Rent Act 1977 — Case 9 in Schedule 15 and para 1 of Part III of Schedule — ‘Greater hardship’ — Onus on tenant to establish greater hardship — Difficult position of court where there is evidence of hardship on both sides — Landlord in this case reasonably required dwelling-house as a residence for his two sons who had unsatisfactory accommodation but who between them earned £165 per week — Tenant a man of 57, in poor circumstances, drawing housing benefit of about £20 per week and living on supplementary benefit of about £31 per week — The dwelling-house in question was a maisonette consisting of a living-room, two bedrooms, a kitchen, a bathroom and an outside toilet — Tenant had two Alsatian dogs to which he was attached — Once he was evicted he would not be able to claim to be rehoused by the local authority as a matter of right — He had been a tenant in the subject premises for some 15 years — The county court judge decided against the tenant and granted possession to the landlord — His decision was attacked by the tenant on appeal, but it was conceded, in the light of the authorities, that in order to succeed he had to show that no reasonable judge could have reached the decision of the county court judge or that he failed to take into account relevant factors or drew improper conclusions from facts which were put in evidence before him — In effect the appellant would have to show that the judge’s decision was perverse — The Court of Appeal ‘with some regret’ were unable to reach that conclusion — Although the judge had not dealt specifically with the consequences of a possession order on the tenant, the possibility that he might have nowhere to live, the court felt sure that, having regard to the submissions made, the judge had this aspect in mind — Comments made by the judge on the amount of the tenant’s income spent on smoking and on his ownership of two dogs were irrelevant, but the court did not think that the judge had decided the balance of hardship on these matters — The court might themselves have come to a different conclusion on the case from that of the judge, but, unless he had gone wrong in law, his decision on the balance of hardship was conclusive — Appeal dismissed
The following
cases are referred to in this report.
Chandler v Strevett [1947] 1 All ER 164, CA
Coplans v King [1947] 2 All ER 393, CA
Kelley
v Goodwin [1947] 1 All ER 810, CA
This was an
appeal by William Chalmers Blee, defendant, tenant of 56a Northfield Avenue,
London W13, against the decision of Judge Barr, at Brentford County Court,
granting possession of the dwelling-house to the plaintiff landlord, Brian
George Hodges.
I S Partridge
(instructed by Russell-Cooke Potter & Chapman) appeared on behalf of the
appellant; J S Fisher (instructed by R M Bull & Co) represented the
respondent.
Giving the
first judgment at the invitation of O’Connor LJ, STOCKER LJ said: This is an
appeal by the defendant, Mr William Chalmers Blee, against the decision of His
Honour Judge Barr made on February 27 1987 in the Brentford County Court
whereby it was ordered that the plaintiff have possession of premises known as
56a Northfield Avenue, London W13.
The premises
in question were a maisonette consisting of a living-room, two bedrooms, a
kitchen, a bathroom and an outside toilet. The appellant, who is 57 years of age,
had lived there for quite a considerable time, since 1972. He has two Alsatian
dogs who were accommodated with him in those premises and for whom he had a
considerable attachment, having owned them for some five years. He lives in
somewhat reduced circumstances, living upon supplementary benefit of about £31
per week and also drawing housing benefit from which he paid the rent, which
was about £20 per week at the material time.
The ground
upon which the landlord, the plaintiff, sought possession of the premises was
under Case 9 of Schedule 15 to the Rent Act 1977, which entitled, subject to
the proof of requisite matters, a landlord to obtain possession of a
dwelling-house where it is reasonably required by the landlord for occupation
as a residence for either himself or any son or daughter of his over the age of
18. He required those premises for his two sons, Mark, who was 27 years of age,
and Grant, who was 24 years of age.
Mark was
employed by his father with a take-home pay of about £80 per week but was, we
understand, subject to a requirement to make certain payments in respect of a
child of his estranged wife. Grant, who was living at the material time in a
single room in business premises, apparently a warehouse, with his girlfriend,
earned some £85 per week. Grant lived in that room, which was uncomfortable to
say the least. It was damp, the only toilet facilities were those common to the
other users of the warehouse, and it required electric heating most of the
time. Mark lived with friends but from time to time shared that room with his
brother and his brother’s girlfriend as his accommodation.
It was in
those circumstances, as it would seem to me properly, conceded that the
premises were reasonably required by the plaintiff for occupation by his two
sons. It should perhaps be pointed out that the plaintiff owns a number of
other properties from which he derives a very substantial income. It so
happened that, some time before the
reasonably feasible for his sons to live there with him having regard to their
employment in the local area in which the premises the subject of this claim
are situated. Mark, it seems, was his father’s representative with regard to
the day-to-day administration of the various properties.
