Circle 33 Housing Trust Ltd. v Ellis [2005] EWCA Civ 1233

Case No B2/2005/1746

[2005] EWCA Civ 1233

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

QUEEN'S BENCH DIVISION

(MR JUSTICE HOLLAND)

Venue Royal Courts of Justice

Date Friday, 23rd September 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE WARD

LORD JUSTICE CHADWICK

LORD JUSTICE MOORE-BICK

Between

CIRCLE 33 HOUSING TRUST LIMITEDApplicant

-v-

Between

DESMOND ELLISRespondent

(Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR J MANNING (instructed by DEVONSHIRES SOLICITORS) appeared for Applicant

MR S REEDER (instructed by LEWIS NEDAS & CO) appeared for Respondent

J U D G M E N T

Friday, 23rd September 2005

LORD JUSTICE CHADWICK:

[1]This is an adjourned application for permission to appeal from an order made by Holland J on 28th July 2005 in possession proceedings brought by Circle 33 Housing Trust Limited, as landlord of property known as Flat 8, Christopher Court, 80/82 Leicester Road, New Barnet, against Mr Desmond Ellis, the former tenant of that flat. The application is listed with appeal to follow if permission is granted. In circumstances that I shall explain, we have heard the appeal.

[2]The tenancy of Flat 8, Christopher Court, was an assured weekly tenancy under an agreement made between the landlord, Circle 33, and Mr Ellis on 18th August 2003. The initial rent payable under the tenancy was £63.35 a week, but that rent was later increased. By November 2003 the tenant was in arrears with his rent by the relatively small sum of £200 or thereabouts and was in receipt of housing benefit from the London Borough of Barnet. Payments of housing benefit were made by the housing department of the local authority direct to the landlord.

[3]At the end of May 2004 those payments ceased. The explanation later given to the landlord, in a letter from the housing department dated 16th September 2004, was this:

"Benefit has been cancelled [from 31st May 2004] for the following reason: The claimant is no longer entitled to Jobseeker's Allowance/Income Support."

[4]The effect of the cessation of housing benefit payments was that arrears of rent built up thereafter at the rate of £300 per month or thereabouts. By the time that these proceedings were commenced by the issue of a claim form on 20th July 2004 the arrears amounted to £912.48. The claim for possession was put on the basis of non-payment of rent - that is to say, it was put under grounds 10 and 11 of schedule 2 to the Housing Act 1988.

[5]The proceedings came before District Judge Gerlis, sitting in the Barnet County Court, on 7th October 2004. Mr Ellis did not attend. There is no suggestion that he was not served with the proceedings or that he did not know of the hearing. The judge was satisfied that his rent was in arrears. In those circumstances the judge made the possession order sought. He ordered that possession be given up by Mr Ellis to his landlord on 21st October 2004 and that Mr Ellis pay the sum of £1,449.80. In respect of rent arrears, a further sum at the rate of £10.97 per day in respect of his continuing occupation of the flat until possession was given up, and the landlord's costs of £130. A total, therefore, of £1,579.80 was to be paid on or before 21st October 2004.

[6]Section 9(2) of the Housing Act 1988 provides that on making an order for a possession of a dwelling house let on an assured tenancy, or at any time before the execution of such an order, the court may stay or suspend the execution of the order or postpone the date for possession for such period or periods as the court thinks fit. In particular, the court may suspend execution on conditions as to payment of arrears and for continuing occupation - section 9(3). But, save that possession was postponed for 14 days, the court did not exercise its powers under section 9(2) or 9(3). The reason, no doubt, is that Mr Ellis did not attend the hearing; he offered no explanation why housing benefit had ceased; he did not suggest that housing benefit would be resumed in the near future or at all; and he made no proposals for payment of the arrears or for his continuing occupation. So far as the landlord was aware, the position was as set out in the letter of 16th September 2004 from the housing department, to which I have already referred.

