Carthew v Exeter City Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Etherton,Mrs Justice Baron,Lord Justice Thorpe
Judgment Date04 December 2012
Neutral Citation[2012] EWCA Civ 1913
Date04 December 2012
Docket NumberCase No: B5/2012/1128

[2012] EWCA Civ 1913

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EXETER COUNTY COURT

(HIS HONOUR JUDGE SALOMONSEN)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Thorpe

Lord Justice Etherton

and

Mrs Justice Baron

Case No: B5/2012/1128

Carthew
Appellant
and
Exeter City Council
Respondent

Mr Russell James (instructed by Cartridges) appeared on behalf of the Appellant.

Mr Stephen Reeder (instructed by Exeter City Council Legal Department) appeared on behalf of the Respondent.

(As Approved)

Lord Justice Etherton
1

This is an appeal from the order of HHJ Salomonsen dated 15 May 2012 in the Exeter County Court, by which he dismissed the appeal of the appellant, Amanda Carthew, pursuant to the Housing Act 1996 ("the 1996 Act") s.204 from the homelessness review decision of the respondent, Exeter City Council ("the Council"), dated 14 October 2011 pursuant to the 1986 Act s. 202.

The facts

2

I take the following factual summary from the Judge's judgment:

"1) The appellant was granted a sole secure tenancy of 23 Dickens Drive, Exeter ("the Property") by the Respondent ("The Council"). The property was part of the Council's social housing stock. In or about 2001/2002 Darren Aspinwall ("Mr Aspinwall') began to co-habit with the appellant at that address. In 2003 the appellant exercised her statutory right to buy the Property pursuant to Part IV of the Housing Act 1985. The discounted purchase price was £62,000. The purchase was financed by a mortgage advance from the Halifax BS, which was later subject to a re-mortgage with the Bank of Ireland. At all material times the mortgage repayments were affordable and were met.

2) In June 2005 the appellant's grandson, Jack, was placed in her care. In 2006 the court made a Special Guardianship Order in respect of Jack, appointing both the appellant and Mr Aspinwall as guardian.

3) In February 2008 the relationship between the appellant and Mr Aspinwall broke down and he moved out of the Property. A Case Note dated 03/03/2011 records that the property needed a new bathroom which the appellant could not afford. The appellant's case is that they discussed Mr Aspinwall buying the appellant out of the Property and her moving out. At some point in 2008 the appellant offered to sell her interest in the Property to Mr Aspinwall for a total payment of £15,000. No documentary evidence as to this is available but it appears that Mr Aspinwall paid the appellant either £4,500 or £5,000 in cash in about late 2008 together with a further £10,000 or £10,500 in or about January 2009. The appellant used the £5,000 to furnish her daughter's flat, and the £10,000 to buy herself a car. The appellant remained in occupation of the Property with her grandson Jack and her older son Bradley. In May 2010 the appellant's other grandson, Lewis, was placed in her care to join his sibling Jack.

4) At the end of August 2010 the applicant and Mr Aspinwall 'were still friends…and decided to give the relationship another go' and he moved back to live with her at the Property. On 23 rd July 2010 and 20 th August 2010 Messrs Grindeys solicitors acting for Mr Aspinwall and the Bank of Ireland had written to the appellant and provided to her documents proposing the transfer of her interest in the Property to Mr Aspinwall. Those letters advised the appellant to seek independent legal advice on the proposed transfer and enclosed a form requiring her signature if she declined to take such advice. The appellant did not take legal advice relating to the proposed transfer. Instead, she signed forms to transfer her interest in the Property to Mr Aspinwall. That transfer was completed in December 2010 and on 1 st December Grindeys confirmed completion of a remortgage in favour of the Bank of Ireland.

5). By February 2011 the appellant's relationship with Mr Aspinwall had again broken down. She left the Property taking the children with her and applied to the Council's Housing Options Service on 14/02/11 as 'Homeless, Relationship break-up'. The Council provided her with temporary accommodation on 21 st February 2011 and continues to do so."

3

The Judge observed that there were no mortgage arrears on 30 November 2010, when the property was remortgaged in Mr Aspinwall's name only.

