Fareham Borough Council v Terry Miller
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Kitchin,Lady Justice Black |
| Judgment Date | 06 March 2013 |
| Neutral Citation | [2013] EWCA Civ 159 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 March 2013 |
| Docket Number | Case No: B5/2012/2175 |
[2013] EWCA Civ 159
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
Mr Recorder Nicholas Wood
1PB03080
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lady Justice Black
and
Lord Justice Kitchin
Case No: B5/2012/2175
Mr Philip Glen (instructed by Southampton & Fareham Legal Services Partnership) for the Appellant
Ms Felicity Thomas (instructed by Swain & Co) for the Respondent
Hearing date: 6 th February 2013
This is an appeal by Fareham Borough Council ("the Council") against an order of Mr Recorder Wood made in the Portsmouth County Court on 3 rd August 2012. The Recorder dismissed the claim by the Council for possession of a one-bedroom flat at 50, Gibraltar Close, Fareham ("the Flat") which was let to the defendant, Mr Terry Miller, under a non-secure tenancy granted under Part VII of the Housing Act 1985.
Mr Miller (who is now 30 years old) has a long history of persistent criminal offending. Most of his convictions are for theft but his criminal record between 2000 and 2012 includes a number of offences of assault and public disorder. He has been using Class A drugs for many years and is a heroin addict. Many if not most of his convictions for theft (mainly for shoplifting) are connected with his drug habit. His rent is paid through housing benefit.
In 2009 the Council accepted that Mr Miller was homeless and in priority need; and that he had not become homeless intentionally. It satisfied its homelessness duty under Part VII by granting the non-secure tenancy of the Flat. The hope was that if Mr Miller could be properly housed and placed on an appropriate prescription for his drug addiction it would be possible to break the cycle of offending and so decrease the risk of harm, both to himself and to the general public.
The non-secure tenancy agreement for the Flat is dated 14 th September 2009. The tenancy was granted at a rent of £111.49 per week payable fortnightly in advance on and from 14 th September. Under clause 2 the tenant covenants:
"(d) not to allow any other person to occupy or share in the occupation of the premises; and
(j) not to do or permit or suffer to be done hereunder anything which in the opinion of the Council may be a nuisance damage or annoyance to or in any way interfere with the adjoining owners or occupiers."
Clause 3 provided that:
"It is hereby agreed that this Non Secure Tenancy Agreement may be terminated by either party giving to the other four weeks notice in writing to that effect to expire at noon on a Monday."
During 2010 the Council was advised by the police that Mr Miller was living with his girlfriend in Gosport. He was interviewed by a council housing officer and denied this but, in the meantime, his housing benefit payments had been stopped and significant rent arrears accrued. On 13 th May 2010 the Council served a notice to quit based on arrears of rent but by 24 th May Mr Miller's housing benefit had been re-instated and the arrears paid off. No further action was taken in respect of the notice to quit.
In June 2010 the Council received reports that other people were sharing occupation of the Flat and a senior housing officer visited the property and spoke to Mr Miller. He denied that anyone else was living there but he was reminded of the prohibition against sharing contained in the tenancy agreement. Mr Miller served a further term of imprisonment between June and August but was released on 26 th August 2010. On 3 rd September the Council was informed by the police that he had not returned to the Flat on his release and that when the police called at the property on 3 rd September they found four men there who were known to them: Anthony Cripps, Kevin Snelling, Trevor Hyde and Patrick Sitch.
The Council then wrote to Mr Miller asking him to attend an interview on 20 th September but by then he was back in prison. On 26 th November he was sentenced to a further 28 days in prison and then on 19 th January 2011 to a further five months. On 3 rd February 2012 Mr Miller's probation officer, Ms Sam Chuter, made contact with Mrs Jane Cresdee, one of the Council's senior housing officers, and told her that she had warned Mr Miller that if he continued to allow other people to stay at the Flat he risked losing his tenancy. On 30 th March 2011 Mr Miller was sentenced to a further 56 days in prison for yet another offence. There had still been no direct meeting with him to discuss his tenancy.