[7]No payment was received by 21st October 2004. So the order for possession took effect on that day according to its terms. But, on 25th October 2004, the Barnet housing department paid to the landlord the sum of £1,529.36 for the credit of Mr Ellis' rent account. That sum appears to have been paid by way of housing benefit in respect of the months since the end of May 2004. Nevertheless, on the following day, 26th October 2004, the housing department wrote to Mr Ellis in these terms:

"I have recently been advised from The Department of Works and Pensions (DWP) that you were not entitled to income support for the period from 8th November 2004 (sic) to 6th January 2004. Due to this break in your income support I have had to cancel your claim back to 9th November 2003. "

Unfortunately this has created an overpayment for the period 10th November 2003 - 17th October 2004. I may be able to reduce or clear this but to do so I require evidence of your income for the period 8th November 2003 - 6th January 2004. "I have been informed by DWP that your Income Support has been awarded from 7th January 2004 but I am unable to amend your benefit for this period until I can establish your income for the break. "If you would like to continue to receive Housing Benefit please complete and return the attached application. "Please provide the above information within one calendar month from the date of this letter to avoid loss of benefit."

[8]There is nothing to suggest that a copy of that letter was sent to the landlord. But on the following day, 27th October 2004, the housing department sent three letters to the landlord. The first two letters indicated that housing benefit had been awarded at nil pounds a week for the periods 3rd November 2003 to 4th April 2004 and 5th April 2004 to 30th May 2004. The third of the letters of 27th October 2004 informed the landlord that the housing benefit paid to the tenant had been revised from 3rd November 2003 and that as a result it was assessed that an amount overpaid, in the sum of £3,854.06, had been made in respect of the period 3rd November 2003 to 17th October 2004. That letter of 27th October was followed by a letter of 28th October 2004 informing the landlord that Mr Ellis' claim for housing benefit had been assessed resulting in an award for a single week, 3rd November 2003 to 9th November 2003, in the sum of £77.49.

[9]It is reasonable to assume that it was the failure of Mr Ellis to respond to the letter which the housing department had sent to him on 26th October 2004 - asking for the completion and return of the application attached to that letter - which led to the withholding of further payments of housing benefit after that date. The result was that, while Mr Ellis remained in possession of the property after 21st October 2004, arrears continued to build up under the order of 7th October 2004.

[10]On 8th November 2004 the landlord wrote to Mr Ellis two letters. One was in these terms:

"Re: Housing Benefits Overpayment "

The Council have written to us saying that they have paid too much Housing Benefits for you. They should have written to you as well. "They have requested a refund of £3,854.06 for the period 03/11/03 - 17/10/03 (sic). "If you believe that these payments should not be refunded, you should contact me on [telephone number given] by 15th November 2004. If I do not hear from you after this date, Circle Thirty Three will repay this amount to the Benefits Office. The amount will be debited to your account. "Please note that if your account goes into debit or the debit increases as a result of this repayment, we will contact you to recover the debt. The Trust may consider taking legal action but this can be avoided if you make and keep a formal agreement to repay and clear the debt." The other letter also asked for Mr Ellis to make contact with the landlord. Mr Ellis did not respond to either of those letters.

[11]On the same day, 8th November 2004, the landlord wrote to the housing department. There is no copy of that letter in the bundle which has been put before us; but it is referred to in the reply from the housing department dated 20th December 2004:

"Thank you for your letter dated 8th November 2004 regarding the above named tenant. "

The letter dated 27th October 2004 issued to you (a similar letter was issued to the tenant) only notifies you that an overpayment has arisen but is not a request for repayment from you. "Consideration is being given to the most suitable method of recovery in this case and from whom recovery is to be sought. "If recovery is to be sought from Circle 33 Housing Trust, an Overpayment Account will be issued to you in the near future giving full details. The issue of an account is the normal way in which a request for repayment of an overpayment is made." No request for repayment was received by the landlord and so no debit of £3,854 was ever made to that account. But, as I said, arrears continued to build up under the order of 7th October 2004.

[12]On 17th January 2005 the landlord wrote again to Mr Ellis:

"Re - Pre Eviction Visit I would like to visit you to discuss the immediate possession order granted against you on 07/10/04. Appointment: Friday, 21st January 2005 at 3.30pm. Please call me on the number below if date of appointment is not convenient for you or if you require further information."

