ‘merely having another go at a fact based issue’ is likely to get short shrift. To be fair to the Council here, they did try to turn it into an issue of law by focussing on one paragraph of the Recorder’s judgment, but that fell when considered against the judgment as a whole.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. JS

    This is a very sensible decision. The only thing that strikes me about this case is that a spare bedroom is regarded as more than can be reasonably required by the tenant !

    Reply
    • NL

      The variability in what LA’s consider as underoccupation also surprises me. Two bedrooms, I can see, but a single bed/boxroom?

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