Guerroudj v Rymarczyk
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Mr Justice Hildyard,Lord Justice Munby |
| Judgment Date | 14 July 2015 |
| Neutral Citation | [2015] EWCA Civ 743 |
| Docket Number | Case No: B6/2014/2682 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2015 |
[2015] EWCA Civ 743
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Oxford Family Court
His Honour Judge McIntyre
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Munby
(President of the Family Division)
Lord Justice Underhill
and
Mr Justice Hildyard
Case No: B6/2014/2682
Katherine Dunseath (instructed by Quality Solicitors Truemans) for the Appellant
The Respondent appeared in Person
In 2006 the Appellant, Mr Salim Guerroudj, and the Respondent, Ms Rymarczyk, started to live together as a couple. Both were at that time in work, but in 2010 Mr Guerroudj suffered a slipped disc which has caused him long-term back problems, and it appears that he has for some time been unable to work. In 2013 the First-tier Tribunal (Social Entitlements Chamber) found that he was entitled to employment and support allowance.
In August 2011 they entered into a joint tenancy, from the City Council, of a flat on the Blackbird Leys estate in Oxford, at a rent of just under £80 p.w. The reason, or in any event one of the reasons, why they were offered that accommodation was Mr Guerroudj's back condition. The flat was not "adapted" in any significant way, but it was on the ground floor, which was important because he had difficulty climbing stairs. The tenancy was a secure tenancy within the meaning of the Housing Act 1985.
Unfortunately in mid-2013 the relationship broke down. In view of the difficulty of finding other accommodation they continued to live together, but the situation generated considerable friction, with each accusing the other of violent behaviour. In late 2013 Mr Guerroudj offered to pay Ms Rymarczyk £1,500 to move out, but in the end nothing came of that approach. Because of the friction Ms Rymarczyk in late 2013 started a new job working night shifts as a warehouse operative at BMW on (after an introductory period) £8.50 per hour.
Eventually on 9 April 2014 Mr Guerroudj issued proceedings in the Oxford County Court – now the Family Court – seeking a non-molestation order and an order that Ms Rymarczyk quit the flat. On 17 April there was a hearing before the District Judge. She required Mr Guerroudj to issue proceedings under Part IV of the Family Law Act 1996 for a transfer of the tenancy into his name, which would be consolidated with the non-molestation proceedings. Undertakings were given to cover the position until a full hearing. Mr Guerroudj duly issued proceedings for a transfer of the tenancy; but so also did Ms Rymarczyk.
I should at this stage summarise the relevant provisions of the 1996 Act. Section 53 (which falls under Part IV) enacts Schedule 7, which is headed "Transfer of Certain Tenancies on Divorce etc or on Separation of Cohabitants". The relevant parts of the Schedule are as follows:
(1) The effect of para. 3 is that where two "cohabitants" who occupy a dwelling-house under a "relevant tenancy" (whether jointly or in the name of one of them) cease to cohabit the Court may make "a Part II order". Such an order is, in effect, an order for the transfer of the tenancy from one cohabitant to the other.
(2) Para. 5 is headed "Matters to which the court must have regard" and reads (so far as relevant) as follows:
"In determining whether to exercise its powers under Part II of this Schedule and, if so, in what manner, the court shall have regard to all the circumstances of the case including—
(a) the circumstances in which the tenancy was granted to either or both of the spouses, civil partners or cohabitants or, as the case requires, the circumstances in which either or both of them became tenant under the tenancy;
(b) the matters mentioned in section 33(6)(a), (b) and (c) … and;
(c) the suitability of the parties as tenants."
The "matters mentioned in section 33(6) (a), (b) and (c)", as referred to at (b), are:
"(a) the housing needs and housing resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3), on the health, safety or well-being of the parties and of any relevant child …"
(3) Para. 10 of the Schedule deals with, in effect, the payment of compensation to a dispossessed cohabitant. It reads (again, so far as relevant):
"(1) If the court makes a Part II order, it may by the order direct the making of a payment by the spouse, civil partner or cohabitant to whom the tenancy is transferred ("the transferee") to the other spouse, civil partner or cohabitant ("the transferor").
