McCann and Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LEVESON |
| Judgment Date | 23 September 2004 |
| Neutral Citation | [2004] EWHC 2156 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 September 2004 |
| Docket Number | Case No: CO/3111/2004 |
[2004] EWHC 2156 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Leveson
Case No: CO/3111/2004
Mr Stephen Cottle (instructed by Eric Bowes & Co, Solihull) for the Claimant
Mr Ashley Underwood QC and Ms Catherine Rowlands (instructed by Birmingham City Council, Legal Services) for the Defendant
This is an application for judicial review of two decisions of Birmingham City Council ("the Council") in connection with the occupation by Mr Gerrard McCann of a local authority dwelling at 9 Anstey Grove, Acocks Green, Birmingham ("No 9"). The first (taken as long ago as 4 January 2002) is the decision to procure from Mrs McCann, the claimant's wife, a notice to quit after she had been re-housed following complaint of domestic violence. The second is a decision of 11 June 2002 to issue possession proceedings in relation to No 9 and not to offer Mr McCann alternative accommodation. Two other decisions both in May 2004, to enforce an order of possession made by the Court of Appeal and subsequently to reject representations to reconsider the decision to enforce the order were not pursued. These were the only original basis of the claim because of concerns relating to delay, but after McCombe J both gave leave to amend the claim form and granted permission in relation to all grounds (thereby removing the difficulties in relation to delay), it was agreed if Mr McCann succeeded on either or both of the first two, the second two were unnecessary and, if he did not, there was no real remaining basis for success.
As will be apparent, the broad dispute between the parties has already given rise to substantial litigation (ending only after the House of Lords dismissed a petition brought by Mr McCann for leave to appeal the adverse decision of the Court of Appeal). The courts have previously considered a wealth of evidence from both sides yet it is important to make clear from the outset that, save for two Council policy documents and a three page file note, initially, I saw none of it. Towards the end of the hearing, I was provided with a transcript of the evidence of two witnesses touching one aspect of the case. No witness statement in my papers is directed to these proceedings (the only statement being that of Mr McCann prepared in unsuccessful County Court proceedings for an injunction seeking to restrain the Council from executing the possession order). Thus, the facts have been derived essentially from the judgment of His Honour Judge Durman in the original County Court possession proceedings and the judgment of the Court of Appeal given by Mummery LJ in the conjoined appeals Bradney v Birmingham City Council, Birmingham City Council v McCann [2003] EWCA Civ 1783 ("the possession appeal"). I expressed my concern about the extent to which I was being required to rely on second hand analysis of evidence I had not seen. In the event, I have had to make the best of what has been placed before me. It is to a summary of the facts (in somewhat greater detail than Mummery LJ felt it necessary to provide) that I now turn.
The Facts
On 27 July 1998, the Council let No 9 to Mr McCann and his wife, Wendy, jointly. They lived there with their two children. Early in 2001 the marriage broke down. Mrs McCann alleged that she was the victim of her husband's domestic violence and moved out to live with her mother although at some stage she moved back, living at No 9 from time to time. On 5 April 2001, she obtained both a non-molestation injunction and an ouster order in relation to No 9; it is important to underline that this order followed a contested hearing albeit that Mr McCann was not then represented.
On 18 April, Mrs McCann submitted a homeless application setting out her case to be re-housed on the grounds of domestic violence. That referred to the injunctions and also alleged that Mr McCann had attacked her and a friend on the 14 April. The incident had led to Mr McCann's arrest and bail also on terms that he kept away from No 9. That condition was apparently removed in November 2001 and he was ultimately acquitted (in 2002) when Mrs McCann retracted her statement and there was apparently no evidence to support the prosecution; the background and reasoning behind that decision is unexplained.
On 24 May 2001, Mr McCann was interviewed by the Council. All I know about that meeting is that he acknowledged that he could not then return to No 9 (because of the injunction and bail conditions) but said that he was not willing to give up the tenancy although he did say that furniture was being removed.
