[Updated 20/12/12. See below]

There is a rather odd case note on Lawtel on a High Court appeal of a dismissed defence to possession following an apparently failed succession…

Evans v Brent London Borough Council QB (Ramsey J) 18/12/2012 [note of extempore judgment on Lawtel]

From the note it appears that Ms Evans was the joint secure tenant of Brent with her father. She then moved out to take up an AST with her children in 2010, on a 12 month term, apparently to give space to her father, who was ill. In 2011 she moved back in. Soon after, her father died.

In 2012, Brent brought possession proceedings, on the basis that Ms E could not succeed her father under s.87 Housing Act 1985, as she had not been residing in the property as her principal home for the 12 months prior to her father’s death.

Ms E apparently defended challenging factual issues about the position on succession, apparently that she had lived with her father in the 12 months prior to his death. She also raised a public law defence that Brent’s policy on discretionary succession was unduly fettering its discretion by excluding those who would otherwise succeed under s.87, and an article 8 defence that the eviction was not proportionate.

At first instance – at what we have to presume was a first hearing – the Judge held that neither the public law or article 8 defences were seriously arguable. The Judge also found that Ms E had not resided with her father in the 12 months prior to his death and so had no s.87 rights to succeed.

Ms E appealed. The High Court held that there was no seriously arguable Article 8 defence. Further, the local authority’s decision under its policy on succession was set out in a letter that gave the relevant matters it had to consider and gave reasons for its refusal. There was no case that the Authority had not exercised its discretion because it was fettered by its own policy or that it had failed to take matters into account when exercising its discretion.

However, while the Authority had advanced strong documentary evidence that MS E had no intention of living with her father, the case raised issues of fact that needed to be determined. Ms E also had strong evidence. The Judge below should have considered the terms of E’s defence. It was not appropriate to deal with the case by way of summary judgment or CPR 55.8 where there were matters that required further investigation by the court.

Appeal allowed.

Comment
While this appears to be a decision that there was a factual case on the s.87 point that was not suited for disposal by summary hearing, it is rather difficult to be sure if this is right. It isn’t clear whether it was actually was a first or summary hearing on the original possession claim, for example.

The history is also not clear. Did the tenancy remain a joint tenancy after MS E had moved out, for example? I long to know more principally because the facts and cases reported in the note don’t actually make much sense.

So, would anyone care to enlighten us, given that this was an extempore judgment and nothing more will be forthcoming via that route? (Looks pointedly at Victoria Osler and Gillian Redford, Counsel and solicitor for Ms E respectively).

[Update: Thanks to Counsel for Brent, we have more details. And Lawtel really did confuse things.

This was not a joint tenancy, Ms Evan’s father was the sole secure tenant. Ms E and her children were listed occupiers. On 1 December 2010, she took up an AST with a 12 month term arranged through Brent’s rent deposit scheme. In November 2011, a month before the end of the AST, MS E returned to the property. The AST ended on 15 December 2011 and her father died on 16 December 2012.

Ms E’s defences were as in the Lawtel note outlined above, save that Ms E’s argument on succession was that although physically at the AST, she had always intended to return and that her absence was merely temporary, to give her father some respite.

The appeal was allowed on the basis that Ms E’s case that she had such an intention needs to be heard and determined on the evidence, despite evidence by Brent of Ms E asking to be housed elsewhere because of relationship breakdown.

The appeal argument was based on Camden LBC v Goldenberg [1996] 28 HLR 272, which found that, at least in some circumstances, an occupier who had been living elsewhere for part of the 12 month period for s.87 could still be said to be ‘residing’ at the relevant property.

Appeal allowed and case remitted to the County Court for hearing.

So, in one way, a very straight forward case, in which the appeal was allowed on the basis that there was evidence that needed hearing so the defence should not have been summarily dismissed at an initial hearing. ON the other hand, it shows the possibilities for confusion where a public law and/or article 8 defence faces possible dismissal at a summary hearing (Powell etc) and there is also a ‘conventional’ defence that should be addressed under CPR 55(8) at first hearing. The distinction between ‘not seriously arguable’ (Powell) and ‘disputed on grounds which appear to be substantial’ (CPR55(8)(2)) needs to be considered. ]