The evidence before the County Court judge was that the landlord's representative did call on 21st January 2005 in accordance with that letter; but Mr Ellis was not at the property or was not available. His Honour Judge Ansell made the following finding on that point:

"I am satisfied also that on at least two occasions representatives from the landlords tried to go and see him to discuss that arrears position. He claims that either he was in bed or the front door was not working, but again I am not satisfied with that excuse, and I believe that he was deliberately avoiding contact with Circle 33."

[13]It was against that background that, on 16th February 2005, the landlord requested the Barnet County Court to issue a warrant of possession in execution of the possession order which had been made on 7th October 2004. At that date the balance due from Mr Ellis to the landlord was £1,508.88. That balance took no account of the alleged overpayment; because no repayment had been made. It represented arrears accrued since October 2004.

[14]The warrant of possession was issued pursuant to that request. But, as is usual in the County Court, it was issued without notice to Mr Ellis. Nevertheless, on 25th February 2005, the bailiff gave notice to Mr Ellis that he proposed to execute the warrant on 9th March 2005. There is no suggestion that Mr Ellis did not receive that notice.

[15]As I have already explained, section 9(2) of the Housing Act 1988 enables the court to suspend execution of an order for possession at any time before the order is executed. So it was open to Mr Ellis to make an application for suspension of the warrant during the period between 25th February 2005 - or the date he actually received notice from the bailiff that the warrant had been issued - and actual execution on 9th March 2005. But he did not do so.

[16]In Jephson Homes Housing Association v Moisejevs

[2001] 2 All ER 901

, Simon Brown LJ observed, at paragraph 40 of his judgment, that it would be highly beneficial if the standard court form for suspended possession orders referred expressly not only (as it does) to the landlord's power on breach to enforce the order by eviction, but also to the tenant's right to apply to the court for relief. The observation could well be made in relation to the standard notification of impending eviction sent by the bailiff in these cases. But the standard form does not contain that information; and the Barnet County Court cannot be criticised for using the standard form. No doubt, in due course, consideration will be given by the rule-making body to the implementation of the suggestion made by Simon Brown LJ - which I respectfully endorse - but that time has not yet come. It is open to question in the present case whether, even if the form had contained notice of the right to apply under section 9 of the 1988 Act, Mr Ellis would have made an application. This is, after all, a case in which he did not think it worth appearing at the hearing when the order for possession was made.

[17]The warrant was executed on 9th March 2005 in circumstances described by Holland J at paragraph 9 of his judgment:

"On the 9th March 2005 with the arrears at £1,739.16 the Bailiff evicted the Appellant pursuant to the possession order. The Appellant was angrily uncooperative, racially abusive and difficult. However it is common ground that he received an intimation from the representative of the Respondents in attendance."

In that context, of course, the appellant is Mr Ellis and the respondent is the landlord. Holland J goes on to set out what Mr Ellis was told by the landlord's representative:

"'I explained to Mr Ellis that if he could go to the Benefit Office now to sort out [the] claim and provide Circle Thirty Three with written confirmation from the Benefit Office that his rent up to 9th March 2005 had been paid, the Management could consider giving him back the property. I also explained that he would need to prove that claim had not been cancelled from 31/05/04 and that there were no outstanding overpayments on his rent account. I told Mr Ellis that nevertheless, the eviction would still have to go ahead that day because his rent account still showed arrears of £1,739.16 and I had not received any information from the Benefit Office saying otherwise.'"

[18]Thereafter, following the eviction, the court had no power to act under section 9(2) of the Housing Act 1988. Nevertheless, on 16th March 2005, Mr Ellis made an application to the Barnet County Court for a stay or re-entry to the property. He sought an urgent hearing under CPR Part 25 Rule 4(2). The basis of the application, as set out in the application notice, was this:

"My rent was not being paid due to a mix up between Housing Benefit and Income Support. I made several calls and produced information they asked for and thought that the rent backdated was paid so I thought that the problem was sorted out. I called Circle 33 and explained but I was told the call was never logged."