The issue
before the learned judge accordingly turned upon the terms of para 1 of Part
III of Schedule 15 to the Act, which provides:
A court shall
not make an order for possession of a dwelling-house by reason only that the
circumstances of the case fall within Case 9 in Part I of this Schedule if the
court is satisfied that, having regard to all the circumstances of the case,
including the question whether other accommodation is available for the
landlord or the tenant, greater hardship would be caused by granting the order
than by refusing to grant it.
In addition to
that issue, of course, the learned judge had to consider whether in all the
circumstances it was reasonable to make the order.
The issue
before the court was one which is generally and colloquially known in this type
of case as a ‘greater hardship’ case. The learned judge, having heard the
evidence of the plaintiff, his sons and the defendant, came to the conclusion
that the defendant had not discharged the onus upon him of establishing greater
hardship on his part. It was therefore the familiar, and usually very
difficult, task imposed upon a county court judge of deciding where the balance
of hardship lay.
The learned
judge expressed his conclusion in a short judgment, the relevant part of which
is in these terms. Having set out the fact that it was a claim for possession
under Case 9, he continued:
. . . At the
end of the day it is conceded, and in my judgment quite rightly so, that the
premises are reasonably required. This leaves the question of whether greater
hardship will be caused to the tenant by making an order for possession than
will be caused to the Plaintiff by refusing to do so . . .
This is the
case where, in my view, there is hardship on both sides. Mr Blee’s finances are
poor and at present so are those of the two young men. In the context of the
present accommodation market the circumstances are extremely poor. There will
be hardship either way. It is a difficult exercise.
He considered
factors from the defendant’s point of view including the fact that he had been
resident in the premises since 1972 and had therefore been a tenant for some 15
years, that he owned the two Alsatian dogs of which he was fond and that,
having regard to his impecunious state, he would inevitably suffer hardship. On
the other hand, the learned judge found that the landlord reasonably required
the premises. He said:
. . . Mark
and Grant are his sons and hardship will fall on the sons who are living in
quite unsatisfactory conditions if an order is refused.
The learned
judge then made some comments about the financial position of the defendant to
which I will return shortly.
The grounds of
appeal in this case are set out in the notice of appeal in some detail.
Basically they are these: the learned judge erred in finding that the defendant
had failed to prove that greater hardship would be caused by the making of an
order than would be occasioned by its refusal and he failed to give any or any
sufficient consideration to a number of facts which are set out in support of
that general contention. It is unnecessary, as it seems to me, to go through
the detail of each one of those submissions, said to support the general proposition
that the learned judge either failed to take into account relevant factors or
incorrectly drew conclusions from other factors.
Mr Partridge,
who has ably and succinctly put the basis of his appeal before us, was
constrained in the end to concede that, in accordance with the relevant
authorities, he had to show, in order to succeed upon this appeal, that no
reasonable judge could have reached the conclusion which this learned judge
reached or that the judge failed to take into account relevant factors or drew
improper conclusions from facts which were put in evidence before him. It may
perhaps be an over-simplification to say that his argument really involves the
proposition that he has to demonstrate that the learned judge’s conclusion can
be said to be perverse.
I would not
propose to go into the relevant legal principles and authorities in any
particular detail. They are certainly well known. An appropriate starting point
is the well-known decision of this court, and one which is very often cited, in
Coplans v King [1947] 2 All ER 393. The headnote reads:
The decision
of the county court judge, when considering whether or not to make an order for
the possession of a house within the Rent Restrictions Acts, with regard to the
balance of hardship under the proviso to sched I [now 15] . . . is final and
cannot be made the subject of appeal to the Court of Appeal.
Lord Greene,
then the Master of the Rolls, after considering a judgment of Scott LJ in Chandler
v Strevett [1947] 1 All ER 164, concluded his judgment in the
following way:
. . . Of
course, if in a case there is evidence of hardship on one side and none on the
other, the county court judge can come to only one conclusion, and if he finds
hardship where the facts are not sufficient to constitute hardship in law — for
example, something trivial, like the absence of a view of a neighbouring hill,
river, tree, or something pleasant of that kind — he makes an error in law,
but, once there is evidence which in law can amount to hardship on two sides, Parliament
has deliberately made the county court judge the conclusive judge of the fact
which is the greater hardship. So, with great deference to what Scott LJ said,
I find myself constrained to disagree with the principle which I understand him
to have suggested in that case.
