Expectations are not existing facts.

Enfield LBC v Najim (2015) CA (Civ Div) 04/03/2015 [Note on Lawtel and here. Not on Bailii yet]

This was Enfield’s appeal from a s.204 appeal quashing Enfield’s decision and review decision that Ms N was intentionally homeless.

Ms N had a one year assured shorthold tenancy. She had withheld rent on three occasions: on the first in order to purchase some floor tiles and on the second in order to pay for the installation of some garden fencing. Ms N insisted that the landlord had consented to this, including the withheld rent.

In the interim the landlord had served a notice to recover possession but had used the wrong form and didn’t take matters any further. Ms N then withheld rent to purchase a replacement washing machine.

The landlord told Ms N that the tenancy would not be renewed because of the withholding of rent and because the property was needed for the landlord’s own occupation. There were possession proceedings and Ms N was evicted. The landlord then relet the property.

MS N applied to Enfield as homeless. Enfield decided she was intentionally homeless due to withholding rent and upheld that decision on s.202 review. On s.204 appeal, the judge held that the reviewing officer had erred in two respects: in wrongly taking into account the reletting as cancelling out the landlord’s stated intention to return to the property, and in failing to consider whether the eviction was a reasonable consequence of the withholding of rent in accordance with the Homelessness Code of Guidance for Local Authorities.

Enfield appealed to the Court of Appeal. Ms N argued that the act of withholding rent to pay for a replacement washing machine was an act done in good faith and in ignorance of the fact that it would lead to eviction.

The Court of Appeal found:

(1) The landlord had said that she wished to return to the property. However, when the eviction took place about a year later after proceedings, new tenants had moved in. The landlord’s previously stated wish to return could no longer be an operative reason. The reviewing officer had not considered the wrong time period in coming to her conclusions and was entitled to consider the reasons over the whole period. The landlord could have taken steps to evict at any time after the tenancy had expired, even if the original intention to resume occupation was no longer held. The reviewing officer had not erred in finding that the operative reason was the withholding of rent and the judge had been wrong to find an error in that decision.

(2) It was necessary to give the reviewing officer’s decision a benevolent interpretation, Holmes-Moorhouse v Richmond upon Thames LBC [2009] UKHL 7 [cited inevitably]. Although the reviewing officer had failed to mention in terms para.11.11 of the Code of Guidance she had in substance dealt with the respondent’s argument based on para.11.11 to the effect that a possession order would not have been made on the basis of the amount withheld so that it was not reasonably foreseeable that the withholding would lead to eviction.

Withholding of rent, even in a relatively small amount, was a breach of the terms of the tenancy in the absence of the landlord’s consent. While a court may well not have made a possession order based on that amount of withheld rent, this was beside the point, as the fixed term of the tenancy was at an end and the landlord was not bound to renew. The review officer was entitled to find that the non-renewal of the tenancy was a reasonable result of the rent being withheld without consent.

(3) Ms N was not unaware of any relevant fact in the terms of s.191(2). The relevant fact had to be an existing fact such as the fact that a person was a secure tenant or a belief that the rent was being paid by a third party, and could not be a belief in the happening of a future event. Ms N’s failure to foresee that withholding a small part of the rent would lead to the non-renewal and ending of her tenancy was not a fact of which she was unaware for the purposes of s.191(2).

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged , .

3 Comments

  1. Pingback: Expectations are not existing facts – Nearly Legal | Current Awareness

  2. Supreme Court refused permission to appeal:

    Permission to appeal be refused because the application does not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time. The issue turned mainly on the factual evaluation made by the reviewing officer and the Court of Appeal was plainly right about section 191(2).

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