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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Birmingham City Council v Beech & Anor [2013] EWHC 518 (QB) (15 March 2013) URL: https://www.bailii.org/ew/cases/EWHC/QB/2013/518.html Cite as: [2013] EWHC 518 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Birmingham City Council |
Claimant |
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- and - |
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(1) Janet Beech (sued as Janet Howell) (2) Michael Beech |
Defendants |
____________________
Mr Stephen Cottle (instructed by Eric Bowes & Co) for the Defendants
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
____________________
Crown Copyright ©
Mr Justice Keith:
A. Introduction
B. The relevant facts
"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 bestuse
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 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."
"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.
C. The ending of the tenancy
"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.
"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.
"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."
"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.
"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.
"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."
D. The claim for possession: the public law challenge
E. The claim for possession: the human rights challenge
"… 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 …"
"… 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."
"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.
F. The compatibility of the statutory scheme with Mrs Howell's human rights
G. Conclusion