The County Court Judge rejected the contention that there had been a call to the landlord.

[19]The County Court responded promptly. Directions were given on 22nd March 2005, and the matter was adjourned for hearing in court on 24th March. It came before His Honour Judge Ansell. That judge had the benefit of evidence from the bailiff and from an officer of the landlords.

[20]Between the issue of the application notice on 16th March and the hearing before Judge Ansell on 24th March 2005, there had been further developments to which I should refer. On 17th March 2005 the landlord telephoned the housing department. The response was a letter of that date referring to the telephone call and providing details of the housing benefits to which Mr Ellis might be entitled:

"The overpayment of 3776.57 is still outstanding from Mr Ellis. "

There is no current Housing Benefit claim or request for backdated benefit." That was followed by a letter of 21st March 2005 from the housing department to the landlord:

"Further to our earlier telephone conversation today I can confirm that Mr Ellis last telephoned the authority on 28th February 2005 regarding the progress of his claim. "

Mr Ellis was informed he would need to complete a Housing Benefit claim form, as his claim was cancelled. Mr Ellis hung up. "Mr Ellis visited the authority on 10th March 2005 regarding his eviction. A Senior Officer, Tracy Wallis, saw him at his request. The Senior Officer explained to Mr Ellis why his claim was cancelled. Mr Ellis made no request for backdated Housing Benefit."

[21]That information, given to the landlord on 21st March, is difficult to reconcile with a letter of 22nd March sent by the Senior Housing Benefit Officer, Tracy Wallis, to Mr Ellis. In that letter of 22nd March Mr Ellis was told that his claim had been reassessed based on the information that he had supplied on 10th March and that he was entitled to Housing Benefit from 8th September 2003 to 4th April 2004 at the rate of £77.49 per week and from 5th April 2004 to 8th March 2005 at the rate of £76.76 per week. He was told that the credit raised from reassessing the claim had been passed to the overpayments team to repay a previous overpayment. Any remaining credit would be paid to Circle 33.

[22]The information contained in the letter of 22nd March 2005 was passed to the landlord in a letter from the housing department dated 23rd March 2005. That letter informed the landlord that there was now a credit arising on reassessment of £5,311.77. Part of that had been used to pay back the previous overpayment, and that left a credit of £1,535.20 which was to be forwarded to the landlord. The senior Housing Benefit officer went on in these terms:

"Mr Ellis' claim is currently cancelled as he does not have a rent liability at this address since he was evicted on 9th March 2005. If he is granted re-entry to the property, please confirm this in writing. You will also need to confirm the date his rent liability started from and the amount of rent due."

The effect has not been to clear Mr Ellis' rent account completely. There remains a small residue of indebtedness of some £203 odd. But it is not suggested that anything turns on that.

[23]So it was that, when the matter came before Judge Ansell on 24th March 2005, the bulk of the rent arrears had been cleared and it was reasonably plain that future Housing Benefit would have been paid if it were not for the fact that eviction had taken place.

[24]The jurisdiction invoked by the application of 16th March 2005 was recognised in Leicester City Council vAldwinckle

[1991] 24 HLR 40

; and in the series of appeals to this court following that decision which are reviewed by Simon Brown LJ in Jephson Homes v Moisejevs, to which I have already referred. As Simon Brown LJ observed at paragraph 16 of his judgment in Jephson Homes, the effect of the Aldwinckle case was helpfully summarised by Nourse LJ in Hammersmith and Fulham London BC v Hill

[1994] 2 EGLR 51

at 52 to 53 in these terms:

"... after a warrant for possession has been executed in this class of case it can only be suspended or set aside if either: (1) the order on which it is issued is itself set aside; (2) the warrant has been obtained by fraud; or (3) there has been an abuse of process or oppression in its execution."