(2)–(3) …
(4) In deciding whether to exercise its powers under this paragraph and, if so, in what manner, the court shall have regard to all the circumstances including—
(a) the financial loss that would otherwise be suffered by the transferor as a result of the order;
(b) the financial needs and financial resources of the parties; and
(c) the financial obligations which the parties have, or are likely to have in the foreseeable future, including financial obligations to each other and to any relevant child
(5) …".
The applications came before HH Judge McIntyre on 17 June 2014. Mr Guerroudj was represented by his solicitor Ms Davies. Ms Rymarczyk was unrepresented, though she was accompanied by a McKenzie friend. Both parties had filed witness statements and the Judge heard oral evidence. Unsurprisingly, since both parties had made applications, it does not appear to have been in issue that the statutory conditions for the making of a Part II order applied.
The Judge gave a short ex tempore judgment in Mr Guerroudj's favour. I need not summarise his reasoning in any detail. In brief:
(1) He found that Mr Guerroudj's back condition was a very significant factor in the grant of the tenancy in 2011: his GP had written to the Council twice giving details of what was described as "an ongoing and debilitating medical condition" and supporting the application for a tenancy.
(2) He held that there ought to be a transfer of the tenancy from one party to the other. He acknowledged that that would be hard on whichever of them had to quit.
(3) At paras. 8–13 he reviewed the relevant circumstances. Both parties said that it would be difficult to find suitable alternative accommodation; but the assertions seem to have been unparticularised and unevidenced. In Ms Rymarczyk's case, she is recorded as only having said that she needed to stay because the flat was close to her work. In Mr Guerroudj's case the Judge said that he had heard "very little evidence" as to what difficulties finding alternative accommodation would involve. At para. 12 he said:
"Ms. Rymarczyk feels that she will be penalised if she has to give up the tenancy because she works hard, is industrious and she feels that she will be penalised because of the fact that she is in work, whereas the Applicant will remain on his benefits. She feels, but there is no evidence about it, that the Applicant would get a room which he could afford on the benefits he receives if he was ordered out of the flat."
At para. 13 he said that it was very questionable whether Mr Guerroudj could afford the rent on his own: he had said that he would give up smoking, but the Judge was sceptical about whether that would make the difference. At para. 14 he expressed his sympathy for Ms Rymarczyk as a hard-working and independent person.
(4) At paras. 14–15 he considered the question of compensation. He referred to Mr Guerroudj's earlier offer to Ms Rymarczyk of £1,500 to quit. He said that Mr Guerroudj had said on oath that he remained able to obtain that sum from his brothers in Algeria, whereas it did not appear that Ms Rymarczyk could afford to pay any compensation to Mr Guerroudj.
(5) At para. 16 he referred to the relevant provisions of the Family Law Act 1996.
(6) At para. 17, without further reasoning, he announced his decision as follows:
"In all the circumstances of the case the order which I would propose to make … is that upon payment of £1500 compensation to Ms Rymarczyk she shall transfer the tenancy to Mr Guerroudj. I would order that both payment be made and transfer completed by three weeks on this Friday, namely 11 th July of this year."
(7) However, at para. 18 he also said this:
"I would suggest to both parties that they should, if they have not done so already, approach the housing officer to see whether there is any alternative to that order being made. It may be that there is not, in which case the order stands. It may be that there is, in which case either party would have permission to bring the matter back to me."
It can fairly be said that the Judge does not state explicitly why he found that the balance came down in favour of Mr Guerroudj (subject to para. 18), though I would not wish to be too critical of an ex tempore judgment. But it seems clear that he regarded the decisive point as being that, whereas both would face real difficulties if they had to leave, Mr Guerroudj was in a position to compensate Ms Rymarczyk, at least to some extent, but that she could not compensate him.
The Judge's formal order was (so far as relevant) as follows:
"… And upon the Court inviting both parties to make enquiries of the Housing Department of Oxford City Council to see whether an alternative to the implementation of this order can be found
The Court Orders
1. The Applicant Salim Guerroudj shall pay or cause to be paid to the Respondent Katarzyna Rymarczyk compensation in the sum of £1500 by the 11 th of July 2014.
2. Immediately upon payment of the compensation provided in...
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