Birmingham City Council v Beech & Anor [2013] EWHC 518 (QB)

[2013] EWHC 518 (QB)

Case No 1BM72724

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15 March 2013

Before

MR JUSTICE KEITH

Between

Birmingham City CouncilClaimant

(1) Janet Beech (sued as Janet Howell)Defendants

(2) Michael BeechDefendant

Mr Jonathan Manning (instructed by Birmingham Legal Services) for Claimant

Mr Stephen Cottle (instructed by Eric Bowes & Co) for Defendants

Hearing Hearing dates: 28-30 November 2012

Further written submissions and witness statements: 10 and 14 December 2012, 25 January 2013, 15, 22 and 27 February 2013 and 1 March 2013

Judgment

Introduction

[1]This case started life as an unremarkable claim for possession of rented property. The tenant was alleged to have given up her tenancy, and the local housing authority sought possession of the property against other occupants of the property who had not moved out. But one of them was the tenant’s daughter. She claimed that her mother’s ending of the tenancy was invalid. In any event, her mother died soon afterwards, and she wanted to argue that if the statutory scheme for succeeding to public sector tenancies on the death of the tenant prevented her from succeeding to the tenancy, the part of the scheme which prevented that was incompatible with her rights under Arts. 8 and 14 of the European Convention on Human Rights. In addition, she wanted to argue that the local housing authority should previously have allowed her name to be added to her mother’s tenancy, failing which it should subsequently have granted her a tenancy of the property. Its refusal to do either of these things was flawed. Finally, she wanted to argue that the making of an order for possession would be a disproportionate interference with her right to respect for her home under Art. 8 and an infringement of her right under Art. 14 to enjoy her right to respect for her home without discrimination. It was these defences which caused the claim to be transferred from Birmingham County Court to the High Court.

[2]The action was heard at Birmingham Civil Justice Centre on 28-30 November 2012. The three days which had been set aside for it proved insufficient. There was only enough time for the evidence to be called, and the parties wanted time to put their closing submissions into writing. In the circumstances, it was agreed that any further hearing could be dispensed with, unless I were to think that one was necessary. It has not proved to be necessary, though questions I had were addressed subsequently in further written representations. All references in this judgment to sections of an Act are references to sections of the Housing Act 1985 (“the 1985 Act”) unless otherwise stated.

The relevant facts

[3]Mrs Warren’s tenancy. The evidence explored the history of the tenancy in considerable detail, but except for the circumstances in which the tenant gave up her tenancy, the core facts are not really in dispute. The property which the case is all about is a semi-detached house with three bedrooms at 31 Tilshead Close, Druids Heath, Birmingham B14 5LT (“the property”). The claimant, Birmingham City Council (“the Council”), is the freehold owner of it. The Council let the property on a joint tenancy to Norman Warren and his wife Rita in 1967. It was their only or principal home. Accordingly, since the coming into force of the Housing Act 1980, the tenancy became a secure tenancy, and is now governed by the Housing Act 1985. The 1985 Act has recently been amended by the Localism Act 2011, but the relevant provisions for present purposes are those in force before then.

[4]Mr Warren died on 25 June 1994. The Council claims that on his death, Mrs Warren became the sole tenant of the property by operation of the common law doctrine of survivorship. There is a dispute about that, but it is unnecessary for that to be resolved because it is common ground that Mrs Warren succeeded to the tenancy on his death for the purposes of the 1985 Act, since section 88(1)(b) provided that a tenant succeeds to a tenancy if “he was a joint tenant and has become the sole tenant”. For some reason, the fact that Mrs Warren had become the sole tenant had not resulted in the Council’s records being updated, and the file relating to the tenancy was not corrected until September 2009, but that did not affect the legal position – which was that no-one could succeed to the tenancy when Mrs Warren died, because section 87 provided that the right to succeed to a tenancy on the death of the tenant did not apply when the tenant (in this case Mrs Warren) was herself a successor within the meaning of section 88 (which of course she was). But for the prohibition on more than one succession to a tenancy on the death of the tenant, section 87 permitted someone to succeed to the tenancy if they were occupying the property as their only or principal home at the time of the tenant’s death, and were either(a) the tenant’s spouse or civil partner or

(b) another member of the tenant’s family and had resided with the tenant throughout the period of 12 months ending with the tenant’s death.

[5]Mrs Howell’s occupation of the property. Janet Beech, the first defendant, is one of Mr and Mrs Warren’s daughters. She lived at the property when her parents were first granted the tenancy, moving out of the property in 1970 or thereabouts when she got married and became Janet Howell. She used to visit her parents every weekend with her two children. She went back to live with her mother in 2005 at about the time of her divorce from her first husband. She was then with her new partner, Michael Beech, the second defendant, who she was to marry on 16 July 2011. Since she was known as Mrs Howell at all relevant times, that is how she will be referred to in this judgment. She and Mr Beech lived there for a few months – Mrs Howell puts it at about nine months, and Mr Beech at about six months (but it does not really matter which) – before moving to Worthing. However, things did not work out for them there, and about 18 months or so later, they returned to Birmingham in 2007.

[6]Mrs Howell acknowledges that their original intention when they returned to Birmingham was not to live with her mother. They wanted their own place, which was why they went onto the Council’s waiting list for accommodation before moving in with Mrs Warren. As it was, Mrs Warren did not enjoy the best of health, and I have no reason to doubt Mrs Howell’s claim that they went to live in the property in November 2007 initially at any rate to enable Mrs Howell to look after her mother. Nor do I doubt Mr Beech’s evidence that he found it very difficult living in the same house as Mrs Warren: some of her habits and her lack of concern for her personal hygiene upset him. He began to put pressure on Mrs Howell for them to move out if suitable accommodation was offered to them. For her part, Mrs Howell was torn between staying at the property because her mother needed to be cared for, and wanting a place of their own away from her mother because Mr Beech was unhappy living with her.

[7]The Council’s records show that a total of five properties were offered to Mrs Howell and Mr Beech in 2008 and 2009, though one of those offers was withdrawn when it became known that it only had a shower, not a bath which Mrs Howell and Mr Beech wanted. So far as I can tell, the offers were all for properties with one bedroom, and Mrs Howell and Mr Beech declined them all. The Council’s records show that they were declined for a variety of reasons: one was declined because if it was to be a flat, they wanted a flat on the ground floor only; another was declined because it was too far away from relatives; and another was declined because they wanted more bedrooms. For his part, Mr Beech’s evidence was that the accommodation they were offered was “terrible”, and that they were told that no repairs would be done before they moved in. My impression of Mr Beech when he gave evidence was that he was prone to exaggerate things, but I have no doubt that the accommodation they were offered compared unfavourably with Mrs Warren’s property. Kevin Pumphrey, the local housing officer responsible for properties on the estate, described the property as “absolutely immaculate” when he visited it on 23 March 2010, and the photographs I have seen of it show an exceptionally well-kept garden.

[8]In due course, there came a time when Mrs Howell’s preferred option was to stay at the property. Maybe she and Mr Beech had begun to realise that the Council would never offer them accommodation which was comparable to where they were living. Maybe they had realised that the time would eventually come when Mrs Warren would have to move out of the property, and they wanted to be in a position to stay there once she left. So Mrs Howell began to ask Mr Pumphrey’s predecessor as the local housing officer responsible for properties on the estate, and subsequently Mr Pumphrey himself, whether her name could be added to the tenancy. He told her that that was not possible.

[9]In fact, housing officers cannot consider such requests. They have to go to the local housing manager for consideration: see para. 2 of the statement of Dave Fairbotham, one of the Council’s local housing managers. But leaving that aside, when Mr Pumphrey was telling Mrs Howell that adding her name to the tenancy would not be possible, he had two things in mind. First, the Council’s policy was not to permit cross-generational tenancies, i.e. when the name of a parent or child who is not of the same generation as the tenant is added to the tenancy as a joint tenant. In fact, that was not quite right. Cross-generational tenancies are permitted, but only if the circumstances are exceptional, though Mr Pumphrey could be excused for not being aware of that exception, since the letter sent to tenants who ask for someone’s name to be added to the tenancy simply says that requests for cross-generational tenancies will be refused. Secondly, the Council was only prepared to consider a request for someone’s name to be added to a tenancy when the request was made by the tenant. Here the requests had been made by Mrs Howell, not by Mrs Warren. There is an issue whether Mrs Howell was informed of that requirement. Mr Pumphrey says that she was. Mrs Howell says that she was not. I think that she was. There would have been no reason for her not to be told that, and Mr Pumphrey would have wanted to reinforce the point that adding her name to the tenancy would not be possible.