On 8 August 2001, Mrs McCann moved out of No 9 and returned the keys to the Council with a note saying that she was giving up the tenancy. She was re-housed by the Council on the grounds of domestic violence. Thereafter, the Council inspected No 9 and discovered that many fittings had been removed so that in excess of �15,000 would be required to make it habitable; as far as it was concerned, from that time the premises were empty.
In fact, in November 2001, Mr McCann returned to No 9, initially staying from time to time; he renovated it (as I apprehend would have been his responsibility in any event). Having three bedrooms and intended for family occupation, however, it was clearly too large for Mr McCann on his own notwithstanding that he was having visiting contact with his children and, by application received by the Council on 4 January 2002 he applied to effect an exchange of property with another Council tenant. I know nothing of what Mr McCann knew of what had gone on but he was clearly back on reasonable terms with Mrs McCann (who had, of course returned the keys to No 9 presumably intended to cease to have any liability for the property); her handwriting appears on the application document.
On 4 January 2002, the relevant Council official, Mr Christopher Allen, interviewed Mr McCann. He explained that Mrs McCann had returned the keys, ended the tenancy, that the proposed exchange would not be considered and that he would be treated as a lodger in occupation. Nevertheless, Mr Allen realised that his understanding that the property was void and not occupied did not appear to be correct and so he took legal advice. Thereafter, on the same day, Mr Allen visited Mrs McCann and sought and obtained from her a notice to quit; from his cross examination at the County Court, it is clear that he did so because it was explained to him "as a formalisation process of the fact that Mrs McCann had ceased the tenancy". It was not suggested that there was any discussion about the effect of the document and Judge Durman found that "[Mrs McCann] had no idea about the effect on [Mr Mc Cann's] occupation of No 9 her signing of the document would have". Nevertheless, the judge went on to hold that, although she did not understand the effect of signing document on his occupation of the premises, it was a valid notice to quit by one joint tenant and it brought the joint tenancy to an end. Mrs McCann later made attempts to retract or cancel the notice (saying that she considered it "selfish � to stop his chances of settling"): these attempts were ineffective.
It is common ground that the notice to quit signed by Mrs McCann was valid and operated to bring the joint tenancy to an end irrespective of the wishes of the other joint tenant, Mr McCann. Thus, the Council continued to maintain that he was a lodger in occupation and served the relevant notices upon him. On 11 June 2002, the matter came to be considered by an Allocations Officer Review Panel. The Report to the Panel annexed copies of the notice to quit and the non molestation and ouster orders from the County Court. It explained that when Mrs McCann was re-housed, her children (aged 13 and 8) moved with her but that an informal arrangement for access meant that the children visited three days a week (with alternate weekends) and averaged three nights a week at No It went on that although Mr McCann had made an application to undertake a direct exchange of property with another tenant and he did not need three bedrooms, he now wished to remain at No 9; it recommended that possession of No 9 be sought but that Mr McCann be offered suitable alternative accommodation. That recommendation was not accepted by the Panel on the basis of the Council's policy in relation to domestic violence. A note of the grounds of the decision is expressed in these terms:
"There is a non molestation order which proves domestic violence. City Council policy on domestic violence denies the perpetrator the rights to accede to the late tenancy.
The property is also under occupied. Under the City policy on lodgers in occupation, Mr McCann would not qualify for the tenancy. As he has no dependants living with him [No 9] is a family dwelling and he does not qualify for the dwelling which was originally allocated as a qualifying family which has now been re-housed and there is no further housing need for Mr McCann to remain at the dwelling."
Thus, on 11 October 2002, possession proceedings were commenced. On 15 April 2003, Judge Durman observed in his judgment that both parties had agreed that he could deal with the matter rather than adjourn the application for Mr McCann to make an application for judicial review. He went on to find that Mr McCann was not entitled under domestic law to any right of occupation but nevertheless dismissed the claim on the basis that he was not satisfied that grounds existed for the interference with Mr...
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