|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Merton v Williams  EWCA Civ 980 (17 July 2002)
Cite as:  All ER (D) 263,  HLR 257,  EWCA Civ 980
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY
COURT (HIS HONOUR JUDGE ELLIS)
(ON APPEAL FROM DISTRICT JUDGE MILLS)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANCE
SIR MARTIN NOURSE
| THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF MERTON||Appellant|
- and -
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robert Latham (instructed by Messrs Jacqueline Everett & Co.) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Mance:
YOUR FAILURE TO TAKE UP OCCUPATION OF THE PROPERTY;
RENT ARREARS OF £690.16 AS AT CLOSE OF ACOUNTS ON 25TH JUNE 2000”.
“If you need advice about this Notice and what you should do about it, take it as quickly as possible to a Citizen’s Advice Bureau, a Housing Aid Centre, a Law Centre or to a Solicitor. You may be able to receive Legal Aid, but this will depend upon your personal circumstances.”
“This year their [sic] were substantial arrears of rent outstanding on your account and I therefore believe that the Notice was properly served on you. In the circumstances I am unwilling to withdraw it and suggest that you contact Samantha Caird, your Housing Officer, urgently to make arrangements to clear your account.”
“…. I went to court on my own. I was not represented by a duty solicitor or anyone else and as far as I am able to remember the housing officer presented the case herself and was not represented by a barrister or a solicitor. I think that she explained to the judge that was [sic] an introductory tenancy and that there were arrears of rent. She did not say anything about me not living there. Everything happened very quickly. I explained to the judge about the housing benefit but I did not know really what to say. The judge told me that he did not have any option but to make a possession order.”
“On the basis of the information available, the Council concludes that you are not in residence at the address and not entitled to Housing Benefit. Your claim will therefore be cancelled.”
Mr Williams then telephoned the Council on 20th June and Mr Glover attended the flat at 8.45 a.m. on 22nd June 200 and found Mr Williams scraping wallpaper off the wall in the kitchen, in which there was a washing machine, but no cooker, fridge, or freezer and no furniture or floor covering at all.
“Mr Williams readily admitted that he had not yet moved in, but said that this was because he had been sick for the last couple of weeks with shingles, and also because he had only recently received his Social Fund Loan from the DSS”.
Mr Glover then records that he told Mr Williams that he had checked with the DSS, and that they had advised that they had sent his loan and grant on 18th and 19th April 2000. The note goes on to recount further conversation in the course of which Mr Glover regarded Mr Williams as “changing his story”. Mr Glover asked Mr Williams to provide documentary evidence for items paid for (with a view to occupation), and Mr Williams agreed to call at the office with these. The note also records:
“I explained to Mr Williams that HB was only payable when a claimant was in residence at the address he or she was claiming for. He readily accepted this and did not seem at all bothered that he might not be paid”.
“128. - (1) The court shall not entertain proceedings for the possession of a dwelling-house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with this section.
(2) The notice shall state that the court will be asked to make an order for the possession of the dwelling-house.
(3) The notice shall set out the reasons for the landlord's decision to apply for such an order.
(4) The notice shall specify a date after which proceedings for the possession of the dwelling-house may be begun.The date so specified must not be earlier than the date on which the tenancy could, apart from this Chapter, be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.
(5) The court shall not entertain any proceedings for possession of the dwelling-house unless they are begun after the date specified in the notice of proceedings.
(6) The notice shall inform the tenant of his right to request a review of the landlord's decision to seek an order for possession and of the time within which such a request must be made.
(7) The notice shall also inform the tenant that if he needs help or advice about the notice, and what to do about it, he should take it immediately to a Citizens' Advice Bureau, a housing aid centre, a law centre or a solicitor.
129. - (1) A request for review of the landlord's decision to seek an order for possession of a dwelling-house let under an introductory tenancy must be made before the end of the period of 14 days beginning with the day on which the notice of proceedings is served.
(2) On a request being duly made to it, the landlord shall review its decision.
(3) The Secretary of State may make provision by regulations as to the procedure to be followed in connection with a review under this section.
Nothing in the following provisions affects the generality of this power.
(4) Provision may be made by regulations-
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision, and
(b) as to the circumstances in which the person concerned is entitled to an oral hearing, and whether and by whom he may be represented at such a hearing.
(5) The landlord shall notify the person concerned of the decision on the review.
If the decision is to confirm the original decision, the landlord shall also notify him of the reasons for the decision.
(6) The review shall be carried out and the tenant notified before the date specified in the notice of proceedings as the date after which proceedings for the possession of the dwelling-house may be begun.”
“However, no request was made to the county court judge to adjourn the case so that an application for judicial review could be made, and the argument proceeded on what I have called the macro level. It seems to me that it is too late now to apply for permission to move for judicial review. I should add that on the facts as presented to us, I have no reason for thinking that permission to move for judicial review would even have been granted.”
“What I would stress is that where a review has taken place, in a case in which the council is seeking to take possession, it should be the norm for the council to spell out in affidavits before the county court judge, how the procedure was operated in the individual case dealing with the degree of independence of the tribunal from persons who took the original decision, the way in which the hearing was conducted and the reason for taking the decision to continue with the proceedings. In that way the judge will have the information on which he can take an informed view as to whether the matter should be adjourned to allow for an application to be made for judicial review. In this way also s.7 of the 1996 Act can be complied with so that the question whether it is arguable that any breach of human rights occurred can be considered at the county court stage.”