[10]Mrs Warren ceases occupation. Mrs Warren went into hospital for an operation in October 2009. Mrs Howell and Mr Beech were still living with her at the property. Mrs Warren did not return home following her discharge from hospital. Instead, she moved into Abbey Park House, a residential care home. In one of her witness statements, Mrs Howell said that that was on about 15 November 2009, but it is more likely to have been on 10 December 2009 because(a) the discharge letter to Mrs Warren’s GP was dated 10 December 2009 and referred to her “planned” discharge on 8 December 2009, and

(b) the manager of Abbey Park House, Pat Bannister, says that Mrs Warren moved there on 10 December 2009. Mrs Warren was living there when she died on 9 June 2010 following a series of mini-strokes.

[11]After Mrs Warren had gone to live at the care home, Mrs Howell asked once again for a tenancy of the property. This time she enlisted the support of Pete Goodwin, the neighbourhood officer for the estate. On 12 January 2010, he sent Mr Pumphrey an e-mail informing him that Mrs Warren had moved into the care home and would not be returning to the property, and he asked for the tenancy of the property to be transferred to Mrs Howell and Mr Beech.

[12]The ending of the tenancy. On 19 February 2010, Mr Pumphrey visited Mrs Warren at the care home. The circumstances which led up to his visit, and what happened while he was there, will have to be explored in some detail later on, but the upshot of his visit was that Mrs Warren signed a notice to quit in which she gave up her tenancy of the property with effect from 22 March 2010. Mrs Howell was informed of that, and was told that she would have to move out of the property by then.

[13]Mrs Howell’s request for the tenancy. Mrs Howell and Mr Beech did not move out. Instead, they requested the Council to grant a tenancy of the property to them under the procedure which the Council had for granting tenancies to lodgers left in properties vacated by the tenant for one reason or another. Decisions under that procedure were made by a panel of senior officers. The request was supported by Mr Pumphrey who completed the application form on behalf of Mrs Howell and Mr Beech following a visit to the property on 23 March 2010. The application form said that Mrs Howell had lived at the property as a very young child and that she had many memories of living there. It referred to her having lived there again since November 2007. It mentioned her disabled son David who had been living with his father, but it said that his father had died the previous January, and implied (though it did not say so in so many words) that it may be necessary for David to live with her and Mr Beech. It also referred to health problems which she and Mr Beech had.

[14]The panel of senior officers considered the request on 4 May 2010. They wanted more information about whether David would be moving in with Mrs Howell and Mr Beech, and about what Mrs Howell’s and Mr Beech’s own care needs were. However, on either 6 July or 13 July 2010 (it is unclear which because Mr Pumphrey gave the former date in his letter to Mrs Howell’s and Mr Beech’s solicitors of 15 July 2010 and the latter date in his letter to Mrs Howell of the same date), the panel decided not to grant a tenancy of the property to Mrs Howell and Mr Beech. The two letters of 15 July 2010 informing them and their solicitors of that decision said that it was because the property was a three bedroom “parlour type” house, i.e. it had a dining room as well as a living room, and Mrs Howell and Mr Beech were therefore under-occupying a desirable house. The letter to their solicitors of 15 July 2010 additionally referred to the fact that they had “no legal right to the tenancy” as they were not “successors”. Mrs Howell and Mr Beech asked the panel to review its decision, but in September 2010 the panel confirmed its previous decision. Mrs Howell and Mr Beech were informed of that in a letter from Mr Pumphrey dated 22 September 2010.

[15]Mr Pumphrey’s letter of 22 September 2010 identified the policy which he thought the Council was applying: the policy set out in para. 5.4.2 of the Council’s scheme for allocating housing to those on its housing register. The relevant part of it stated:

“Following the death of a secure … tenant and where no other member of the tenant’s household has a right to succeed to the tenancy, [the Council] may consider the allocation of that property, on application, in the following circumstances: • The property was the principal or only residence of the applicant at the time the tenant died; and • the applicant would have qualified as a potential successor, in accordance with the Housing Act 1985, if succession had not already passed. • The applicant had been living with the tenant for a minimum of the year [sic] prior to the tenant’s death; or • the applicant had been providing care for the tenant.”

It went on to identify which officers had delegated power to make such a decision, though it added:

“In reaching a decision, the officer will take into account the best use of the housing stock and an allocation of the property is unlikely to be made where there would be under-occupation of the property …” • The property was the principal or only residence of the applicant at the time the tenant died; and • the applicant would have qualified as a potential successor, in accordance with the Housing Act 1985, if succession had not already passed. • The applicant had been living with the tenant for a minimum of the year [sic] prior to the tenant’s death; or • the applicant had been providing care for the tenant.”

[16]It is questionable whether Mr Pumphrey was right in thinking that the Council was considering the request for a tenancy of the property in the context of para. 5.4.2 bearing in mind that Mrs Howell had not been living with Mrs Warren at the time of her death. It looks as if the Council was considering the request in the context of para. 5.4.5 of the scheme, which set out certain “exceptional circumstances” in which applicants on the housing register might be given “a direct let”. I say that for two reasons. First, the part of the application form which was used by Mrs Howell and Mr Beech and which was headed “For Office Use Only” was itself headed “Direct Let Pro-forma – Exceptional Circumstances”. The second reason appears at [18] below. Para. 5.4.5 identified the sort of characteristics which could be regarded as amounting to exceptional circumstances, though none of them applied to Mrs Howell’s and Mr Beech’s case.

[17]On 25 October 2010, Mrs Howell and Mr Beech wrote to the Council purporting to appeal against this decision. She made further representations as to why they should have been granted a tenancy of the property. Those representations covered much the same ground as that in the previous application, but in addition they confirmed the possibility that it may be necessary for David to live with them, they referred to the care Mrs Howell and Mr Beech provided to three of their neighbours, and they mentioned Mrs Howell’s grandchildren staying with them over some weekends. Mrs Howell and Mr Beech did not receive a reply to their letter, and on 11 February 2011 Mrs Howell complained about that. One of the Council’s local housing managers, Julie Windsor-Price, discussed Mrs Howell’s complaints with her when she visited the property on 2 and 18 March 2011, and she dealt with Mrs Howell’s complaints in a letter of 5 April 2011. The letter included the following passage:

“The decision not to grant the tenancy has been based on there not being any right of succession, and the property being under-occupied by you i.e. it is a three-bedroomed property and you live as a couple and a one-bedroomed property is suitable for your housing needs.”

[18]These proceedings were commenced on 17 August 2011, but in the light of the defence to the claim, as well as the various witness statements filed on behalf of Mrs Howell and Mr Beech, the panel considered again whether to grant a tenancy of the property to them. On 23 March 2012, it decided not to. For some reason, the Council did not write to Mrs Howell and Mr Beech informing them of the decision until 29 October 2012 – just a few weeks before the claim was heard – and the letter came from Vicky Pumphrey, Mr Pumphrey’s wife, who was the Department’s senior service manager. Significantly, the letter said that the Council had considered the matter under para. 5.4.5 of the scheme for allocating housing.

[19]The letter included the following passage:

“The Panel’s decision making process is listed as follows: • The length of time that you have been living as a couple at the address – 2007 as per council tax records and the fact that it was Ms Howell’s childhood home. • The fact that Ms Howell cared for her mother, she was not in receipt of carer’s allowance. • Your medical circumstances and the supporting medical evidence. • The refusal of 5 suitable properties offered to you whilst registered for housing with [the Council]. It also noted that you had not placed any bids on [the Council’s] Choice Based Lettings to secure an alternative property. • The circumstances as to why you returned to Birmingham when experiencing financial difficulties with the property that they had in Worthing, Sussex.”

The reference to the Council’s Choice Based Lettings was a reference to a new scheme which had come into operation since Mrs Warren had given up the tenancy. Offers of particular accommodation were no longer made to those on the Council’s waiting list for accommodation. Instead, those on the waiting list were given PIN numbers with which to access the Council’s website and bid for what accommodation was available. • The length of time that you have been living as a couple at the address – 2007 as per council tax records and the fact that it was Ms Howell’s childhood home. • The fact that Ms Howell cared for her mother, she was not in receipt of carer’s allowance. • Your medical circumstances and the supporting medical evidence. • The refusal of 5 suitable properties offered to you whilst registered for housing with [the Council]. It also noted that you had not placed any bids on [the Council’s] Choice Based Lettings to secure an alternative property. • The circumstances as to why you returned to Birmingham when experiencing financial difficulties with the property that they had in Worthing, Sussex.”

