Ms Wendy Ann Holt v Reading Borough Council (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Sir David Keene,Lady Justice Arden |
| Judgment Date | 07 June 2013 |
| Neutral Citation | [2013] EWCA Civ 641 |
| Docket Number | Case No: B5/2012/2551 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 June 2013 |
[2013] EWCA Civ 641
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
Mrs Recorder Moulder
1RG51240
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Kitchin
Sir David Keene
Case No: B5/2012/2551
Liz Davies (instructed by Turpin & Miller LLP) for the Appellant/Defendant
Andrew Arden QC and Toby Vanhegan (instructed by Reading Borough Council) for the Respondent/Claimant
Hearing date: 14 May 2013
Approved Judgment
Introduction
This is an appeal by the defendant, Ms Wendy Holt, against the order made by Mrs Recorder Moulder requiring her to give up possession of her home, 28 Southdown Road, Emmer Green, Reading ("the property") to the claimant, Reading Borough Council ("the council"). Permission to appeal was refused by the Recorder but, on the defendant's application to this court, permission was granted on the papers by Rimer LJ. In broad terms, the defendant contends the Recorder fell into error in two respects: first, in deciding that it was reasonable to make a possession order; and second, in making an order for possession in the particular form that she did.
The background
The defendant is a single lady who was born on 1 December 1953 and she has lived in the property for the whole of her life. It is a detached house with three bedrooms and it has its own front and rear gardens.
The council is the owner of the freehold of the property and in April 1949 it granted a weekly tenancy of it to Mr Arthur Holt, the defendant's late father. Mr Holt died in 1977 and the tenancy was transferred to his widow, Mrs Edna Holt, the defendant's late mother. From the commencement of the Housing Act 1980, Mrs Holt enjoyed a secure tenancy. Mrs Holt died on 24 July 2010, aged 90, and the defendant thereupon succeeded to the tenancy by operation of ss. 87 and 89 of the Housing Act 1985 ("the 1985 Act").
The defendant cared for Mrs Holt for the last twenty years of her life. During that time Mrs Holt's health gradually deteriorated. She had a series of strokes and consequent mobility problems, and then developed Alzheimer's disease which made her increasingly confused and aggressive. There came a time when Mrs Holt needed care both day and night and, as her sole carer, the defendant provided it all. As the Recorder held (at [28]):
"No one reading her witness statement could fail to appreciate the enormous burden which caring for her mother placed on the Defendant and the selfless way in which she carried on over a period of years."
In January 2011 the council formed the view that to allow the defendant to remain in the property on her own was not an efficient use of its resources. She was, in the council's terminology, an under-occupier and so it considered she ought to apply for accommodation more suited to her needs. Under the council's housing allocation scheme, all applicants for housing assistance are placed on a priority band according to their level of housing need. Tenants who are under-occupiers are placed in priority band B, indicating that they have a high level of priority and an urgent need to move.
Accordingly, on 13 January 2011, the council assisted the defendant to complete a registration form for the allocation of a new property. The defendant was duly placed in band B and she became entitled to "bid" for a property for which she qualified. As a single person, aged 58, the defendant became entitled to bid for a property with one bedroom.
The defendant has, however, refused to bid for alternative accommodation because she does not wish to leave the property. It contains a lifetime of belongings and she is deeply attached to it. As her doctor explained, she feels secure there and is very low and anxious about having to move.
On 14 June 2011, the council therefore served notice on the defendant seeking possession of the property on ground 16 of Schedule 2 of the 1985 Act. On 18 November 2011, the claim for possession was issued.
On 6 February 2012, the council persuaded the defendant to view two alternative properties, 115 Grove Road, Emmer Green, Reading and 17 Dovedale Close, Caversham, Reading, both of which are one-bedroom flats reasonably close to the property. The defendant objected to both of them for a variety of reasons. A little later, two other one-bedroom properties became available at 2 Flambards, Lower Henley Road, Caversham, and 8/42 Knight's Way, Emmer Green, but the defendant declined to view or bid for either of them.
In May 2012 a ground floor one-bedroom flat became available in Dovedale Close, Caversham. It has gardens to the front and rear and its own shed for storage. The defendant viewed it on 15 June 2012. Although it was at the time in a relatively poor decorative state, the defendant was told that the council planned to redecorate it and bring it up to an appropriate standard. The defendant was invited to think about the flat and draw up a list of items that might make it more attractive to her. However, despite numerous chasing phone calls, the defendant never reverted to the council to indicate whether it was of any interest to her or what improvements might make it acceptable.
The pressures on the council's housing stock are very great. In July 2012 there were 9,486 applicants on its housing register. Of these, 1,242 were seeking three-bedroom properties, but the council had only 13 such properties available.
The trial of the claim came on for hearing on 10 September 20The Recorder gave judgment on 11 September 2012 and made the possession order against which the defendant now appeals.
The legislation
Section 84 of the 1985 Act provides, so far as relevant:
"Grounds and orders for possession
(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 in Schedule 2 ….
(2) The court shall not make an order for possession –
(a) on the grounds set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order,
(b) on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect,
(c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect;
and Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant."
In this case we are concerned with ground 16 (Schedule 2, Part III) which at the relevant time read:
"The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant and –
(a) the tenancy vested in the tenant by virtue of section 89 (succession to periodic tenancy), the tenant being qualified to succeed by virtue of section 87(b) (members of family other than spouse), and
(b) notice of the proceedings for possession was served under section 83
(or, where no such notice was served, the proceedings for possession were begun)
more than six months but less than twelve months after the date of the previous tenant's death.
The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include –
(a) the age of the tenant,
(b) the period during which the tenant has occupied the dwelling-house as his only or principal home, and
(c) any financial or other support given by the tenant to the previous tenant."
As for the suitability of alternative accommodation, Part IV reads, so far as relevant:
"1. For the purposes of section 84(2)(b) and (c) (case in which court is not to make an order for possession unless satisfied that suitable accommodation will be available) accommodation is suitable if it consists of premises –
(a) which are to be let as a separate dwelling under a secure tenancy, ….
….
and, in the opinion of the court, the accommodation is reasonably suitable to the needs of the tenant and his family.
2. In determining whether the accommodation is reasonably suitable to the needs of the tenant and his family, regard shall be had to -
(a) the nature of the accommodation which it is the practice of the landlord to allocate to persons with similar needs;
(b) the distance of the accommodation available from the place of work or education of the tenant and of any members of his family;
(c) its distance from the home of any member of the tenant's family if proximity to it is essential to that member's or the tenant's well-being;
(d) the needs (as regards extent of accommodation) and means of the tenant and his family;
(e) the terms on which the accommodation is available and the terms of the secure tenancy;
(f) if furniture was provided by the landlord for use under the secure tenancy, whether furniture is to be provided for use in the other accommodation, and if so the nature of the furniture to be provided."
In this case there was no dispute that the property was more extensive than the defendant reasonably required. So there were two issues for the Recorder to determine: first, whether it was reasonable to make the order for possession; and second, whether she was satisfied that suitable accommodation would be available for the defendant when the order took effect.
The general approach to a consideration of reasonableness in a...
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