[25]Simon Brown LJ referred, also, to the observations of Brooke LJ in Camden London Borough Council v Akanni

[1997] 29 HLR 845

at 849. Brooke LJ had said this:

"The context in which the court is willing in a rare, but appropriate, case to intervene to nullify the execution of a warrant for possession goes back to the principles set out in the judgment of Bowen LJ in this court in McHenry v Lewis ((1883) 22 Ch D 397 at 408). He said: 'I would much rather rest on the general principle that the Court can and will interfere whenever there is a vexation and oppression to prevent the administration of justice being perverted for an unjust end. I would rather do that than attempt to define what vexation and oppression mean; they must vary with the circumstances of each case.'"

In Barking and Dagenham London BC v Saint

[1998] 31 HLR 620

at 626, Peter Gibson LJ, described those observations as 'plainly right' and went on to say this:

"The categories of oppression are not closed and the court must have the power to intervene in the interests of justice in an appropriate case to correct the position where its procedures have been used unfairly to the oppression of a party."

[26]The basis of the jurisdiction, as it seems to me, is not in doubt. In this important and sensitive field of social housing, Parliament has prescribed a regime which recognises that a tenant should not be evicted from his home if some alternative solution - reasonable in the interests of both the landlord and the tenant - can be found. It has provided the opportunity to seek such an alternative solution through the courts right up to the point of eviction. The court's role does not cease when it makes a possession order. The jurisdiction to stay or suspend the order, or to stay or suspend execution of the warrant, is exercisable at any time before execution of the order. The provisions of section 9(2) of the Housing Act 1988 mirror those earlier enacted in relation to private lettings under the Housing Act 1980 and subsequently embodied in section 85(2) of the Housing Act 1985.

[27]But Parliament has recognised that there must come a time when the landlord is able to relet the property in the knowledge that a former tenant can no longer return to the court with proposals for a solution which enables him to resume occupation. The scheme in the Housing Acts, provides that that time comes when eviction has taken place. Thereafter the statutory scheme provides that the landlord can relet in the knowledge that the scheme for protecting the former tenant has run its course.

[28]The ability to relet to a new tenant who can be assured of security - free from the claims of a former tenant - is of obvious importance; particularly in the context of social housing. As the many housing and homelessness cases which come before this court demonstrate, the demand for social housing far exceeds the supply. It is plainly in the public interest that property available to meet that demand should not remain empty after the former tenant has been evicted for fear that he will seek reinstatement. There is a need for finality. There is a need for the local authority and other social housing landlords to be free to use their housing stock for the benefit of others.

[29]The court's response must be to give effect to the wishes of Parliament as expressed in the Housing Acts. It is not open to the court to reinstate a tenant merely because of its sympathy towards his plight; its recognition that he would have been well-advised to make an application under section 85(2) of the Housing Act 1985 - or section 9(2) of the Housing Act 1988, as the case may be, before eviction; or its view that, if such application had been made in time, it would have been likely - indeed very likely - to have succeeded. The point is made by Simon Brown LJ in paragraph 36 of his judgment in Jephson Homes. I respectfully endorse it. The jurisdiction to intervene after eviction must be based on principle. The principle is that identified by Brooke LJ in Akanni. The court is rightly concerned to ensure that the safeguards which Parliament has put in place for the protection of tenants are not circumvented by misuse of its process. But it is no part of the court's function to introduce further safeguards for the protection of tenants which Parliament has not thought it necessary or appropriate to enact.

[30]It was these considerations, I think, which led Simon Brown LJ to conclude, at paragraph 37 of his judgment in Jephson Homes, after review of the authorities, that:

"... in my judgment there cannot be oppression without the unfair use of court procedures; and something more than the mere use of the eviction process (some action on someone's part which is open to criticism) will be required before the court's procedures can be said to have been unfairly used."

