Windsor and District Housing Association v Hewitt (2011) CA (Civ Div) 19/05/2011 [On Lawtel and in a note from Tanfield Chambers.]

Not chicken related, thankfully. This was the Court of Appeal hearing of Windsor & District’s appeal from the refusal of the first instance Judge to grant a possession order under ground 17 Schedule 2 Housing Act 1988.

Ms Hewitt was an assured tenant of Windsor’s, in a one bed flat. She applied for a transfer to a two bed property, stating in her application that she needed a two-bedroom flat on medical grounds so that her son, who was her carer, could live with her. She was offered and accepted a two bed flat. On commencing the tenancy, she stated in the “core lettings log” that she would be the only occupant and that was indeed the case.

Windsor began possession proceedings under Ground 17:

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by: (a) the tenant, or (b) a person acting at the tenant’s instigation.

At trial before the District Judge, the Judge held that Ms H’s representation that her son was to live with her had become false at the time  of the commencement of the tenancy, but that Windsor had failed to prove that Ms Hewitt remembered her original representation. In addition, as Ms H had recorded in the ‘core letting log’ that she was the only person who would be living in the property, there was no inducement to grant the tenancy on a false basis. The ground was not made out.

Windsor appealed, on the grounds that:

i) there was no basis for determining whether H remembered making the representation since she had never said that she had forgotten it;

ii) any statement made before the tenancy was entered into was material and capable of giving rise to the inference that it had thereby been induced into granting the tenancy.

The Court of Appeal held that:

Before a Judge embarked on an enquiry into whether a party remembered their representations, that party had to have asserted that they had forgotten it. There was no evidence to this effect before the Court and it had not been an issue in the case. The Judge should not have made such a finding on something not raised by the parties and not at issue in evidence.

The purpose of the ‘core lettings log’ was to gather data and was not relied upon by Windsor in deciding whether to grant a tenancy. It therefore could not be relied on by Ms H as correcting her earlier misrepresentation.

The District Judge’s order was wrong and set aside.