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21/03/2009

Carry me out feet first

Second of the Ground 16 cases is London Borough of Brent v John Hodson [2009] EWHC 566 (QB) [Not on Bailli yet]. This was decided in January but only released in the last day or so. This is an appeal to the High Court on issues of availability of suitable accommodation for determining reasonableness of a possession order.

Mr Hodson was the successor tenant to his father. The property was a two bedroom flat and Mr Hodson, aged 63, now lived there alone. Mr Hodson had lived in the flat with his family between 1968 and the late 1980s and had moved back in in about 2000. Mr Hodson’s father died and March 2007 and Brent brought Ground 16 possession proceedings. Mr Hodson did not want to leave, announcing ‘they would have to carry him out feet first’.

At trial, in July 2008, the Circuit Judge made an order for possession, but did not determine the date of possession. Brent had only that day put forward three suggestions of alternative accommodation and it was not known when any of them would be available for Mr Hodson.

Mr Hodson shortly after accepted one of the flats, without prejudice to his appeal, and at a further hearing a date of possession was ordered of 12 September 2008.

The appeal was on four grounds:

1. The question whether the alternative accommodation offered by the landlord is suitable for the tenant is a question that has to be decided before the court can reach a conclusion on whether it is reasonable to make a possession order. In this case the judge decided it was reasonable to make the order and then turned to consider what sort of accommodation would be suitable for Mr Hodson. What if no suitable accommodation had then been offered?
2. The Court has to be satisfied that suitable accommodation is available when the possession order will take effect to make the possession order. This was not the case on 23 July when the Order was made. In fact Brent had not offered any accommodation to Mr Hodson by that date.
3. As well as the suitability of the specific accommodation, the court should take into account factors relevant to that accommodation in deciding reasonableness; such as character of the property, locale, environment, the tenant’s objection to moving, the loss of space and the forced eviction.
4. The judge had erred in taking the view that moving house at age 62 was something people commonly did when addressing the trauma of a move for Mr Hodson.

Mr Justice Keith held:

On 1, It is important not to put too much stress on the structure of an ex tempore judgment delivered on the day. The mere fact that the judge had expressed his view on suitability of accomodation after he had expressed his view that it was reasonable to make a possession order did not necessarily mean that he did not consider suitability in deciding reasonableness. In fact, the judge began by considering the ground 16 factors, then went on to consider the s.84(2)(c) reasonableness issue. In then turning to suitability, he was giving the reasons for his conclusion.

On 2. the date when suitable accommodation had to be available is a later date – the date of possession – than the date when the order is made. Dyson LJ in Wandsworth v Randall [2008] 3 All ER 393 says ‘there is no requirement that an offer of accommodation shall have been made before the hearing. The requirement is that suitable accommodation will be available’.

In the present case, the Judge had to decide whether the sort of accommodation Brent were prepared to offer was suitable and whether it would be available when the order took effect. The Judge had found that the sort of accommodation was suitable and that the accommodation would be available when the order took effect, but as the judge did not know when the accommodation would be available, he did not decide when the order would take effect. His finding was that suitable accommodation would be available to Mr Hodson when the order took effect, whenever that was going to be.

On 3. as a provisional view, factors like locale, proximity to good shops and so on would be factors to consider going to suitability, as the six factors set out in para 2 of Part IV Sched 2 HA 1985 were not exclusive. But Mr Hodson could have raised this at the later hearing and asked the judge not to set a date for possession as it would not have been reasonable to give effect to the earlier order. He had not done so.

On 4. The judge was bound to take Mr Hodson’s age into effect, but the weight the judge had given his words about people selling up and moving to the seaside should not be exaggereated. He did not say Mr Hodson was of the group who choose to move at this age and he knew how reluctant Mr Hodson was to leave the flat. Even if the judge had wrongly assumed that Mr Hodson’s likely trauma was no different from a person selling up to move, it was clear from the rest of the judgment that he would have reached the same conclusion even if corrected on this point.

Appeal dismissed – although given that the flat offered had now been allocated to someone else, the date of possession was to be deferred until a further county court hearing to assess whether suitable accommodation will be available to Mr Hodson and at what date.

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.

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