[20]The letter noted the contents of 12 witness statements which had been filed on behalf of Mrs Howell and Mr Beech in the proceedings. Two were from Mrs Howell and Mr Beech themselves. One was from one of Mrs Warren’s grandchildren. The other nine were from neighbours. They spoke of how well Mrs Howell and Mr Beech had maintained and improved the property, of how they had provided friendship and support for their neighbours, some of whom were frail or in poor health, and of how the neighbourhood would be distraught if they had to leave the area. The Council’s letter acknowledged that Mrs Howell and Mr Beech were very supportive of their neighbours, but said that they could continue to provide that support if they successfully bid for such accommodation as was available in the same area. In addition, the letter rejected the complaints made in Mr Beech’s witness statement about the state of the accommodation which had previously been offered. It asserted that all the Council’s properties were to “the decent houses standard”. And it rejected the allegation made in Mrs Howell’s witness statement that Mrs Warren would not have realised what she was doing when she signed the document in which she gave up her tenancy of the property.

[21]Three final points should be made about the letter. First, the letter noted that no question of Mrs Howell succeeding to the tenancy could arise because the tenancy had been given up by Mrs Warren before she died. Secondly, the letter added that Mrs Howell and Mr Beech were only entitled to accommodation with one bedroom, and they were given a PIN number to enable them to bid for such accommodation. It also referred to the possibility of sheltered accommodation for them. That had been touched on before. In the letter of 5 April 2011 responding to the further representations made by Mrs Howell and Mr Beech as to why they should have been granted a tenancy of the property and to the complaint that those representations had gone unanswered, the Council had said that because of Mr Beech’s age and his health, they were entitled to sheltered accommodation with two bedrooms. Thirdly, the letter did not refer to David at all, but that must have been because, in her second witness statement which the panel had, Mrs Howell had candidly said that David did not need “constant care and supervision to the point where he needs to stay with [Mrs Howell] permanently”, and that although “he may still need a spare room”, he needed “his own space for independent living”.

[22]It should be noted that Mrs Howell and Mr Beech did not lose their right to be re-housed by refusing to move out of the property. Mr Fairbotham in his evidence explained what happens when a lodger’s request to have the tenancy of the property transferred to them is referred to the panel of senior Council officers. The Choice Based Lettings team had to be informed so that they could identify alternative accommodation if the panel decided not to transfer the tenancy to the lodger and the lodger did not move out so that the Council had to issue proceedings for possession. The disadvantage of doing that was that reserving a particular property meant that it would not be available for other tenants, and in any event it would restrict the choices available to the lodger. In fact, that did not happen in this case, but that was not a problem because if the court were to make an order for possession, the process would still get under way, and alternative accommodation would be offered to Mrs Howell and Mr Beech. They would not be regarded as intentionally homeless, even though that was something which Mr Pumphrey acknowledged in an e-mail to Mr Fairbotham he had said to Mr Beech when they had met shortly before 23 March 2010.

[23]In the interests of completeness, I should add that it looks as if at one time it was thought that Mrs Howell could succeed to the tenancy when Mrs Warren died. That was what Mr Goodwin was told in response to a query he had raised on 18 June 2009. Having said that, it also looks as if the possibility that Mrs Howell could succeed to the tenancy was based on the fact that the Council’s records had not been updated by then, and they still showed the tenancy to be in the joint names of Mr and Mrs Warren. The mistake was compounded by an unfortunate error later on. On 15 March 2010, Mr Pumphrey wrote to Mrs Howell and Mr Beech informing them that they may have the statutory right to succeed the tenancy. On the assumption that they did, he enclosed a copy of the tenancy conditions, which explained what was expected of them now that they were tenants of the Council. Indeed, it said that they were now responsible for the rent. However, paradoxically the letter also drew their attention to the fact that the 1985 Act “[did] not allow any further right of succession”! It looks as if someone pressed the wrong button on the word processor, but fortunately no damage was done, because Mrs Howell had no recollection of ever seeing this letter.

The ending of the tenancy

[24]The first issue to be addressed is whether Mrs Warren’s giving up of the tenancy was valid. If it was not, her tenancy would have continued until such time as it was brought to an end by the service of a valid notice to quit. The Council’s original position was that if Mrs Warren’s giving up of the tenancy had not been valid, her tenancy was terminated as a result of a subsequent notice to quit dated 3 March 2011. Of course, by then Mrs Warren had died, and the notice to quit could only have been effective if it had been served on the Public Trustee since she died intestate. Since it had not been served on the Public Trustee, the Council no longer seeks to rely on it. If Mrs Warren’s giving up of the tenancy was indeed invalid, the Council acknowledges that the current claim for possession must be dismissed, but it asserts that there would be nothing to prevent it from bringing the tenancy to an end now by the service of a new (and valid) notice to quit, in which case the other issues about(a) the lawfulness of the initial refusal to add Mrs Howell’s name to the tenancy, of the circumstances in which Mrs Warren signed the notice to quit, and of the Council’s subsequent refusal to grant a tenancy of the property to Mrs Howell and Mr Beech,

(b) the proportionality of an order for possession, and

(c) the compatibility of the statutory scheme for succeeding to public sector tenancies on the death of the tenant with Mrs Howell’s human rights, would have to be litigated at some stage. Both sides told me at the hearing that they wanted me to address those issues in this case – even if I were to find that Mrs Warren’s giving up of the tenancy was invalid – since my findings on those issues would determine the outcome of any future claim for possession.

[25]The defendants’ advisers have had second thoughts about this approach. They now think that it might not be right for the court to address issue (a) if I were to dismiss the claim for possession on the basis that the notice to quit was invalid. In para. 35 of his closing submissions, Mr Stephen Cottle for Mrs Howell and Mr Beech wrote:

“The Defendants question the purpose of the Court necessarily having to decide whether or not to uphold the public law defence if I have already decided to dismiss the claim, because a fresh claim, if any, is bound to rely on the lawfulness of a subsequent decision, with a different backcloth including this judgment and any further panel decision, which will [be] reached on a different backcloth and may be favourable.”

They also have concerns about whether the court should address issue (c) if Mrs Warren was found not to have validly given up her tenancy. Having raised the issue in their defence, Mrs Howell counterclaimed for a declaration that particular sections of the 1985 Act are incompatible with her human rights. In para. 37 of his closing submissions, Mr Cottle wrote:

“If the Defendants win the possession claim they would have funding problems in pursuing the counterclaim further and so part company with the Claimant’s suggestion that the Court should decide as much as it can.”

I shall return to all this when I have dealt with whether Mrs Warren’s giving up of the tenancy was valid.

[26]The claim that Mrs Warren’s giving up of the tenancy was not valid was originally based on two grounds:(i) she is alleged not to have had the mental capacity to give the tenancy up, but even if she did,

(ii) her willingness to give up the tenancy may have been procured in circumstances amounting to (a) undue influence or (b) unconscionable behaviour on the part of Mr Pumphrey. The first of these grounds is no longer pursued. The burden is on Mrs Howell and Mr Beech to prove that Mrs Warren lacked mental capacity at the relevant time. That is the effect of section 1(2) of the Mental Capacity Act 2005, which provides:

“A person must be assumed to have capacity unless it is established that he lacks capacity.”

Mrs Howell and Mr Beech now accept that they are unable to prove that Mrs Warren lacked mental capacity at the relevant time: see para. 125 of Mr Cottle’s closing submissions. But the fact that Mrs Warren had what Mr Cottle describes as “capacity issues” is relevant, so he claims, to the extent of the influence Mr Pumphrey could exert over her and to the extent of her bargaining weakness, so an analysis of her mental state is necessary for that purpose.

[27]Mrs Warren’s mental state. There are two relevant reports on Mrs Warren. The first is dated 11 March 2008. This would have been a few months after Mrs Howell and Mr Beech had moved into the property. Mrs Warren was then 81 years old. The report was prepared by a consultant in old age psychiatry. He diagnosed Mrs Warren as suffering from mild depression probably stemming from loneliness following her husband’s death and her poor physical health. More relevantly for present purposes, she was also diagnosed as suffering from mild dementia. In February 2008, she had apparently displayed mild cognitive impairment, but her mood had improved when she visited a day centre. At the time of the examination for the purpose of the report, it was noted that she gave relevant answers to the questions she was asked, even though her answers were not spontaneous. She had a minor problem about finding the right words. She scored 25 out of a possible 30 points on the MMSE test, and I know from previous cases that a score of 25 or more indicates a normal level of cognitive functioning. She displayed slight psychomotor retardation and was unable to follow instructions, but there were “no abnormalities of thought, perceptions or beliefs”.