4

Following investigations by the Council, Mrs Dana Kurtovic, the Council's Housing Options Officer, wrote the appellant a letter dated 8 June 2011 in which she stated her conclusion that the appellant had become intentionally homeless for the purpose of the Act 1996 s.19 in view of her decision to transfer her rights to the Property to her partner, Mr Aspinwall, as a consequence of which she had to leave the Property in February 2011 following her relationship breakdown with him.

5

The appellant, by her solicitors, requested a review of that decision. On 16 June 2011 the Council agreed to carry out a review and offered to continue to provide temporary accommodation pending that review. On 22 June 2011 the appellant's solicitor made written submissions for that review. On 28 June 2011 the Council met with the appellant's solicitor and permitted him to argue orally the merits of the homelessness application on behalf of the appellant. On 16 August 2011 the Council notified the appellant that it remained of the opinion that she had made herself intentionally homeless but nonetheless proposed to assist her with alternative accommodation options before withdrawing her temporary accommodation. On 5 September 2011 the appellant indicated that, rather than accept such assistance, she intended to appeal the homelessness review decision and asked the Council to reconsider its review decision. The Council agreed to carry out a further review of the intentional homelessness decision and on 17 September 2011 notified her that it was again minded to find her intentionally homeless and gave her a further three weeks to make any final submissions. Further submissions were made on behalf of the appellant by her solicitors on 3 October 2011.

6

Mr Chris Hancock, the Council's Housing Needs Manager, sent the appellant a letter dated 14 October 2011 with the result of the review. It was that the original decision that the appellant was intentionally homeless was correct and should be upheld. The Judge helpfully summarised Mr Hancock's reasoning in paragraph 14 of his judgment as follows:

"a) The [appellant] deliberately transferred her property rights in the Property to Mr Aspinwall in December 2010.

b) That was a reckless act in the known circumstances including the 'up and down nature' of the relationship between the appellant and Mr Aspinwall, and the appellant deliberately ignoring the former warnings to seek independent legal advice before agreeing to any transfer.

c) Had she not transferred her property rights, then Mr Aspinwall would not have been entitled to require her to leave the Property when the relationship broke down again two months after that transfer.

d) The cause of her homelessness was the transfer of her property rights and not the breakdown of the relationship.

e) The council did not accept the appellant's assertion that had she taken legal advice prior to the transfer, she would inevitably have been advised that she had no option but to transfer her legal interest to Mr Aspinwall."

The proceedings

7

The appellant appealed the review decision pursuant to the Housing Act 1996 s.204. The Notice of Appeal was issued on 4 November 2011. The Judge summarised the grounds of appeal in paragraph [15] of his judgment as follows:

"15.1 That the council 'erred in concluding' that the substantive cause of the appellant's homelessness was her act of transferring her legal rights in [the Property] to Mr Aspinwall by misinterpreting or misapplying the law on whether this act was deliberate within the meaning of S 191 of the Housing Act, failing to take into account the circumstance of the 2008 'agreement', failing to put to the appellant material issues that the Council considered weighed against the appellant and failing to properly consider whether the homelessness was as a matter of law 'in consequence' of the formal transfer.

15.2 That the council 'erred in concluding' that the substantive cause of the appellant's homelessness was her failure to take legal advice before transferring her legal rights in [the Property] to Mr Aspinwall by failing to put to the appellant material issues that the council considered weighed against the appellant and failing properly to consider whether the homelessness was as a matter of law 'in consequence' of the failure.

15.3 That the council 'erred in its consideration' of whether the relationship breakdown was a break in the chain of causation in that it failed to ask whether the incident of homelessness would have occurred without the intervening breakdown in the relationship and in this regard reached a decision that no reasonable local authority, properly directing itself, could have come to."

8

The appeal came before the Judge, sitting in the Torquay and Newton Abbot County Court, on 23 February 2011. The Judge dismissed the appeal in a lengthy and detailed reserved judgment handed down on 26 April 2012.

9

Having set out or referred to various provisions of the 1996 Act, including sections 191, 182, 202, 203 and 204, and the Code of Guidance to Part VII of the 1996 Act, and referred to Re Islam [1983] 1 HLR 107, Nipa Bagum v Tower Hamlets LBC [2001] 1 WLR 306, R v Hillingdon LBC ex parte Pulhofer [1986] AC 484, Cramp v Hastings Borough Council: Phillips v Camden LBC [2005] HLR 48 and O'Connor v Kensington and Chelsea RLBC [2004] HLR 37, and set out the submissions of counsel for each of the...

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