London Borough of Merton v Clive Williams
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mance,Sir Martin Nourse,Lord Justice Ward |
| Judgment Date | 17 July 2002 |
| Neutral Citation | [2002] EWCA Civ 980 |
| Date | 17 July 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2001/2601 |
[2002] EWCA Civ 980
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY
COURT (HIS HONOUR JUDGE ELLIS)
(ON APPEAL FROM DISTRICT JUDGE MILLS)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Mance and
Sir Martin Nourse
Case No: B1/2001/2601
Mark Lowe QC & Wayne Beglan (instructed by The Legal Services Dept., L.B. Merton) for the Appellant
Robert Latham (instructed by Messrs Jacqueline Everett & Co.) for the Respondent
This is an appeal from a judgment of His Honour Judge Ellis given in the Croydon County Court on 22 nd November 2001, whereby he allowed an appeal from and set aside a possession order made by District Judge Mills on 3 rd November 2000, and ordered that the determination of the appellants' claim for possession of a flat, at 65 May Court, Pincott Road, London SW19 2LE, be adjourned pending an application for judicial review by the respondent, Mr Williams, to the Administrative Court.
The appellants are The London Borough of Merton ("the Council"), and by tenancy agreement dated 21 st March 2000 they granted Mr Williams, in respect of the flat, what was expressly stated to be "an introductory tenancy for the trial period of 12 months as defined under the Housing Act 1996 during which time it may be brought to an end in accordance with the Act". The tenancy was to commence on 3 rd April 2000 at a weekly cost, consisting of £56.76 net rent (payable in advance) plus £3.78 water charges and £0.48 for a TV aerial. Clause 3.3(b) provided that "The Tenant must occupy the dwelling as his/her only and principal home …". The flat had two bedrooms. Mr Williams was awarded a tenancy of a two-bedroom flat as a father having legal custody of a (then) 17-year old son, Markel (who became 18 on 3 rd July 2000), under a parental responsibility agreement dated 28 th January 2000.
On 29 th June 2000 the Council served on Mr Williams under s.128 of the Housing Act 1996 a Notice of Proceedings for Possession dated 26 th June 2000 informing him of the Council's intention to apply to the Court for an order for possession:
"because of
YOUR FAILURE TO TAKE UP OCCUPATION OF THE PROPERTY;
RENT ARREARS OF £690.16 AS AT CLOSE OF ACOUNTS ON 25 TH JUNE 2000".
The Notice further advised Mr Williams, in compliance with the requirements of s.128(6) and (7) of the 1996 Act, of his right to ask within 14 days for a review of the Council's decision, which would proceed on the basis of written representations unless he requested an oral hearing, and that:
"If you need advice about this Notice and what you should do about it, take it as quickly as possible to a Citizen's Advice Bureau, a Housing Aid Centre, a Law Centre or to a Solicitor. You may be able to receive Legal Aid, but this will depend upon your personal circumstances."
Mr Williams requested an oral review of the Council's decision, and was informed that this would take place on 20 th July 2000. On that day, he failed to attend, and the reviewing officer, the Council's Head of Operations in its Housing and Social Services Department, Mr Paul Ryrie, determined that he would proceed in Mr Williams' absence, and by letter dated 21 st July 2000 wrote informing Mr Williams that the matter had been considered in his absence and that:
"This year their [sic] were substantial arrears of rent outstanding on your account and I therefore believe that the Notice was properly served on you. In the circumstances I am unwilling to withdraw it and suggest that you contact Samantha Caird, your Housing Officer, urgently to make arrangements to clear your account."
It is accepted that Mr Ryrie was entitled to proceed, as he did, in Mr Williams' absence, under paragraph 7 of The Introductory Tenants (Review) Regulations 1997, which provides that "If any person shall fail to appear at the hearing, notice having been given to him in accordance with regulation 6, the person conducting the review may, having regard to all the circumstances including any explanation offered for the absence, proceed with the hearing notwithstanding the absence …". Dealing with Mr Williams' failure to attend, HHJ Ellis recites in his judgment that Mr Williams "says he made a mistake about the date and notified Miss Caird [the Council's officer handing the intended possession proceedings] of this later on the date set for the meeting". The date at the end of this passage does not quite reflect the evidence. Mr Williams stated in the witness statement used before HHJ Ellis (in paragraph 26) that: "Unfortunately, I made a mistake about the date of the review …. I realised what I had done and so either on the same day or the following day I telephoned the housing officer to explain what had happened. I spoke to a receptionist who explained to me that a decision had already been made to go ahead with the proceedings. This was confirmed by the letter of 21st July 2001." HHJ Ellis appears to have based himself on a statement by counsel not supported by the evidence (Transcript page 16). However, since counsel also confirmed that the telephone call was after the review decision, the material facts are on any view clear.