[28]The other report is a social work assessment carried out on 27 October 2009 by the community care team while Mrs Warren was in hospital. It referred to the assessment of an occupational therapist that Mrs Warren had mild cognitive impairment. It spoke of her needing “a lot of prompting and encouragement, when making decisions. She has limited ability to act on informal choices.” But the focus of the report was whether Mrs Warren should go to a residential care home, and in that context one of the doctors said that in his opinion Mrs Warren had the capacity to decide where she wanted to go on her discharge from hospital. What is important is that neither of these reports suggested that her ability to make decisions was so impaired as to call into question her mental capacity.

[29]Then there was the evidence of Mrs Bannister. She thought that Mrs Warren was not capable of managing her financial affairs, which no doubt was why her other daughter Ann looked after that side of things. She could forget things which she had been told quite recently. She was aware of where she was, and knew what she wanted. She was capable of making decisions about everyday things in her life, such as what she wanted for lunch, but the various options needed to be spelt out to her. She was able to converse with other residents and members of staff.

[30]If the issue of Mrs Warren’s mental capacity still had to be considered, the critical question would have been whether Mrs Warren was unable to make a decision at the time about whether to give the tenancy up, and she would only have been regarded as unable to make such a decision if her dementia was such that she was unable(a) to understand the information relevant to the decision even if given to her in a way which was appropriate to her circumstances,

(b) to retain that information for at least a short while,

(d) to communicate her decision in some way. Mrs Howell says that when her mother signed the notice to quit in which she gave the tenancy up, she would not have appreciated what she was signing. That depends – in part at least – on what she was actually told at the time, and I shall refer to that shortly. But in the light of the rest of the evidence, I can well understand why it is no longer contended that Mrs Warren lacked the mental capacity to give up the tenancy.

[31]Undue influence and unconscionable behaviour. Although it was alleged only that Mrs Warren’s willingness to give up the tenancy may have been procured by undue influence or unconscionable behaviour on the part of Mr Pumphrey (see para. 13 of the Amended Defence and Counterclaim), the parties have proceeded on the basis that this allegation has been positively advanced. I deal with it on the basis that it has been. The relevant facts here are these. Mr Pumphrey had visited Mrs Warren in her home on one occasion prior to 19 February 2010. That was sometime in 2009. He had gone there to tell Mrs Warren that Mrs Howell had been asking for her name to be added to the tenancy. He had thought that Mrs Warren ought to know that. But in February 2010 he had not had any official confirmation of what Mr Goodwin had told him in the e-mail of 12 January 2010 – namely, that Mrs Warren had moved into the care home and would not be returning to the property. Until that was confirmed, Mr Pumphrey proceeded on the assumption that this was what he called “another ploy” to obtain the property. So on 16 February, he informed Elaine Bradley, another housing officer, that he was going to visit Mrs Warren in the care home to “establish the facts”, by which he meant, I find, to ascertain for himself whether Mrs Warren would or would not be returning to the property. He also sought advice from the Elderly Services Section of the Council’s Department of Social Services about interviewing an elderly tenant who was quite frail and had just come out of hospital.

[32]Mr Pumphrey called Mrs Bannister to make an appointment for him to see Mrs Warren. That did not come as a surprise to Mrs Bannister. Mrs Warren’s other daughter Ann had told her two or three times that Mrs Warren would be “signing the house over to the Council” and that someone from the Council would be visiting Mrs Warren “to get her to do that”. There was no evidence about who had told Ann that. The appointment was fixed for 19 February 2010. Mrs Bannister was expecting Ann to be there because only that explains Mrs Bannister’s evidence that Ann had not arrived when Mr Pumphrey got there that day. Mr Pumphrey was never asked whether he had expected Ann to be there, and he could not recall whether Mrs Bannister had actually told him to wait until she had phoned Ann. But that is what happened. Mrs Bannister called Ann, and Ann told her that she could not make it, but she asked Mrs Bannister to witness her mother’s signature. In fact, Mrs Bannister was with Mrs Warren the whole time Mr Pumphrey was with her. Her evidence was that she thought that she was just witnessing Mrs Warren’s signature, but Mr Pumphrey thought that she was there to make sure that “nothing untoward happened” and to witness what was said.

[33]Mr Pumphrey did not give a full account in either of his witness statements about his conversation with Mrs Warren. The omission of it from his second witness statement is a little surprising because he signed it almost three months after the defence had been served alleging that the consequences of signing the document which Mrs Warren was to sign that day had not been explained to her. But by the end of the conversation, Mrs Warren had signed the form used by the Council when one of its tenants gives up their tenancy. The document is headed “Notice to Quit Tenancy”. It gives the tenant’s name, the tenant’s old address and new address, the date when the tenant will be leaving the property or had left it, and the date when the notice to quit is given. It states that the tenant is giving notice to terminate their tenancy on that date, and identifies the date when the tenancy will end. The details were filled in by Mr Pumphrey. Although it was completed on 19 February 2010, the form mistakenly said that it was being completed on 18 February 2010. It gave 22 March 2010 as the date when the tenancy would end, and it was signed by Mrs Warren.

[34]At the same time, Mr Pumphrey completed a file note (which again he mistakenly dated 18 February 2010). It read:

“Mrs Warren doesn’t have a social worker. Mrs Warren needs 24 hour a day care and cannot return home. Mrs Warren was in hospital for a while. Then released to Abbey Park. Mrs Warren is now at Abbey Park full time. Pat, Head Nurse states that Mrs Warren is fully aware & has no memory issues. Mrs Warren can make decisions for herself.”

Three points should be made about this file note. First, this too did not purport to set out what Mr Pumphrey told Mrs Warren which caused her to sign the notice to quit. Secondly, it was signed by Mrs Warren and Mrs Bannister, whereas the notice to quit was signed by Mrs Warren alone. That rather suggests that Mrs Bannister was doing something more than simply witnessing Mrs Warren’s signature. She was confirming what she had told Mr Pumphrey about Mrs Warren’s mental state, and was making sure that Mrs Warren understood what Mr Pumphrey was saying. Thirdly, I doubt whether Mrs Bannister really did mean to say what Mr Pumphrey attributed to her in the file note. There is no reason to question Mrs Bannister’s view of Mrs Warren’s awareness, but it would not be right to say that Mrs Bannister’s view was that Mrs Warren had no memory issues. She said that Mrs Warren had a very poor short-term memory, whatever her long-term memory may have been like. And although Mrs Warren could make decisions about the everyday things in her life, that did not necessarily mean that Mrs Warren could make other kinds of decisions for herself. I do not doubt that what Mr Pumphrey attributed to Mrs Bannister in the file note was what he understood her to be saying, but when it came to things like her short-term memory, they may not have been on quite the same wavelength.

[35]With all that in mind, I turn to Mr Pumphrey’s evidence of what he actually said to Mrs Warren. I shall put it into narrative form to make it easier to follow, but it does not purport to be a verbatim account of what he said. It is simply the gist of his evidence of how the conversation went:

“I told Mrs Warren that I was there because I’d been told that she was now in the care home full time. I told her that if she was going to stay in the care home full time, she couldn’t keep her tenancy, because the tenancy agreement said that she had to live there as her principal home, and she wouldn’t be doing that any more. I also told her that by signing the notice to quit Janet wouldn’t be able to stay in the house, but that we’d made her several offers of accommodation. I told her that she didn’t have to sign the notice to quit, and she could speak to her daughters if she wanted to, but she couldn’t keep the tenancy. While I was talking to her, she didn't say anything. She just listened.”

[36]Mr Pumphrey was cross-examined on the basis that none of this was ever said. That was why it was not in either the file note or either of his two witness statements. He wanted to leave the care home with the notice to quit having been signed by Mrs Warren, because then the tenancy would come to an end on 22 March 2010. There would not be any need to issue proceedings, unless, of course, Mrs Howell refused to move out. That was why he took the notice to quit with him even though he had no idea whether Mrs Warren was going to sign it. However, having seen Mr Pumphrey in the witness box for quite a while, I do not think that he was making up this part of his evidence. He did not put in the file note what he had said because he knew that if Mrs Warren signed the notice to quit, that would bring her tenancy to an end on its expiry. That was why he took the notice to quit with him. It was what he usually did in that situation. If she wanted to speak to either of her daughters before signing the notice to quit, that was fine by him. That was why he told her that she did not have to sign the notice to quit, and that she could speak to her daughters if she wanted to. Indeed from his point of view, it did not matter whether Mrs Warren signed the notice to quit at all. Since she was no longer living at the property, her tenancy was no longer a secure one, and if she did not sign the notice to quit, the Council, he said, would have followed the procedure it adopts when a property has been abandoned. Under that procedure, the tenant would be notified by letter that it had been brought to the Council’s attention that they were no longer occupying the property, and unless they contacted the Council within 7 days, action would be taken to terminate the tenancy. If no response was received, a notice to quit would be issued. If Mrs Howell did not then move out, proceedings for possession could be brought.

