London Borough of Lewisham (Respondent/Claimant) v (1) Sabrina Olukunke Akinsola (Sued as Sabrina Adeyemi) (Appellant/First Defendant) (2) Anthony Adeyemi (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,LORD JUSTICE SEDLEY |
| Judgment Date | 14 May 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0514-13 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 1999 |
| Docket Number | CCRTF 99/0126/2 |
[1999] EWCA Civ J0514-13
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOOLWICH COUNTY COURT
(His Honour Judge Welchman)
Royal Courts of Justice
The Strand
London WC2
Lord Justice Swinton Thomas
Lord Justice Sedley
CCRTF 99/0126/2
MR A RIZA QC and MR S MUSTAFA (Instructed by Messrs John Itsagwede & Co., London SE15 4TL) appeared on behalf of the Appellant
MR T COSGROVE (Instructed by Lewisham Borough Legal Department, Lewisham Town Hall, Catford) appeared on behalf of the Respondent
Friday 14th May, 1999
Lord Justice Sedley will give the first judgment.
This is an appeal, brought by leave of the court, against a decision of His Honour Judge Welchman, sitting at Woolwich County Court on 15th October 1998.
The application before the judge was for an order for possession of premises, a three-bedroom maisonette, in Goosander Court, London SE8 which had been let on a secure tenancy to the first defendant, the present appellant, by the claimant local authority, the London Borough of Lewisham, in October 1989. Possession was claimed on the ground spelt out in ground 5 of Schedule 2 to the Housing Act 1985, that:
"The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by-
(a) the tenant; or
(b) a person acting at the tenant's instigation."
By section 84 sub-sections (1) and (2) of the Housing Act 1985:
"(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out Schedule 2.
(2) The court shall not make an order for possession-
(a) on the ground set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order."
It was proved to the judge's satisfaction, and not disputed on appeal before us, that the appellant's tenancy had been procured by fraud. The fraud was a false statement as to her having no accommodation at the time of the application (under what was then the Housing Act 1985) in June 1989. In truth, the appellant had a tenancy of a dwelling in Southwark. She had had it since 1983 and it was still in being at the time when she applied mendaciously to Lewisham for housing as a person threatened with homelessness.
Given the findings and the concession, it is not necessary to travel further into the facts. The question which the judge then had to address was whether it was reasonable to make a possession order. He said this:
"As to whether I should make a possession order, it is plain that the court has a wide discretion. The fact remains that she has lived at the property since 1989, that she has two children and that they have lived there all their lives. They are at a local school. I have seen a report from their school saying that it would be detrimental to the children if they are moved from the area. It is a very powerful factor to be weighed in the scales. The two children are wholly innocent but would be affected by an order. It is clear to me that the first defendant is an intelligent and resourceful woman who is well able to express herself and who has a number of qualifications including word processing skills. She is in employment, running a child care facility employing 5 people including her husband. He is a minister, but he helps her out. Her income is in the region of £15,000 per annum. She has a partner and is in a stable relationship. In the last few months they have paid off a considerable amount of the arrears they owed. The first defendant has produced a bank statement showing she is in comfortable credit.
If the court makes a possession order it will cause difficulties, but this family are much better placed than others to find alternative housing. They have a number of skills and are making a reasonable living. They are far better placed than many others who are in desperate need of housing and who are being kept out by reason of the false statements made by the first defendant.
The deliberate and calculated deceit weighs heavily in the scales against the defendant. There is an undoubted need for honesty in housing applications. Local authorities obviously do make inquiries, but if people deliberately mislead them they will sometimes get housing. There is an acute shortage of housing and the particular type is in great demand. The public interest is best served by giving housing to those who are honest and who have waited their turn on the housing list. It is an affront to those honest applicants and to others observing how the local authority performs its duties, to deprive others of this property.
In all the circumstances, and notwithstanding a degree of hardship (I suspect the difficulties will be overcome), having regard to the deliberate conduct, the pressing housing need and the public interest, it is reasonable to make a possession order."
The learned judge accordingly ordered possession to be given in six weeks' time.
For the appellant, Mr Riza accepts that, as far as it goes, the judge's reasoning on reasonableness is impeccable. His contention, however, is that it does not go far enough. He submits that there is one critical factor that the judge left out of account, albeit counsel then appearing for the appellant did not raise it. It is the question whether making a possession order would simply result in the claimant local authority having to rehouse the defendant and her family as homeless the moment the order took effect; in other words, whether it would be futile to make a possession order. If the answer, says Mr Riza, was that it plainly would be futile, then it would certainly strongly contraindicate the reasonableness of making a possession order and would be enough to cause this court to overset the judgment for having omitted a highly material and potentially conclusive factor from the consideration of reasonableness.
I am content to address this point without deciding more than that if facts which plainly bear upon reasonableness are before the court, then the judge must deal with them in considering reasonableness, whether or not they have been specifically flagged up by the defendant or the...
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