Possession proceedings were begun on 4 th September 2000. The Particulars of Claim (supported by a statement of truth signed by the Council's solicitor, Julie B. Belvir) relied upon failure to take up possession and failure to pay rent in the sum of £1044.01 by Mr Williams. The matter came before DJ Mills on 3 rd November 2000, when the arrangements for tape recording unfortunately failed. When the matter came before HHJ Ellis a year later, the Council's representative, Miss Caird, could not assist with any recollection of the course of events before DJ Mills. Mr Williams in his witness statement dated 22 nd November 2001, on the other hand, recounted that:
"…. I went to court on my own. I was not represented by a duty solicitor or anyone else and as far as I am able to remember the housing officer presented the case herself and was not represented by a barrister or a solicitor. I think that she explained to the judge that was [sic] an introductory tenancy and that there were arrears of rent. She did not say anything about me not living there. Everything happened very quickly. I explained to the judge about the housing benefit but I did not know really what to say. The judge told me that he did not have any option but to make a possession order."
It is at this point appropriate to set out the position regarding housing benefit. At or about the time he signed the tenancy agreement, Mr Williams completed and on 22 nd March signed and gave to Miss Caird a housing benefit application form, and was told by her that the actual amount he should pay per week (having regard to the anticipated benefit) was £7 (consisting of rebated rent of £4.623 and an insurance premium of £2.39). This amount he has at all times paid. In answer to a question in the form signed: "When did you move into the address you are claiming benefits for?" the date inserted was 3 rd April 2000—in other words the day which was to be the first day of his tenancy. In response to the next question, whether he had moved in the last two years and if so from what old address, the respective answers were affirmative and from 14 Hailsham Road, Tooting, SW17 9EN.
On 19 th May 2000 Mr Williams filled in a second housing benefit application. He cannot remember why, and says in his statement that it may have been because someone suggested this to him or he may have been sent a form. The application is date-stamped by the Council 13 th June 2000. During May 2000, Miss Caird acquired information which led her to think that Mr Williams had not moved into the flat. Early morning visits by an investigating officer, Mr Glover, on 2 nd and 7 th June 2000, when no contact could be established, confirmed this belief. The Council thus wrote a letter to Mr Williams dated 14 th June 2000 referring to his housing benefit claim and recording that:
"On the basis of the information available, the Council concludes that you are not in residence at the address and not entitled to Housing Benefit. Your claim will therefore be cancelled."
Mr Williams then telephoned the Council on 20 th June and Mr Glover attended the flat at 8.45 a.m. on 22 nd June 200 and found Mr Williams scraping wallpaper off the wall in the kitchen, in which there was a washing machine, but no cooker, fridge, or freezer and no furniture or floor covering at all.
According to Mr Glover's note (which was exhibited to Mr Williams' witness statement before HHJ Ellis):
"Mr Williams readily admitted that he had not yet moved in, but said that this was because he had been sick for the last couple of weeks with shingles, and also because he had only recently received his Social Fund Loan from the DSS".
Mr Glover then records that he told Mr Williams that he had checked with the DSS, and that they had advised that they had sent his loan and grant on 18 th and 19 th April 2000. The note goes on to recount further conversation in the course of which Mr Glover regarded Mr Williams as "changing his story". Mr Glover asked Mr Williams to provide documentary evidence for items paid for (with a view to occupation), and Mr Williams agreed to call at the office with these. The note also records:
"I explained to Mr Williams that HB was only payable when a claimant was in residence at the address he or she was claiming for. He readily accepted this and did not seem at all bothered that he might not be paid".
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