[37]Mr Cottle argued that that would not be right. The Council’s Abandoned Property Procedure which was issued in January 2010 said:

“NOTE: The Abandoned Property Procedure should not be used as a means to coerce tenants to make contact if they have not responded to calling cards. It should only be used in these circumstances if there are no recent signs of habitation (i.e. there are reasonable grounds to believe that the property is unoccupied and the tenant does not intend to return).”

Since the property was still inhabited by Mrs Howell and Mr Beech, Mr Cottle contended that the procedure did not apply. I do not agree. This passage in the procedure applies only when the tenant has not responded to calling cards left at the property. It makes the point that the procedure should only be used as a means of coercing tenants to contact the Council when there are no signs of recent habitation. Having said that, even if the abandoned property procedure did not apply to a case where the tenant left the property leaving members of their family living there, the Council would have been entitled to bring the tenancy to an end by serving a notice to quit once the tenant had ceased to occupy the property as their only or principal home.

[38]I have not overlooked Mrs Bannister’s evidence that she did not recall Mr Pumphrey saying anything to Mrs Warren along the lines that if she gave up the property, Mrs Howell could not live there any more. But I would not have expected her to pay all that much attention to what Mr Pumphrey was saying in the light of(a) her evidence that she signed the file note only to witness Mrs Warren’s signature on it, and

(b) my finding that at most all she was doing was making sure that Mrs Warren understood what Mr Pumphrey was saying. The fact that almost three years later she had no recollection of Mr Pumphrey saying anything to Mrs Warren about Mrs Howell having to leave the property if Mrs Warren gave it up (when she had not had any reason to try to recollect the events of 19 February 2010 since her attendance at court was secured by a witness summons) does not mean at all that he did not say something along those lines. I am sure that he did.

[39]But what was Mrs Warren’s understanding of what Mr Pumphrey was telling her? Mrs Bannister’s view was that nothing gave her cause for concern that Mrs Warren might not have understood what she was being told, and I am sure that Mrs Warren would have realised that by signing the notice to quit, she was giving up the tenancy. She may well have wanted Mrs Howell to be able to stay on at the property, but she thought that because she was now living in the care home, she had to give up her tenancy, and that that meant that Mrs Howell would not be able to live there. However, I also think that Mrs Warren may have thought that she had to sign the notice to quit. Mr Pumphrey candidly acknowledged that she may have thought that she had to sign the notice to quit because she would not be returning to the property, even though Mr Pumphrey told her that she did not have to sign it.

[40]More significantly, although Mrs Warren was told that she did not actually have to sign the notice to quit, what she was not told was what would happen if she did not sign it, namely that the Council would serve its own notice to quit, but that because of the additional letter which the Council had to serve on her under the abandoned property procedure, it would take at least a week before such a notice to quit could be served. In other words, I do not think that Mrs Warren realised that she could refuse to sign the notice to quit, and that if she refused to sign it, she could – in theory at least – be buying a little more time for Mrs Howell to remain in the property. That was not the result of any lack of mental capacity on her part. It was just that that consequence of not signing the notice to quit was not spelled out to her, and it did not occur to her to ask what the consequences of not signing the notice to quit might be. That is not to imply any improper motive on Mr Pumphrey’s part. I do not believe for one moment that he was trying to hide anything from Mrs Warren. He genuinely thought that it was enough for him to tell Mrs Warren that she did not have to sign the notice to quit, and it did not occur to him to spell out what the effect in the short term of her not doing so might be since in reality it would have no effect at all.

[41]I say that because Mr Pumphrey knew from Mr Goodwin’s e-mail of 12 January 2010 that Mrs Howell was asking the Council to grant her and Mr Beech a tenancy of the property. A decision on that request would have to be made whether or not Mrs Warren signed the notice to quit. Indeed, her signing of the notice to quit did not lead to an immediate attempt to evict Mrs Howell and Mr Beech when they were unwilling to leave the property voluntarily. They were allowed to stay there while the Council considered their request. So had Mrs Warren not signed the notice to quit, and had the Council had to rely on a notice to quit of its own once the panel of senior officers had decided to refuse Mrs Howell’s request for a tenancy of the property, the notice to quit which the Council would then have served would have expired well before August 2011 when the Council commenced the present proceedings. So in the events which occurred, the fact that Mrs Warren signed the notice to quit on 19 February 2010 did not mean that Mrs Howell and Mr Beech had had to leave the property any sooner than if Mrs Warren had refused to sign it.

[42]Mr Pumphrey was cross-examined on the basis that it had been inappropriate for him to have spoken to Mrs Warren without having spoken to Mrs Howell first and having given her the opportunity to be there. The suggestion was made that he deliberately chose not to do that because he thought that she would raise what Mr Cottle called “her tired old request” for her name to be added to the tenancy. I do not go along with that criticism of Mr Pumphrey. The fact is that Mr Pumphrey knew that Mrs Howell could not succeed to the property if Mrs Warren were to die, and whether she became the tenant of the property in place of Mrs Warren was for the panel of senior officers to decide. He may have been irritated by Mrs Howell’s requests in the past for her name to be added to the tenancy. Indeed, in one e-mail he referred to himself and his predecessor as the local housing officer responsible for properties on the estate having been “fighting against this since 2007”. But I do not think that that made him want to speak to Mrs Warren on her own, or to keep Mrs Howell unaware of what he was going to do. He was quite content for either or both of Mrs Warren’s daughters to be present when he saw her, which was why he had no problem with Mrs Bannister telephoning Ann when he got to the care home. It is true that he thought that since Mrs Warren was the tenant, she was the person he had to speak to rather than one of her daughters, but that did not mean that he did not want either of them there when he did so.

[43]In the interests of completeness, I should add two things to all of this. First, when Mr Pumphrey was asked why he did not give Mrs Warren the opportunity to talk to her daughters before she was asked to sign the notice to quit, Mr Pumphrey said that there was a cooling-off period until 22 March 2010 when the notice to quit expired, and that Mrs Warren could have withdrawn the notice to quit at any time before then. Even though a notice to quit cannot be withdrawn once it has been given, the real point here is that(a) Mr Pumphrey did not tell Mrs Warren that if she wanted to change her mind, she could do so,

(b) the notice to quit does not refer to such a cooling-off period, and

(c) when Mr Pumphrey wrote to Mrs Howell on 22 February and 22 March 2010 in which he referred to the notice to quit which Mrs Warren had signed, he did not mention that there was a cooling-off period during which Mrs Warren could change her mind. I do not think that Mr Pumphrey had any improper motive for not mentioning his belief in the existence of any cooling-off period to Mrs Warren or her daughters, and I do not accept that it was the reason why he did not give Mrs Warren the opportunity to talk to her daughters before he visited her at the care home. It was just that he did not see any point, because it did not occur to him that there was anything which could be done to avoid Mrs Warren’s tenancy coming to an end, whether by a notice to quit signed by her, or a notice to quit issued by the Council.

[44]Secondly, Mr Pumphrey has been criticised for telling Mrs Warren that she could not keep the tenancy because the tenancy agreement said that she had to live in the property as her principal home. The tenancy agreement merely said in para. 2.6.5 that if she stopped using the property as her only or principal home, the Council could interfere with her right to live in the property. The point which Mr Cottle made was that this was not a term of the tenancy. It was simply “an example of the situation where the law allows the housing authority landlord to end the tenancy without recourse to the security provisions contained in Part 4 [i.e. Part IV of the 1985 Act] (because the tenant is no longer satisfying the tenant condition)”. Whether that is technically correct or not, Mr Pumphrey cannot seriously be criticised for telling Mrs Warren what he did. She had lost security of tenure as a result of moving into the care home, and she would not be able to keep her tenancy if the Council chose to take the property back.

