LB Lambeth v Emeter [2010] EWCA Civ 527 [not on Baili, note from a transcript]

This was a renewed permission to appeal hearing which foundered on Mr Emeter’s complete lack of Agatha Christie-esque skills in plotting, detail and making evidence ambiguous.

Mr E was a secure tenant of Lambeth. He obtained the tenancy in 1997 on the basis of a homeless application, stating that he and his 18 month old son had been thrown out by his wife, with whom an elder child stayed. Lambeth served an NTQ in July 2007 and brought possession proceedings on the grounds that this was wholly untrue, that Mr E continued to live with his wife, most recently in Barnet, and the children went to school there together.

The claim was heard by HHJ Welchman at Lambeth County Court, with LB Lambeth claiming that Mr E had ceased to occupy the premises as his only or principal home, if he ever had. The Court found for the Council, very firmly:

I…find…that the subject property was not [the applicant’s] only or principal home at the material time. He has a presence and a residence elsewhere, but the flat concerned was acquired and has been used by him, most probably acquired but it matters not what his intention was at the outset, but the facts point rather strongly to this being a subterfuge from the very start, but he has utilised it for the making of profit. He did not need it as a home. He has continued his relationship with his wife in the intervening period, and he has not wanted the court or anyone to investigate the situation closely with regard to his wife and his home affairs because he knows full well that that would produce and ensure that the truth in this matter was found out. I find that his son has lived with his mother throughout. Mr Emeter has been closely involved in his son’s schooling, but the movement of the children and everything else in this case points, in my judgment, certainly on the balance of probabilities to substantial deceptions on Mr Emeter’s part.

The deceptions included a false claim for housing benefit and the sub-letting of part of the flat to a Mr Nuweke, who had paid a substantial rent. Mr Nuweke had provided what he called a ‘record’ of the rent paid to the Council with a signed statement under the Criminal Justice Act, but then provided a witness statement in the proceedings saying that what he may or may not have said to the Council in the past was the result of confusion and he had only been living there temporarily as a favour,

Mr E maintained a ‘locked room’ at the flat which he visited and used from time to time. On this HHJ Welchman found:

…it may have been a useful postal address; he may have found it useful for a host of reasons at which I am not going to guess; but one can surmise possibilities for reasons of various kinds that he might have found it handy or convenient to keep the property. Indeed he may have wished to remain in control in that if you sub-let the whole of your property not only do you lose the security of tenure (if you were worried about that point) but you lose control, you are less able to influence, keep an eye on what is actually going on and ensure as far as you can that nothing comes to light which is going to bring an end to this quite satisfactory arrangement so far as he was concerned.

It was the locked room that formed the basis of Mr E’s application for permission to appeal. Counsel for Mr E, Mr Trafford (who, it is carefully noted, did not appear below or settle the grounds of appeal), argued that not enough attention had been paid to the locked room. He advanced 4 propositions:

• In order to lose secure status, the whole of the property must be sub-let.
• In order to have a principal home, a person need not be physically present as long as there is an intention to return;
• Two properties can be occupied as a home at the same time; and
• Parting with possession is not to be inferred simply from allowing another person to use the property in the tenant’s absence.

Mr E’s locked room meant he had not sub-let the whole and he had from time to time used it. The court at first instance had not paid enough attention to these principles and had not made a detailed legal analysis of the position based on the locked room.

Sir Simon Tuckey was not impressed. He accepted the four propositions apart from the first. “You do not have to have a sub-letting of the whole before you can conclude that the person who makes the sub-letting is not occupying the property as his only or principal home. The judge was well aware of the evidence about this and the locked room was not in any way conclusive. On the judge’s findings Mr E simply did not keep or use that room as his principal home, but for other purposes.

Mr E’s further submissions that not enough attention had been paid to Mr Nuweke’s evidence got even shorter shrift. Mr Nuweke clearly found himself in a very difficult position, where he was a friend of Mr E, but Mr E was denying his occupation. His statement in the proceedings was flatly contradictory of his previous signed statement. It could not be said that the judge didn’t pay it enough attention where the judge had had a lot to say about it and it was simply contradicted both by his own previous statement and by the rent record and other documents before the court.

The Council’s case was formidable. There was no prospect of the Court of Appeal disagreeing with the judge’s findings and his view of Mr E’s evidence, in which he had lied about where he was living, his relationship with his wife and Mr Nuweke’s occupation of the flat. Renewed application for permission dismissed.

Mr E’s cunning plan went horribly wrong. The mysterious locked room turned out to be empty, both of Mr E and any intention to return. But what DID he do in there?