In April 2011 another tenant in Gibraltar Close complained of being threatened by Kevin Snelling and of constant arguments, shouting and the kicking of doors at the Flat. At the time Mr Miller was in prison but he says in his witness statement that when he was sentenced to several months' imprisonment in January 2011 he gave his keys to Snelling and asked him to check on the Flat and to collect the post. His case is that he did not permit Snelling to live in the Flat when he was in prison and is annoyed that Snelling has done so. He was unaware of the incident involving the other tenant or of other allegations of various disturbances emanating from the Flat. He says that he was released from prison in mid-May 2011 and that one of his licence conditions was that Snelling was not to visit the Flat or anywhere in its vicinity.
Faced with the complaint from the other tenants about Snelling's behaviour at the Flat, the Council served a notice to quit dated 20 th April 2011. Mrs Cresdee says in her witness statement that the notice was served because the Flat was being used by Snelling and others to the detriment of other tenants and that this was the only way to ensure that the Council regained control of the property. The Council could apply for anti-social behaviour injunctions against those involved but this would necessitate a number of separate proceedings and give rise to consequential problems about enforcement.
Following the service of the notice to quit, Mrs Cresdee did, however, agree to meet Mr Miller's probation officer and a representative from the Drug Intervention Programme to see if there were any alternatives to seeking an order for possession. The meeting took place on 19 th May; the day before Mr Miller was due out of prison. The only evidence of what occurred at that meeting is given by Mrs Cresdee. She says that she was told by Ms Chuter that the conditions for his release on licence would be tightly drawn so as to require him to live at the Flat alone. He would receive support there from various agencies up to four times a week and any breach of the licence conditions would mean an instant recall to prison.
On this basis Mrs Cresdee says that she agreed to give Mr Miller another chance. He was released from prison on 20 th May. The locks to the Flat were changed and he was given the new keys. Ms Chuter, who was present with the police, made it clear to Mr Miller that "he must keep to the terms of his licence and stay out of trouble or he really could end up losing his home".
But within four days of his release Mr Miller had been returned to prison for a further offence. Mrs Cresdee says that on hearing this she felt that the Council had no option but to continue with proceedings for possession. The claim form was issued on 20 th July 2011.
Mr Miller received further sentences for shoplifting on 26 th May and then again on 12 th July. The Council was advised by the police that he had given copies of the new keys to Cripps and others and on 14 th July the Council changed the locks once again. Mr Miller was released from prison on 19 th August and collected the keys to the Flat. The Council's evidence in the possession proceedings was that it was informed by the police that Snelling was living at the Flat again and had been involved in an incident on 23 rd August when he assaulted a woman near the Flat when drunk. Mr Miller was present at the time. This was followed by a series of further incidents in 2011 and 2012 involving the Flat in connection with drug taking and anti-social behaviour. It is unnecessary to describe them in any great detail. Neighbouring tenants have complained of rowdy, drunken behaviour by Snelling and other occupants of the flat; of fights involving smashed bottles; of Snelling urinating from the windows of the Flat on to the paths beneath; and of frequent drug use. The Flat is reported to be in a filthy, hazardous state strewn with used needles and other drug paraphernalia. Similar drug related debris has been left as rubbish in the common parts of the building. The neighbours and also their children have been exposed to all of this for months on end and are in fear of the drunken, violent behaviour of Snelling and his associates.
The Recorder described the Flat as having become during this period a running sore of criminal behaviour which has so upset some of the neighbours that they have requested anonymity in respect of their complaints for fear of reprisals. It is clear to me that the use of the Flat in this way must have made their lives intolerable.
The Defendant's case and his evidence is that he is not responsible for what has occurred. He says in his witness statement that when he was arrested in July 2011 he handed his keys to Cripps and asked him to lock up the Flat and send the keys to him in prison. He had no reason to believe that Cripps would allow Snelling or any other people to use the Flat in his absence. He denies that after his release from prison on 19 th August he allowed Snelling to live at the...
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