[45]I turn, then, to whether on these facts Mrs Warren’s willingness to sign the notice to quit was procured in circumstances amounting to undue influence or unconscionable behaviour on the part of Mr Pumphrey. It is to be noted that(a) Ann has made no complaint about Mr Pumphrey,

(b) Mrs Howell was not there when the notice to quit was signed and cannot therefore say what was said,

(d) Mrs Warren herself was not disadvantaged in any way by the notice to quit she signed. If anyone was disadvantaged, it was Mrs Howell. None of that is decisive, of course. Indeed, many cases of undue influence may have not dissimilar features. But it is the context in which the present allegations of undue influence and unconscionable behaviour have to be considered.

[46]The modern law of undue influence is derived from the speech of Lord Nicholls in Royal Bank of Scotland Plc v Etridge (No. 2)

[2002] 2 AC 773

. At [8], Lord Nicholls identified two forms of conduct to which the principle of undue influence would apply:

“The first comprises overt acts of improper pressure or coercion such as unlawful threats. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage.”

I have not identified any improper pressure or coercion on Mr Pumphrey’s part to get Mrs Warren to sign the notice to quit. Mrs Warren could have told him that she was not going to sign anything without showing it to her daughters first, or at least speaking to them about it. She was told in terms that she could do that. The only criticism which could have been made of Mr Pumphrey is that he did not tell her what the consequence of signing the notice to quit would be in terms of when Mrs Howell would have to move out of the property. But that would have given Mrs Howell an extra few weeks in the property at most, and omitting to tell her that was a long way from applying improper pressure or coercion to get her to sign the notice to quit.

[47]The second form of undue influence arises without any such pressure or coercion. As Lord Nicholls put it at [9]:

“The relationship between two individuals may be such that, without more, one of them is disposed to agree to a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired.”

The burden of proof is on Mrs Howell and Mr Beech. In order to prove undue influence, they must establish that Mrs Warren placed trust and confidence in Mr Pumphrey, and that the signing of the notice to quit was not readily explicable in the ordinary way. As Lord Nicholls said at [14]:

“Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties’ relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn.”

[48]The relationship between Mrs Warren and Mr Pumphrey was not the sort of relationship which the law recognises as giving rise to an irrebuttable presumption of a relationship of trust and confidence. I did not understand Mr Cottle to contend otherwise. So was their relationship one in which Mrs Warren nevertheless placed trust and confidence in Mr Pumphrey? Although they had met on an earlier occasion, the relationship between them was simply that of council official and council tenant. She was entitled to expect that he would deal honestly with her, and she may have thought that he would tell her everything she needed to know in order to make an informed decision about whether to sign the notice to quit. But I do not think that that meant that their relationship was one in which it could be said that she placed trust and confidence in him. Having said that, even if it was, there was no question of Mr Pumphrey deliberately keeping quiet about the consequences of Mrs Warren signing the notice to quit, let alone doing that so that the Council would be able to get Mrs Howell and Mr Beech out of the property sooner than they otherwise would have been able to. That also explains why Mrs Warren’s willingness to sign the notice to quit could not be said to have been procured by unconscionable behaviour on the part of Mr Pumphrey. For his behaviour to have been unconscionable, Mr Pumphrey had to be regarded as having taken advantage of Mrs Warren’s age and ignorance of the consequences of signing the notice to quit to get her to do something which no well-advised person would have done. Mr Pumphrey did not do that.

[49]I have not overlooked Mr Cottle’s reliance on what Megarry J (as he then was) said in Cresswell v Porter

[1978] 1 WLR 255

about the need for independent advice. But that has to be put into its proper context. Megarry J was considering whether the release by a wife of her half-interest in the matrimonial home in exchange for an indemnity against any liability on the mortgage arrears should be set aside. He proceeded on the basis that, even in the absence of abuse of confidence or oppression, a transaction at a considerable undervalue could, and should, be set aside where the vendor was poor and ignorant and had acted without independent advice. Mr Cottle did not suggest that it was unfair for Mr Pumphrey to ask Mrs Warren to sign the notice to quit without getting independent legal advice, but he did say that it was unfair for him to do that without suggesting to her that she should speak to Mrs Howell before she did so. That, I think, is to give what Megarry J said about independent advice in Cresswell an importance which it does not deserve. “A contract will not be set aside merely because the aggrieved party did not have independent advice and the consideration was inadequate. It must also be shown that the other party engaged in unconscionable conduct or an unconscientious use of power”: Chitty on Contracts, vol 1, 31st ed, para. 7-136. There was no unconscionable conduct or an unconscious use of power on the part of Mr Pumphrey in the sense of him trying to take advantage of Mrs Warren.

[50]For these reasons, I have concluded that the notice to quit was validly signed by Mrs Warren, and the effect of it was that Mrs Warren gave up her tenancy with effect from 22 March 2010. In the light of this finding, it is necessary for me to address the other defences to the claim.

The claim for possession: the public law challenge

[51]It is, of course, well established that a defendant may defend a claim for possession on the basis that the local housing authority’s decision to bring the proceedings was unlawful. Mrs Howell and Mr Beech have done just that. In the light of the findings I have made, their case has three remaining elements. First, the information given to Mrs Howell while her mother was still living at the property that her name could not be added to the tenancy was mistaken. Secondly, when Mr Pumphrey had been told that Mrs Warren had moved into the care home, he should have discussed the future of Mrs Warren’s tenancy of the property with Mrs Howell before asking Mrs Warren to sign the notice to quit. In particular, he should have explained to her what Mrs Warren’s options were when it came to the future of the tenancy and what the implications were of her signing the notice to quit. Had that been done, Mrs Howell might have persuaded Mrs Warren to ask the Council for her name to be added to the tenancy or at least not to sign the notice to quit. Thirdly, the decision of the panel of senior Council officers on 6 July 2010, which was confirmed in September 2010 and on 23 March 2012, not to grant Mrs Howell and Mr Beech a tenancy of the property failed to take properly into account their personal circumstances and the impact of their leaving the property on the local community as well as taking into account an irrelevant consideration and wrongly treating another consideration as decisive when it was not. Since the bringing of the claim for possession was a consequence of these flaws, Mrs Howell and Mr Beech raise them as a defence to the claim. A separate claim of judicial review raising these flaws was not necessary.

[52]Adding Mrs Howell’s name to the tenancy. As I said in [9] above, the Council is only prepared to consider a request for someone’s name to be added to the tenancy when the request is made by the tenant. That was Mr Pumphrey’s evidence, and it has been borne out by a document disclosed following the hearing, which is the Council’s written policy issued in September 2010 “for dealing with requests for joint tenancies from existing sole tenants”. The policy does not in terms state that the request can only be made by the tenant, but the application form has to be completed by the tenant, even though both the existing tenant and the proposed joint tenant have to sign a suitable declaration. No document has been disclosed about the Council’s policy prior to September 2010, but there is no reason to doubt Mr Pumphrey’s evidence, confirmed since the hearing by Mr Fairbotham’s witness statement, that that was the policy when Mrs Howell was asking for her name to be added to the tenancy.

[53]There is no challenge to this policy, nor could there be. It ensures that no-one can become a joint tenant without the agreement of the existing tenant. That is important because a joint tenant can make the existing tenant liable for his breaches of the tenancy, and can exercise all the rights of the tenant, including terminating the tenancy without reference to the existing tenant. The defendants’ case has to be that when Mr Pumphrey heard from Mr Goodwin that Mrs Warren had moved into the care home and would not be returning to the property, he should have arranged to meet Mrs Warren and her daughters to discuss what was to happen to the tenancy. That would have enabled Mrs Howell to be told – or rather reminded in the light of my finding that she had been told this before – that if she wanted to have her name added to the tenancy, it would have to be her mother who requested it.

[54]Mr Pumphrey did not set up such a meeting, but I do not think that he can be criticised for that. He had already told Mrs Howell that it was Mrs Warren who had to make the request for her name to be added to the tenancy, and he had no reason to think that she had not taken that on board. Mrs Howell acknowledged in cross-examination that her attempts to take over the tenancy had become something of a campaign, in which she had enlisted the support of her MP among others. It is unlikely that in the course of that campaign she would not have been told that any request for her name to be added to the tenancy had to come from her mother. The fact is that she was told that, but it had not registered with her.

