North Hertfordshire District Council v Carthy & Anor [2003] EWCA Civ 20

Case No B2/2002/1396[2003] EWCA Civ 20
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORTHING COUNTY COURT
(Mr Recorder Morris)
Venue Royal Courts of JusticeDate Friday, 17 January 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE SIMON BROWN
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE SEDLEY
Between
NORTH HERTFORDSHIRE DISTRICT COUNCILAppellant-v-
Between
MALCOLM CARTHYRespondentMARIA ELENA CARTHYRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M RIFAT (instructed by North Hertfordshire District Council, Letchworth SG6 3JF) appeared for AppellantThe Respondents appeared on their own behalf
J U D G M E N T(As Approved by the Court)
Crown copyright©

LORD JUSTICE SEDLEY:

This

[1]appeal comes before the Court by permission of Chadwick LJ. The claimant below, the local housing authority, seeks to overset the refusal of Mr Recorder Morris, sitting at Worthing County Court on 17 and 18 June 2002, to make a possession order against the defendants, or at least to consider whether it was reasonable to do so.[2]The parties are both located in Hertfordshire. We are told that the reason why the case went to Worthing for trial was simply that there was no time available at Luton. The remission which is going to have to result today should without doubt be to a suitable court in Hertfordshire.[3]The possession order was sought pursuant to Ground 5 in Schedule 2 of the Housing Act 1985, which gives the court power to make an order where:
"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 .... the tenant ...."
By section 84(2)(a) of the Housing Act, such an order may not be made unless, in addition to the establishment of a prescribed ground, the court considers it reasonable to make the order.[4]The defendants are a married couple with two young children. Mr Carthy comes from the Letchworth area, where until 1998 he had been in business. Mrs Carthy is Filipina and the couple intended to settle in the Philippines, where they had brought a plot of land. But the money ran out before the house they were building on it was habitable and Mr Carthy alerted the claimant council to his intention to return with his family, and to the fact that when he did so they would be homeless. The council accepted them as having a priority need and on their return in mid-1999 put them in temporary accommodation. Then in July 2000 it gave them a secure tenancy of a house in Graveley. This was a housing list placement; but the family's eligibility for it was based in large part on their needs and the temporary nature of their existing accommodation. Before long, Mr Carthy had put in a right-to-buy application.[5]At the beginning of the year 2000, however, the family's financial position had improved. Mr Carthy had enough funds to complete the house in the Philippines and make it habitable, and this he did. He had been perfectly open with the council about the existence of the house; but he failed to tell them that it was habitable and available for him and his family. Section 175 of the Housing Act 1996 provides:
"(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere .... (3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy."
[6]It is the council's case that Mr Carthy's statement that he and his family had nowhere of their own to live was a continuing representation which became untrue, and that it was solely because of his failure to correct it that he and his wife were later that year given a secure tenancy.[7]When he applied for temporary accommodation, Mr Carthy signed a form which confirmed that he knew that "giving false information, withholding information, or failing to let the council know of any change in the facts given" rendered him liable to prosecution under section 214 of the Housing Act 1996. When he applied to go on the housing waiting list he signed a form which said:
"I understand that if my circumstances change and I become ineligible to be registered on the waiting list, eg move out of the district, my application will be cancelled."
[8]The recorder accepted that Mr Carthy was in breach of these obligations. Indeed it is arguable that even if he had not signed the material forms, he would have been guilty of making a false statement by not correcting a continuing representation. It may well be that not every relationship or situation carries such an obligation, but it is clear in my view that the information which is needed by a housing authority to process claims for temporary accommodation for the homeless, and equally that needed to decide whether to offer secure accommodation to people on the housing list, constitutes a continuing representation by an applicant. One has only to refer to section 196 of the Housing Act 1996 to see why this is so. If so, it brings with it a duty to tell the council of any change in circumstances which is capable of affecting the council's actions in response to the application.[9]The recorder accepted that there had been a failure to furnish this new and plainly material information. He did not, however, turn directly -- or in the event at all -- to whether it was reasonable for him to make a possession order. Instead he considered whether the false representation had induced the council to grant the secure tenancy. He concluded that it had not. He said:
"It almost offends against all logic to say that somebody should uproot themselves from this country and go to another country where they have not got the same social advantages as they have here, where they have no employment, no means of support and no business connection with that country."
In other words, as I understand it, in his judgment the new information not merely would not but could not have made any difference either to the continuance by the council of the provision of temporary accommodation or to its offer of permanent accommodation. He went on to hold that, had the council decided otherwise, the county court on review would have overruled it.[10]If it had been necessary to proceed further towards a judgment on this matter, it would have taken a very great deal indeed to persuade me that the recorder was right. But on legal advice, although they appear in person today, Mr and Mrs Carthy have conceded that the recorder was wrong. In my judgment they were extremely well-advised to do so. It has probably resulted in a very considerable saving to them of costs which they might otherwise have found themselves paying. Even Mr Carthy's own account of his circumstances made it plain that he and his wife had been perfectly prepared to settle in the Philippines as recently as 1999. His businesses in this country had failed, so that he had no commercial ties here. There is more which I will mention in a moment, but that is enough to indicate that it was by no means a foregone conclusion that the council, had it been told of the availability of the new house in the Philippines, would have decided that it did not affect things at all.[11]The council's case was that if they had known early in 2000, as they should have done, that the house in the Philippines was now habitable, they would have put the housing list application of Mr and Mrs Carthy on hold. They would also, they argue, have been relieved by section 193(6) of the 1996 Act of any continuing obligation to provide temporary accommodation. It would follow that, once this happened, the defendants' chances of obtaining secure accommodation from the housing list would have receded, arguably to vanishing point. In other words, it was in truth the false representation that the family were still without available accommodation which induced the council in mid-2000 to offer them a secure tenancy in lieu of their temporary accommodation.[12]So what remained, which was all that ought ever to have been in issue, was whether it was reasonable to make a possession order. If the recorder had been right in his appraisal of the new facts, it may well be that he would not have considered it reasonable to make a possession order. If, however, the council is right in its view of the facts, the money, more than £50,000, with which Mr and Mrs Carthy were able substantially to complete the building of their house in the Philippines had come from the sale of a number of vehicles owned by them; but, rather than use it to house themselves here, they had told the council nothing of it, accepted the secure tenancy in lieu of their temporary accommodation, almost at once applied to buy the council house and (at least according to information received by the council) rented out the house in the Philippines and offered it for sale on the internet. Whether or not these were the facts -- for they remain to be decided -- the reasonableness of a possession order was wide open and had to be judicially determined.[13]I do not think it is for this court to take this decision, especially since the Human Rights Act 1998 in cases like the present requires a very careful appraisal of the proportionality of an eviction, whether it is to be peremptory or conditional. So I for my part would allow this appeal, indeed without resistance, and remit the case to a different judge to decide whether, in the legal situation to which this judgment is directed, it is reasonable to make a possession order.[14]The recorder below, for some reason that is not clear to me, made no order for costs, even though in his judgment the defendants had won. Mr Rifat, who has presented the council's case today with tact and realism, has not sought to disturb that order. Equally, he does not seek his costs on this appeal. That makes it unnecessary for me to trawl through the correspondence conducted since last October without prejudice save as to costs, by which the defendants' then solicitors offered to concede this appeal but which did not succeed in preventing the matter coming before us today. I would therefore leave the costs order below as it stands, and make no order for costs in this court in allowing the appeal.

LORD JUSTICE SIMON BROWN: I agree for the reasons given by my Lord that the appeal necessarily succeeds and that the consequences are as he indicates. The matter goes for hearing at a fresh trial on the issue of reasonableness, there being no order for costs here or below.

ORDER

Appeal allowed with no order for costs here or below. The issue of reasonableness is remitted to be heard by a different court situated within Hertfordshire. (Order does not form part of the approved judgment)

Cited in 1 later judgment