Thurrock Borough Council v Aaron West
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Dame Janet Smith,Lady Justice Hallett |
| Judgment Date | 08 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1435 |
| Docket Number | Case No: B5/2012/0791 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 November 2012 |
[2012] EWCA civ 1435
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASILDON COUNTY COURT
District Judge Hodges
IPB56438
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hallett
Lord Justice Etherton
and
Dame Janet Smith
Case No: B5/2012/0791
Mr Ryan Kohli (instructed by Thurrock Council) for the Appellant
Liam Sullivan (instructed by Cumming & Riley) for the Respondent
Hearing dates : 24 th October 2012
This is an appeal by Thurrock Borough Council ("the Council") from the order dated 13 March 2012 of District Judge Hodges in the Basildon County Court dismissing the Council's claim against the respondent, Aaron West, for possession of 12 Leicester Road, Tilbury, Essex, RM18 7AX ("the Property").
The sole ground of the defence to the claim, and the sole ground for refusal of possession, was that an order for possession would be disproportionate and so an infringement of the right of the respondent to respect for his home under Article 8 of the European Convention on Human Rights ("Article 8").
Factual background
The facts are not in dispute and may be summarised in outline as follows.
The Property is a three bedroom end-of-terrace house.
On 15 November 1967 the Council granted a weekly joint tenancy of the Property to Mr George Henry West and Mrs Violet Rose West. There is some contradictory evidence as to whether they were the grandparents or great grandparents of the respondent, but I shall refer to them as his grandparents as that is the description that has been used by both counsel and was the description used by the District Judge in his judgment.
In 2007 the respondent began occupying the Property with his grandparents. He was subsequently joined by his son, Harley West, on his birth and his partner, Samantha Dowward.
The respondent's grandfather died on 28 September 2008. The tenancy automatically vested in the respondent's grandmother as successor pursuant to the provisions of the Housing Act 1985 ("the 1985 Act") ss. 87 and 89(2).
The respondent's grandmother died on 2 December 2010. The respondent's grandmother having succeeded to the tenancy on the death of her husband, section 37 of the 1985 Act precluded any further right of succession in favour of the respondent. Accordingly, the weekly tenancy vested in the estate of the respondent's grandmother. It was terminated on 3 October 2011 by notice to quit served on the Public Trustee on 5 September 2011.
The proceedings
On 17 November 2011 the Council issued a claim for possession on the ground that the respondent had never been a tenant or sub-tenant of the Property and had no right to statutory succession under the 1985 Act ss. 87 and 88.
By his Defence dated 8 February 2012 the respondent said that he opposed the claim for possession on the ground that the Court was required under Article 8 to consider whether an order for possession would be necessary in a democratic society and to consider the proportionality of making such an order. The nub of the Defence is in paragraphs 7 and 8 as follows:
"7. The First Defendant will maintain that under Article 8 of the European Convention on Human Rights he is entitled to the right of respect for his home and that there shall be no interference by a public authority with the exercise of this right except in accordance with the law and as is necessary in a democratic society in the interests of the economic well being of the country, ie, that any Court Order must be proportionate.
8. In all the circumstances of the case the First Defendant, having occupied and paid rent for his home for nearly four years since April 2008 and with his partner Samantha Downward [sic] and son Harley West for over since [sic] years since 28 th October 2009, it is not proportionate that he and his family should be evicted from their home."
The case was assigned to the multi-track.
A witness statement was made, on behalf of the Council, by Bill Sargent, a local housing manager, on 25 October 2011. It is not necessary to set out its contents, other than to say that he gave the history of the tenancy and stated that the respondent had no right to remain in the Property and the Council should be granted possession.
The respondent made a witness statement dated 8 March 2012. He set out the factual background that I have mentioned above. He also mentioned the following. He said that he had originally moved into the Property in 2007 when his grandmother was in ill health and his grandfather was in a care home. He moved in partly for somewhere to live but mainly as his grandmother's main carer. She suffered from severe mobility difficulties and was on mobility allowance. In due course he claimed a carer's allowance. He said that his partner originally lived nearby and frequently stayed in the Property overnight while his grandmother was alive, and that his son, who was living with him in the Property, would stay one or two nights a week with her at that time.
The respondent described the Property as an end-of-terrace house with a hallway, a living room and a large kitchen on the ground floor and three bedrooms and a toilet and bathroom on the first floor. The third bedroom is a very small room with an alcove in it with barely room for a bed and wardrobe. The Property is in need of renovation.
He described his partner, his son and himself as "an established family in the household", and he said that the Property is ideally suited to them as a family, particularly in view of his long association with the Property and it having been his sole residence for some four years since going there to look after his grandmother. He said he always regarded it as part of the family home.
He said that he had always paid the rent since his grandmother's death and been a good tenant. He described his work and that of his partner, which in both cases was part-time. He said that they were both of limited means and, if the Property was taken away from them, not only would it cause great disruption but it would also mean that they would be homeless and the three of them would need to be re-housed by the Council. He said they would not have the means to rent on the private market, and that taking away his tenancy would cause him detriment, which would not be commensurate with any possible advantage to the Council, whose council list would not thereby be reduced as the Council would have another family with priority on its housing list to re-house. He concluded by saying it would not be a reasonable course of action in all the circumstances to order possession of the Property.
A witness statement was also made by the respondent's partner, Samantha Dowward, on 8 March 2012. She said she had read the witness statement of the respondent and confirmed that its contents were true. She said that the Property was ideally suited to the needs of the appellant, herself and their son since it had two bedrooms and a very small box room in addition. She said that the appellant and she have family and work ties in the borough.
The trial took place before District Judge Hodges on 13 March 2012. By agreement the trial took place on the written evidence. The hearing lasted between one and two hours. On any footing, therefore, the assignment of the case to the multi-track is difficult to understand. The Council was represented by one of its officers. The respondent was represented by Mr Liam Sullivan, counsel.
The District Judge's judgment
The District Judge, as I have said, gave judgment for the respondent and dismissed the claim. He gave an immediate judgment. Having set out the facts and the ground of defence, the District Judge referred to Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2AC 104, and particularly paragraphs [60] – [64] in the judgment of the Supreme Court given by Lord Neuberger. He then said as follows:
"17. That sets out the test that I have to carry out and my assessment is as follows. The property the subject of the proceedings is the home of the defendant; it is also the home of his young son, Harley, born on the 28 th October 2009. It has been the defendant's home since about 2007 and Harley since his birth. It is also the home of his partner since about the time of Harley's birth and he has a strong local connection. I was told in submissions that the local authority would plan on re-housing the defendant, but that the current house exceeds his needs, being a three-bedroom property where he has only a requirement for two bedrooms, presumably one to be shared between himself and his partner and one for Harley. I am however told that the third bedroom is a small bedroom.
18. It does seem to me that he is over-housed to that extent. The local authority is a substantial provider of accommodation, having many properties, but I am told has a huge waiting list and I have no doubt that is the case. In these difficult times there are many people seeking accommodation and the local authority has an obligation to manage its housing stock. It has an obligation to put square pegs in square holes if I can put it that way, to put people in accommodation in accordance with their needs and I acknowledge all of that.
19. However, on balance and exercising the test for proportionality, it seems to me that to evict this small family and this young child from this property to re-house them in another property which is one bedroom smaller, against all the background of the connection would be disproportionate.
20. Lord Neuberger clearly...
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