[55]The implications of not signing the notice to quit. It might have been prudent for Mr Pumphrey to have explained to one of Mrs Warren’s daughters what the implications were of Mrs Warren not signing the notice to quit, namely that it could buy a little more time for Mrs Howell to remain in the property while the Council went through the procedures it has when a property has been abandoned and then served a notice to quit of its own, assuming, of course, that the Council chose to do that while the panel of senior officers was considering Mrs Howell’s request for a tenancy of the property. What Mrs Warren might then have done is likely to have depended on which of her daughters Mr Pumphrey had spoken to. If Mrs Howell’s evidence is anything to go by, there was little love lost between her and Ann. Her evidence was that Ann did not want her and Mr Beech to stay in the property. Ann was not called to give evidence, and it would be unwise for me to reach a conclusion on the topic without her evidence, but I proceed on the assumption that what Mrs Howell told me was correct. On that assumption, if Mr Pumphrey had told Ann what the possible implications were of Mrs Warren not signing the notice to quit, it is likely that Ann would have told her mother to go ahead and sign it. It is possible, though, that if Mr Pumphrey had spoken to Mrs Howell about what the implications were, Mrs Howell would have told her mother not to sign it.

[56]But even if Mrs Warren had not signed the notice to quit, that would not have made the bringing of proceedings for possession against Mrs Howell and Mr Beech unlawful. Even if Mrs Warren had not signed the notice to quit, the Council would have served its own notice to quit when it refused Mrs Howell’s request to be granted a tenancy of the property. It could then have brought proceedings for possession against Mrs Howell and Mr Beech, albeit based on that notice to quit rather than the one which Mrs Warren signed. Of course, that notice to quit had to have been a valid one, and I have not overlooked the one of 3 March 2011, which was invalid because it was not served on the Public Trustee. But if the Council’s notice to quit had been served on Mrs Warren before her death on 9 June 2010, there would have been no problem with it, and if the Council had been serving a notice to quit after then to found proceedings (rather than to justify proceedings which had been started on the basis of an allegedly invalid notice to quit), it is overwhelmingly likely that the Council would have ensured that it was properly served.

[57]The refusal to grant Mrs Howell and Mr Beech a tenancy of the property. It will be recalled that the letter of 15 July 2010 to Mrs Howell’s and Mr Beech’s solicitors, and the letters of 22 September 2010 and 29 October 2012 to Mrs Howell and Mr Beech themselves, informing them of the decisions of the panel of senior Council officers – as well as the letter of 5 April 2011 responding to Mrs Howell’s complaint about how her “appeal” had been handled – all referred to the fact that Mrs Howell had not been entitled to succeed to the property. One of the criticisms of the panel of senior officers is that that could not have been a valid reason for refusing to grant a tenancy of the property to Mrs Howell and Mr Beech. It was because Mrs Howell could not succeed to the tenancy that the Council was being requested to grant the tenancy of the property to them. To this extent, therefore, it is contended that the panel of senior officers took an irrelevant consideration into account when refusing their request for a tenancy of the property.

[58]I cannot go along with this criticism of the panel at all. In these letters, the Council was referring to the absence of a right to succeed to Mrs Warren’s tenancy as part of the narrative. It was explaining why the grant of a tenancy of the property was in the gift of the Council, rather than a right which Mrs Howell enjoyed. There was no question of the Council refusing to grant her and Mr Beech a tenancy of the property because Mrs Howell had no right to succeed to her mother’s tenancy.

[59]Another criticism of the panel of senior officers is that it regarded the fact that the property would be under-occupied if a tenancy of it was granted to Mrs Howell and Mr Beech as decisive. It is true that that is all that the letters of 15 July 2010 and 22 September 2010 say, but that does not mean that the panel did not have regard to things like Mrs Howell’s historic links with the property, their residence there for the previous three years, the state of their health and the possibility that David might come to live with them. The fact that the letter referred only to the fact that the property would be under-occupied is entirely consistent with the panel concluding that these factors did not outweigh the needs of those families who had been assessed as requiring a property with three bedrooms.

[60]This criticism cannot be made, of course, of the decision of 23 March 2012 since we know from the letter of 29 October 2012 that the panel had in mind the representations which Mrs Howell and Mr Beech had made. To the extent that this decision of the panel (and the previous ones, for that matter) is criticised on the basis that it was one which the panel could not reasonably have reached, I do not agree. It is well known that public sector housing is a scarce resource in major metropolitan areas. Some families have to wait a long time to be allocated accommodation which is suitable for their needs. The panel was entitled to conclude that the competing needs of families waiting for a property with three bedrooms should outweigh the factors relied on by Mrs Howell and Mr Beech.

[61]Finally, the panel is criticised for not taking properly into account the personal circumstances of Mrs Howell and Mr Beech and the impact of their leaving the property on the local community. It goes without saying that the panel could only go on those facts which Mrs Howell and Mr Beech had brought to its attention, and that meant considering the application form completed on their behalf by Mr Pumphrey, such additional information as the panel got following its request on 4 May 2010 for more information on specific topics, Mrs Howell’s and Mr Beech’s letter of 25 October 2010, Mrs Howell’s letter of 11 February 2011, such additional information as was given to Ms Windsor-Price when she visited the property on 2 and 18 March 2011, and the various witness statements filed on behalf of Mrs Howell and Mr Beech in these proceedings. There is nothing to suggest that the panel did not consider that information. Indeed, the letter of 29 October 2012 shows that it did. The fact of the matter was that the panel took the view that the various things on which Mrs Howell and Mr Beech relied were outweighed by(a) the competing needs of those on the Council’s waiting list who required a three bedroom “parlour type” house, and

(b) the scale of the current under-occupation of the property.

[62]For all these reasons, the defence to the Council’s claim for possession on the basis that the bringing of the claim was unlawful on public law grounds must fail.

The claim for possession: the human rights challenge

[63]Since the property has been the home of Mrs Howell and Mr Beech for a number of years,

Art. 8 of the Convention

is engaged in their case, and the question arises whether an order for possession would be a proportionate means of achieving such legitimate aim as the Council had for seeking one. The threshold for establishing an arguable case that a local housing authority is acting disproportionately when seeking possession of public sector accommodation is a high one, and would only be met in a small proportion of cases: see the comments of Lord Hope in Hounslow London Borough Council v Powell

[2011] 2 WLR 287

at [35]. Moreover, the facts relied on by the occupier of the property have to be exceptional before a defence based on Art. 8 can have a real prospect of success: see the observations of Lord Neuburger MR (as he then was) in Corby Borough Council v Scott

[2012] HLR 23

at [35]. And as Etherton LJ (as he then was) said in Thurrock Borough Council v West

[2012] EWCA Civ 1435

at [25]:

“… the reasons why the threshold is so high lie in the public policy and public benefit inherent in the functions of the housing authority in dealing with its housing stock, a precious and limited public resource. Local authorities, like other social landlords, hold their housing stock for the benefit of the whole community and they are best equipped, certainly better equipped than the courts, to make management decisions about the way such stock should be administered …”

[64]It goes without saying that Mrs Howell and Mr Beech are to be distinguished from those defendants in many similar cases who were never anything but trespassers in the properties to which their cases related. Mrs Howell and Mr Beech were in the property looking after Mrs Warren. They were in law her licensees, and only lost such rights as they had to be there when Mrs Warren’s tenancy came to an end. It is also to be noted that Mr Pumphrey recommended that they should be granted a tenancy of the property. But the fact remains that they have never been assessed as needing a property of this size, and the refusal of the court to grant the Council an order for possession would be tantamount to granting Mrs Howell and Mr Beech a right of occupation to which they would not otherwise be entitled. That point was made in West at [31]:

“… even where an Article 8 defence is established, in a case where the defendant would otherwise have no legal right to remain in the property, it is difficult to imagine circumstances in which the defence could operate to give the defendant an unlimited and unconditional right to remain: comp. Pinnock at [52]. That might be the effect of a simple refusal of possession without any qualification. It is particularly difficult to imagine how that could possibly be appropriate in a case where the defendant has never been a tenant or licensee of the local authority. Otherwise, the effect of the Article 8 defence would be that the Court would have assumed the local authority’s function of allocating its housing stock, preferring the right of the defendant to remain, without any tenancy or contract, over all the other people entitled to rely on the local authority’s statutory housing duties and without the benefit of any knowledge of who those people are and their circumstances and of other relevant matters which would properly guide the local authority in housing management decisions.”

[65]In my opinion, the personal circumstances of Mrs Howell and Mr Beech are a long way from making an order for possession against them a disproportionate means of ensuring compliance with the Council’s policy of allocating properties with three bedrooms only to those who really need a property of that size. One only has to look at the circumstances of the young couple in West – in which the Court of Appeal said that the Art. 8 defence did not even reach the threshold of being reasonably arguable – to know that there is nothing exceptional about Mrs Howell’s and Mr Beech’s housing needs. That was a case such as this in which Mr West moved to a three-bedroomed house in 2007. He was joined there by his son on his birth and by his partner. His grandparents had been living there as joint tenants since 1967, though by 2007 his grandfather was in a care home, and Mr West was his grandmother’s main carer. His grandfather died in 2008 and his grandmother died in 2010. Mr West did not succeed to the tenancy, of course, because his grandmother had succeeded to the joint tenancy, and only one such succession was permitted. There were not the features in that case of childhood links to the property or the care needs of neighbours which are present here, of course, but Mr West and his partner had a young child living with them, which is not a feature in the present case.

