Lanja Najim v London Borough of Enfield
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Kitchin,Lord Justice Floyd |
| Judgment Date | 04 March 2015 |
| Neutral Citation | [2015] EWCA Civ 319 |
| Date | 04 March 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B5/2014/1845 |
[2015] EWCA Civ 319
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTAL LONDON COUNTY COURT
(HER HONOUR JUDGE FABER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Longmore
Lord Justice Kitchin
Lord Justice Floyd
B5/2014/1845
Mr L Johnson (instructed by Hopkins Muray Heskin) appeared on behalf of the Applicant
Mr D Lintott (instructed by London Borough of Enfield) appeared on behalf of the Respondent
The question in this appeal from Her Honour Judge Faber in the Central London County Court is whether the reviewing officer of London Borough of Enfield, which I shall call "Enfield", misdirected herself when she decided that Mr and Mrs Najim were intentionally homeless. They had an assured short-hold tenancy of No 30 Haselbury Road North 18 in London from 3rd April 2009 to 2nd April 2010. Their landlady was Ms Watanabe.
She did not renew the tenancy when it expired because, as she put in a letter to her agents Masons of 12th April 2010, copied to Mrs Najim, Mr and Mrs Najim had withheld rent for works that had not been agreed and have removed furniture and because she desired to return to the property.
Mr Watanabe re-let the property a few days after resuming possession, a fact which Enfield's reviewing officer took into consideration when concluding that the cause of the non renewal of the tendency was withholding of rent by the Najims.
The first question is whether the reviewing officer was entitled to take account of that fact. The second question is: did she ask herself whether the Najims' ceasing of occupation was reasonably to be regarded as a likely consequence of the Najims' deliberate conduct for the purposes of Housing Act 1996, section 191 of which provides:
"(1) A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.
(2) For the purposes of subsection (1) an act or omission in good faith on the part of a person who was unaware of any relevant fact shall not be treated as deliberate."
Paragraph 11 of the Code of Guidance issued to housing authorities dealing with homelessness applications required reviewing officers to consider whether the loss of an applicant's previous home is "the reasonable result" of the relevant act or omission giving rise to homelessness. The reviewing officer did not refer to this guidance but did consider the Najims' solicitor's submission that an application for possession of an existing tenancy, when a small amount of rent had been deducted for repairs or other improvement, would not have been successful. By implication, the submission continued that the eviction in the present case could not therefore be considered reasonable or proportionate.
The terms of the tenancy
Clause 6A contained the obligation to pay the rent at the rate of £1050 per month. Clause 6(c) prohibited repairs or redecoration without the landlord's written consent. Clause 6(d) prohibited alteration or addition without consent. Clause 6(e) required the tenant prior to replacement of any lost or damaged item to obtain the landlord's approval. Clause 6(f) prohibited the tenant from bringing additional furniture onto the premises without written consent.
Relevant History
Rent was withheld on three occasions: on 3rd August 2009 the Najims deducted £68 from the rent because Ms Watanabe had agreed to replace the bathroom flooring. Both she and Mr Najim had gone to B & Q to acquire tiles for which Ms Watanabe paid. But more tiles and grout were required to complete the flooring so Mr Najim purchased £68 worth of further tiles and deducted that amount from the rent.
On 2nd October 2009 Mr Najim deducted £388 from the rent because Ms Watanabe had agreed to put up partition fencing in the back garden. She had bought the fencing from B & Q and said she would instruct someone to put it up. The Najims thought she was taking too long and arranged for the job to be done for £388 which they then deducted from the rent.
In respect of both these deductions the Najims said that Ms Watanabe consented to the deductions but the reviewing officer decided that no such consent had ever been given. In fact Ms Watanabe served what is called a section 21 notice to terminate the tenancy on 2nd October, the day of the second deduction, complaining of breaches 6(a), 6(c) and 6(d) of the tenancy agreement. The notice was however invalid because it was in the wrong form for alleging breaches of the tenancy agreement. Ms Watanabe never obtained possession for those breaches and it seems the rent problem was thereafter resolved in the sense that Ms Watanabe did not pursue the matter any further.
On 3rd February 2010 the Najims deducted from rent, now for the third time, the sum of £260 because the washing machine had broken down. The Najims have asserted that several requests had been made for the washing machine to be replaced. Again, they said it was agreed that the Najims could purchase the machine and deduct the amount paid from the rent. But the reviewing officer decided that no such agreement had been made and the deduction was therefore a breach of the tenancy agreement.
On 1st March 2010 Masons wrote to Mr and Mrs Najim to say that the landlord would not be renewing the tenancy when it expired on 2nd April 2010. On 12th April 2010, after that expiry, Ms Watanabe wrote to Masons in the following terms and I now quote verbatim:
"I have advised you that I do not wish to renew the tenancy due to the tenants withholding rent for works that have not agreed or approved and the removable and deliberate loss of all the furniture within the property without my permission. I also need to return to the property due to a change in my circumstances."
On 25th June 2010 Ms Watanabe served a valid section 21 notice and she issued a claim form for possession on 8th September. On 6th January 2011 DJ Morley made an order for possession. On 25th February 2011 Ms Watanabe served notice of eviction timed for 5th April 2011 when eviction in fact took place. No one can say that the Najims had been hustled out of the property.
On 26th April Ms Watanabe re-let the premises to tenants who had already moved in on 16th April. The Najims applied to Enfield for accommodation but Enfield decided on 14th May 2012 that they were intentionally homeless. The reviewing officer confirmed that position by her letter of 30th May 2013.
On 20th May 2014 Her Honour Judge Faber found that there were two errors of law in the reviewing officer's decision (i) she wrongly took account of the fact that after eviction on 5th April 2011 Ms Watanabe almost immediately re-let the property as negativing her statement in the letter of 12th April 2010 that she needed to return to the property due to a change in her circumstances. If the subsequent re-letting is left out of account the right conclusion might be that the operative reasons for the Najims ceasing to occupy the property was not their withholding of rent but Ms Watanabe's wish to resume possession for her own occupation.
(ii) she omitted to consider whether the eviction of Mr and Mrs Najim was a reasonable consequence of the withholding of rent.
Mrs Najim, who is the sole claimant in these proceedings, says that the reviewing officer made a further error of law in failing to consider the argument that the withholding of rent was not deliberate because it was done in good faith when she was unaware of a relevant fact, namely the withholding of rent would result in her being evicted. This is the subject matter of a respondent's notice.
Operative reason for non renewal
If Ms...
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