[31]His Honour Judge Ansell in the County Court approached the application before him on the basis that Mr Ellis needed to satisfy him that there had been an abuse of process or oppression in connection with obtaining or executing the warrant of possession. He said this at page 2 of the transcript of his judgment between letters D and G:

"However, the test for me to consider, because Mr Ellis is now seeking to have the warrant set aside, is whether there has been an abuse of process or oppression. That emerges from the recent authority of Jephson Homes Housing Associationv Moisejevs [2001] 2 All ER 901. The notes to the Green Book set out the test: it is either a warrant obtained by fraud or there has been an abuse of process or oppression in its execution. A warrant obtained without that fault cannot be properly set aside. There is a note that suggests the entitlement of a former tenant to housing benefit may be a relevant consideration on an application for the suspension of a warrant for possession. But of course that has to be brought to the court's attention prior to the warrant being executed. Once a warrant for possession has been executed he can only succeed if there has been some oppression."

[32]The County Court judge reviewed the evidence which, as I have said, included the oral evidence of those who had attended the eviction on 9th March. He acquitted the landlord of fraud or oppression. In particular he acquitted the landlord of the charge which Mr Ellis was making against it: that it had some hidden agenda to remove him from his property. And, he said this, at page 4H of the transcript:

"The issue remains was there any fraud or oppression up to 9th March, and I am not satisfied at all that there was any fraud or oppression practised. The failure, as it seems to me, was the failure of Mr Ellis to get to grips with the problem and sort out his housing benefit and/or income support. I am afraid he failed to do that in time. He had ample warning."

So the judge rejected the application for the warrant to be set aside and for possession to be reinstated.

[33]Mr Ellis appealed. The appeal came before Holland J on 19th July 2005. In his judgment, handed down on 28th July, he reviewed the correspondence and the facts with obvious care. He criticised Barnet's housing department for what he saw as its inefficiency. He expressed the view that it was beyond argument that Mr Ellis had been entitled to and should have had housing benefit at all material times from 10th November 2003. After referring to the receipt of £1,529 from the housing department on 25th October 2004, he said this, at paragraph 15 of his judgment:

"What then became immediately known to the Respondents (probably well before the position impacted upon the Appellant) was that the Housing Department was once again stopping benefit payments. Should not the Respondents have sought some explanation from the Department before initiating enforcement: 'why have you not paid since 25th October? Are you once again going to pay a sum to clear arrears?' Arguably it was not [for] the Appellant to explain the situation but the Housing Department."

[34]The judge reminded himself of three decisions of this court. Two, Akanni and Jephson Homes, I have already mentioned. The third was the decision in Southwark LBC v Sarfo

[1999] 32 HLR 602

, in which execution of the warrant was set aside by Roch LJ and Wilson J on the grounds of oppression. But, as Simon Brown LJ pointed out in Jephson Homes at paragraph 35, Sarfo was a case in which the local authority landlord was itself at fault in the administration and processing of housing benefit claims. Further, the local authority landlord had failed to take any steps to warn the tenant that she was at risk of being evicted while those benefit claims were pending in its housing department. It was a case where the court took the view, in effect, that the local authority landlord was seeking to take advantage of its own wrong in using the processes of the court for eviction.

[35]In expressing his conclusions, at paragraph 17 of his judgment, Holland J answered the question which he had posed at paragraph 15 in the affirmative. He said this:

"I turn to the application of this guidance to the execution of this warrant. It is beyond dispute that it was unjust. Leave aside the presently irrelevant residual indebtedness of £200 (which may reflect an apparent failure on the part of the Department to pay housing benefit for the period 8th September - 10th November 2003), there should have been no arrears of rent as at eviction - and as of now there are none such. The only point that can be raised by the Respondents is that the essential fault lay with the Barnet Housing Department - how could their own actions be open to criticism? I do not regard this response as adequate. The Respondents looked to the Housing Department to pay the rent by way of benefits. When such unaccountably ceased after October 2004 there was no attempt by them to contact the Department to find out why - and whether, as before, the arrears would be made up. To compound this failure it was the Appellant who was advised upon eviction to make the necessary enquiries - and when these proved supportive to him they were ignored. I think that this is that rare case in which the execution of a warrant was 'oppressive', that is, it amounted to an unjust exercise of the power granted by the warrant."