[66]At [33], Etherton LJ said this about whether the circumstances of Mr West and his family were exceptional:

“There is … nothing exceptional in this context about the housing needs of a couple who have limited financial means and are the parents of a young child. Indeed, such a family unit is entirely typical of those with a need for social housing. They are no less typical because … they have not defaulted on any financial obligations or committed any nuisance or other wrongdoing as occupiers and they have had a long association with the locality. The fact that they have occupied the Property for some time is in itself irrelevant since Parliament has limited the number of successions to a secure tenancy however long a person’s association with, and emotional ties to, a property, and that legislative policy does not infringe Article 8.”

All of that could be said of Mrs Howell and Mr Beech.

[67]For these reasons, the defence to the Council’s claim for possession on the basis that the making of an order for possession would be a disproportionate means of achieving the Council’s objective of allocating properties of this size only to those who truly need them must fail. The defence did not even cross the high threshold of being seriously arguable.

The compatibility of the statutory scheme with Mrs Howell’s human rights

[68]The feature of the statutory scheme for succeeding to public sector tenancies on the death of the tenant which is said to be incompatible with Mrs Howell’s human rights is section 88(1)(b) which renders the tenant a successor if he or she was a joint tenant and has become the sole tenant. Section 88(1)(e) was pleaded as being incompatible with Mrs Howell’s human rights as well. That provides that a tenant is “himself a successor if … he became the tenant on the tenancy being vested in him on the death of the previous tenant”. There is no reference to section 88(1)(e) in Mr Cottle’s closing submissions, presumably because it is accepted that section 88(1)(e) does not apply when only one of two joint tenants dies, which is the situation covered by section 88(1)(b).

[69]The effect of section 88(1)(b) was to deny Mrs Howell the right to succeed to the tenancy on Mrs Warren’s death. If Mrs Warren had not been treated by section 88(1)(b) as a successor for the purposes of section 87, Mrs Howell would not have been denied by section 87 the chance of succeeding to the tenancy (if she satisfied the other requirements of succeeding to the tenancy) since there would not have been a previous succession to the tenancy. That effect of section 88(1)(b) is said to render section 88(1)(b) incompatible with Mrs Howell’s human rights in two respects. First, it amounts to a disproportionate interference with her right to respect for her home under Art. 8: the prohibition on a second or subsequent succession did not reflect any pressing social need, and that was borne out by recent amendments to the 1985 Act made by the Localism Act 2011. Secondly, the requirement amounts to an infringement of her right under Art. 14 to enjoy her right to respect for her home under Art. 8 without discrimination: a child of a single parent who did not acquire the tenancy by succession can succeed to the tenancy, but the child of a couple, one of whom has died so that their spouse acquired the tenancy by succession (assuming it to have been a joint tenancy), cannot succeed to the tenancy.

[70]This would have been an interesting argument, but it is not one which is engaged in the present case. The argument is really an attack on the compatibility of section 87 because that is the section which prohibits a second succession, and yet it is section 88(1)(b) for which the declaration of incompatibility is sought. Paraphrasing what Moses J (as he then was) said in R (on the application of Gangera) v Hounslow London Borough Council

[2003] HLR 68

at [26], the reason why Mrs Howell is not entitled to succeed to Mrs Warren’s tenancy does not depend on the fact that she is the child of a single parent. It is because her mother had become the sole tenant, and had therefore been a successor herself.

[71]But in any event, if one puts to one side both section 88(1)(b) and that part of section 87 which prohibits a second succession, Mrs Howell would still not have been qualified to succeed to the tenancy, even though she was unquestionably occupying the property as her only or principal home at the time of Mrs Warren’s death. There are three reasons for that. First, if she was to succeed to the tenancy, she would have had to have been residing with Mrs Warren throughout the 12 months ending with Mrs Warren’s death. That is the effect of section 87(b). Mrs Howell was not. For the last six months of Mrs Warren’s life, she and Mrs Howell were living apart. Mrs Warren was living at the care home while Mrs Howell was living at the property. Secondly, once Mrs Warren had moved out of the property and into the care home, her tenancy of the property ceased to be a secure one. That was because she could no longer satisfy the tenant condition in section 81, namely that she occupied the property as her only or principal home, her continuing to satisfy that condition being one of the requirements for her tenancy to continue to be a secure one by virtue of section 79. That meant that there was no longer a secure tenancy of the property in existence at the time of Mrs Warren’s death to which Mrs Howell could succeed. Thirdly, not only had Mrs Warren’s tenancy of the property ceased to be a secure one. Her tenancy had come to an end well before her death on the expiration of the notice to quit.

[72]Mr Cottle sought to overcome these problems by relying on the limited circumstances in which a secure tenancy may be assigned. Section 91(3)(c) permits a secure tenancy to be assigned in the case of “an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment”. The argument is, I think, that if section 88(1)(b) was declared to be incompatible with Mrs Howell’s human rights, and if legislative effect was subsequently given to such a declaration, an assignment of the tenancy to Mrs Howell during Mrs Warren’s lifetime would have been effective.

[73]That would have been correct if the assignment had taken place before Mrs Warren had moved into the care home, because Mrs Warren would still have been a secure tenant then, and Mrs Howell would have been living in the property as her only or principal home, as well as with Mrs Warren for the twelve months ending with the assignment. The argument breaks down because there was no such assignment. In the absence of such an assignment which would have been effective but for section 88(1)(b), section 91(3)(c) cannot help Mrs Howell and Mr Beech. It is said, I think, that the reason why Mrs Warren never assigned the tenancy to Mrs Howell was because Mr Pumphrey had said that that would not have been allowed: see, for example, his e-mail of 16 February 2010 to Ms Bradley in which he said that Mrs Howell and Mr Beech had “constantly” been told that the tenancy could not be assigned to Mrs Howell. But he cannot be blamed for saying that when the combined effect of sections 88(1)(b) and 87 was to prevent Mrs Howell from being entitled to succeed to the tenancy, which itself prevented Mrs Warren from assigning the tenancy to her.

Conclusion

[74]For these reasons, the various defences to the Council’s claim for possession fail. I give judgment in favour of the Council on its claim and I dismiss the counterclaim. I order Mrs Howell and Mr Beech to give up possession of the property within 28 days. There is a claim in the amended particulars of claim for damages for loss of use and occupation of the property, but Mr Jonathan Manning for the Council has never referred to it, and no evidence was called relating to it. I assume that the claim is no longer pursued, but if it is, the claim must be restored within 28 days of the handing down of this judgment.

[75]I wish to spare the parties the trouble and expense of attending court when this judgment is handed down. I leave it to the parties to see if they can agree an appropriate order for costs, including the costs which Judge Oliver-Jones QC ordered on 29 May 2012 should be determined by the trial judge. If they cannot, they should notify my clerk of that in writing within 14 days of the handing down of this judgment. I will then decide what the appropriate order for costs should be without a hearing on the basis of such written representations as the parties choose to make. If Mrs Howell and Mr Beech wish to apply for permission to appeal, their written grounds for such an application should be with my clerk by 2.00 pm on the date of the handing down of this judgment, and I will consider that application as well without a hearing. However, their time for filing an appellant’s notice will still be 21 days from the handing down of this judgment.

[76]Finally, I ought to say something about the events which have occurred since the hearing. I received the parties’ closing submissions on 10 and 14 December 2012. I considered them over the Christmas break. Mr Cottle’s submissions referred to one of the Council’s policies in a document which had been requested by the defendants’ legal team either very shortly before or during the hearing itself. I thought that the Council should have an opportunity to file evidence on the issue. That evidence was filed on 25 January 2013. Thereafter, in the course of writing this judgment, there were a number of issues on which I needed counsel’s help. I sent them notes on 28 January, 6 February and 8 February to that effect. The dates of their responses are set out on the front page of this judgment. I cannot complete this judgment without recording my personal thanks to them for making my task less difficult than it might otherwise have been, and to express my hope that although Mrs Howell and Mr Beech will now have to move they will find accommodation which is suitable for their needs and in which they can have a sense of pride.