He went on, at paragraph 18 of his judgment:

"It necessarily follows that with all respect to Judge Ansell, I think that he was 'wrong' so that I should allow this appeal, quash the eviction and order that re-entry be permitted. I emphasise that the matter has been better argued before me. Where, with respect, I do think that he was in particular error was in holding that the Respondents had an option whether to reinstate 'if benefit was cleared up'. Given that the clearing up (which they arguably should have done) showed that there was no basis for eviction, what just alternative option was open to them?"

[36]It is suggested by the appellant that those passages show that Holland J was taking into account events which had occurred after the eviction on 9th March 2005. Counsel for Mr Ellis, the respondent in this Court, has made it clear that he does not rely on events which took place after 9th March save as evidence of what would or might have happened if enquiries had been made earlier - that is to say, before 9th March. In other words, it is accepted, I think, that conduct cannot be oppressive in this context if it is conduct which took place after the eviction.

[37]But, if the question is posed - "What would have happened if the enquiries had been made before 9th March 2005?" - the only credible answer is that the landlord would have got the response that it did in fact get in the letters of 17th and 21st March 2005. The landlord would have been told by the housing department - as was the case - that there was no claim for backdated housing benefit.

[38]The landlord sought permission to appeal. The application came before Jacob LJ for consideration on the papers. He adjourned the application to be heard on notice with appeal to follow. He noted, as the reasons endorsed on his order dated 11th August 2005, that:

"The case may involve a question of important principle or practice but I am not satisfied this is so and argument on both sides is called for."

[39]When the application was opened before us we indicated that we were minded to give permission to appeal and hear the substantive appeal. At that stage I, at least, was of the provisional view that there might be some important point of principle to be resolved. I identified that point in these terms: whether the county court could have intervened on grounds of oppression in circumstances where the conduct said to be oppressive had neither led the tenant to take any step in relation to the eviction which he would not otherwise have taken nor to refrain from taking any step which he would have taken?

[40]As argument proceeded on the appeal I revised my provisional view. I no longer think that this appeal does raise a point of principle which needs to be resolved. The principle, as it seems to me, is clear. It is set out by Brooke LJ in the passage in his judgment in Akanni which I have cited - a passage endorsed by Peter Gibson LJ in Saint, and adopted by Simon Brown LJ in Jephson Homes. What is required before the court can intervene following eviction is that the court's process has been misused, so that the tenant has been evicted without having been afforded the protection which Parliament intended that he should have.

[41]But although I have reached the conclusion, after hearing full argument, that the case raises no point of principle which has not already been decided in this court over the past ten years, I am quite satisfied that permission to appeal was properly given on the alternative ground: that there was some other compelling reason why a second appeal should be entertained in this court. The compelling reason for this court to intervene, as it seems to me, is that the decision of Holland J was plainly wrong. Justice requires that his decision be reversed. It is important that judges who have to deal with these matters in the County Courts on a regular basis should know that it is the view of this court that Holland J was wrong. This court should take the opportunity to reaffirm the principle in the terms that I have indicated.

[42]The foundation for the argument in this court - and which underlies Holland J's approach - is found in the provisions in the Housing Corporation Regulatory Circular 07/04 issued in July 2004. The circular is issued as Statutory Management Housing Guidance under section 36 of the Housing Act 1996. It indicates the Housing Corporation's general expectation that housing associations will not repossess residential property save as a last resort. That is emphasised in paragraph 3.1.1, headed "Housing Benefit". The paragraph is in these terms:

"Possession proceedings for rent arrears should not be started against a tenant who can demonstrate that they have (1) a reasonable expectation of eligibility for housing benefit; (2) provided the local authority with all the evidence required to process a housing benefit claim; (3) paid required personal contributions towards the charges. Associations should make every effort to establish effective ongoing liaison with housing benefit departments and to make direct contact with them before taking enforcement action. A certificate should be obtained, if possible, to confirm that there are no outstanding benefit enquiries, according to Department of Work and Pensions good practice guidance."

That expectation is reinforced by a note in the Housing Association Charter, by which tenants are informed that:

"Your housing association must only take action to evict you from your home as a last resort, when there is no reasonable alternative. You are entitled to know what your housing association's policies are and how eviction is dealt with."

[43]And, as Holland J pointed out in his judgment, the substance of paragraph 3.1.1 of the Regulatory Circular was made an express term of the tenancy agreement. The tenancy agreement provided that the landlord was subject to the management guidance issued by the housing corporation.

[44]It is on the basis of the Regulatory Circular that appeal is resisted on two grounds. First, it is said that the landlord should have done more than it did. Secondly, I think, it is submitted that, if the landlord had done more than it did, the steps that it should have taken would have led to a decision not to request the issue of a warrant of possession in February 2005, or not to proceed to enforce that warrant.

[45]To my mind neither of those grounds can be made out. It seems to me that, when one reads the correspondence as a whole, the only fair conclusion is that this landlord did do what it was required to do. It sought to establish an ongoing liaison with the Housing Benefit Department. It received a number of letters from the Barnet Housing Department; each of which, as I have indicated, made it clear that housing benefit was not being paid because the housing department took the view that there had been a break in income support and that it needed to reassess the level of housing benefit.

[46]That view persisted until after 9th March 2005, as appeared from the letters of 17th and 21st March 2005. The view changed only as a result of representations made by Mr Ellis to the housing department after the eviction - in particular, it seems, as a result of his visit to the housing department on or about 10th March 2005.

[47]The inference that I draw from that correspondence is that, as between the landlord and the Housing Benefit Department, there was no prospect that housing benefit would be restored without the active participation of the tenant.

[48]It is in that context that the failure of the tenant to offer any cooperation with the landlord at all becomes determinative. If the landlord is required to ascertain the tenant's entitlement to Housing Benefit, and if the landlord can only sensibly ascertain that with the cooperation of the tenant - who has been asked to supply the information that the housing department requires - then the tenant's failure to cooperate makes it impossible, as it seems to me, to say that the landlord is doing less than it is required to do under the guidance.

[49]It was suggested by Mr Reeder in argument that the landlord was required to go behind the housing department's response and seek directly from the Department of Work and Pensions a certificate as to the tenant's entitlement (or otherwise) to income support. But there is no material before this court which could lead to the conclusion that an approach to the Department of Work and Pensions would yield information about a claimant's benefits without the consent and cooperation of the claimant; and for my part, I would be surprised if the Department of Work and Pensions thought that it was free to discuss a claimant's affairs with a third party without his consent.

[50]The problem in this case was that the housing association could do no more than it did do without the tenant's cooperation and the tenant refused to cooperate. The most obvious example of that is his refusal to attend a meeting at his own house on 21st January 2005.

[51]The second question is what would have happened if the landlord had made more enquiries of the housing department than it did make? The answer to that, as it seems to me, is that enquiries by the landlord would not have led the housing department to confirm that Housing Benefit was payable. The housing department was unwilling to confirm that housing benefit was payable until after the tenant had given to the housing department the information which the housing department required. Absent that information, the housing department would have maintained their stance that housing benefit was not payable - as they did in their letters of 17th and 21st March 2005.

[52]It follows that I have reached the conclusion that Holland J was wrong to take the view that the landlord was required, in this case, to do more than it did do. He was wrong, also, in failing to address, at all, the question what would have happened if the landlord had done what he thought it should have done. There is no causative link between the failure identified by the judge and the execution of the warrant of possession on 9th March 2005.

[53]For those reasons this is, in my view, an application for permission to appeal which should be allowed. I would allow the application and allow the appeal.

LORD JUSTICE MOORE-BICK: I agree. There is nothing I can usefully add.

LORD JUSTICE WARD: I also agree. The appeal will be allowed, the order of Holland J of 28th July will be set aside, and the application of the respondent for an order that he be permitted re-entry of Flat 8, Christopher Court, 80 Leicester Road, Barnet, will be dismissed.

ORDER

appeal allowed; order of Holland J of 28th July to be set aside; application of respondent for re-entry dismissed; appellant housing authority to have costs here and below, adjourning to costs judge question of liability of the respondent to pay those costs and if so in what amount, and question of liability of Legal Services Commission to pay any part of those costs; no order other than the whole of the costs.