That case
therefore is authority for the proposition that the county court judge is the
conclusive judge of the facts on the issue of the balance of hardship in any
given case, subject of course to law.
Certain other
authorities have been usefully cited to us in elaboration of or comment upon
that basic proposition. One of them is Kelley v Goodwin [1947] 1
All ER 810. At p 812 Lynskey J said:
. . . That
being so, we have to apply what, in my view, is a correct statement of the law
in Smith v Penny . . . in which Somervell LJ said . . .
‘It is
necessary for the tenant to show that the county court judge misdirected
himself or that he based his judgment on some finding of fact of which there
was no evidence.’
A little later
in the same judgment he said:
. . . It
seems to me also that, on this question of hardship, the judge was entitled to
take into account the fact that the tenant had taken no real steps to try and
find other accommodation or no real steps to buy a house.
He therefore
came to the conclusion that in that case:
. . . there
was ample evidence from which the county court judge could draw the inference
that he did. We ought not to interfere unless we can say there was no evidence
from which he could draw that inference or that he misread the evidence in some
way in drawing the inference that he sought to do, and therefore, the appeal
should be dismissed.
Other cases
have been cited before us on similar lines upon which the duty of the county
court judge in respect of this issue of greater hardship has been further
considered.
Mr Partridge
accepts the difficulty with which he is faced on this appeal having regard to
those well-known authorities. Fundamentally he says, by way of appeal, that the
learned judge did fail to take into account certain important factors. The
first of those factors is that he apparently failed to take into account — and
it is correct that the learned judge did not specifically refer to — the
consequences of the order that he in fact made. The consequences so far as the
defendant was concerned would appear to be that, once he is evicted from the
premises in which he now lives, he will not be able to claim as a matter of
right to be rehoused by the local authority, since the relevant factors which
would constrain an authority to find him such accommodation do not exist.
Accordingly, once evicted he may have nowhere to live.
On the other
hand it is argued that the two sons, Mark and Grant, are both in receipt of
reasonable incomes totalling between them something of the order of £160 a week
and that, accordingly, were they to seek accommodation jointly, their chances
of finding something suitable are not so restricted as those of the defendant.
That factor is
correct so far as it goes. We are here, however, dealing with a very
experienced county court judge to whom full argument was not addressed, and
although he does not in terms advert to that specific aspect of the problem, in
my view he clearly must have had in mind what the consequences would be of any
order that he made, particularly having regard to the submissions which were
made to him by counsel upon that issue.
A criticism is
made of the learned judge’s judgment on the ground that he took into account or
appeared to take into account a factor which was irrelevant (this is the
passage to which I earlier said I would later refer). The learned judge said:
Undoubtedly
the Defendant’s financial position is not helped by his addiction to smoking
costing in excess of £10 per week which he pays out of supplementary benefit of
£31 per week; this is an unreasonable proportion of his expenditure. Also the
fact that he owns two dogs is of his own choosing although of long standing.
It is
submitted by Mr Partridge on behalf of the defendant that those factors are
irrelevant and appear, or might appear, to give the impression that the learned
judge was giving improper weight to matters to which no weight should have been
given at all. The argument is that the £31 a week supplementary benefit which
the
accommodation. The rental for his accommodation is paid out of housing benefit,
which he draws from the state, and what he does with his supplementary benefit
is his affair and cannot in any event be relevant to his problem of acquiring
alternative accommodation. He makes a similar comment with regard to the dogs,
saying that the dogs have lived with the defendant for many years and that it
is a factor of hardship upon him that he cannot obtain accommodation partly
because landlords do not wish to have dogs upon the premises. It is one of the
factors which has inhibited the defendant, we are told, from obtaining
somewhere else to live, because landlords object to the dogs and are also
unwilling to take as a tenant somebody whose rent will be paid by housing
allowance.
The comment
which Mr Partridge makes seems to me to be correct: strictly speaking and as a
matter of logic there is no relevance in the fact, so far as greater hardship
is concerned, that the defendant spends one-third of his income on cigarettes.
The learned judge perhaps expressed his reaction to that situation more
strongly than is justified as a matter of comment. It does not appear to me,
however, that the judge decided the balance of hardship upon either of those
factors.
As has been
accepted by Mr Partridge, his task in persuading this court that an experienced
county court judge, having correctly concluded that there was hardship on both
sides, has made some error of law or has drawn the wrong conclusions from the
facts proved in evidence before him is a very difficult one having regard to
the authorities which have already been cited. They really amount to the
proposition that it has to be established that the judge’s conclusion was one
which no reasonable judge could have reached having regard to all the evidence.
Speaking for
myself, I might have come to a different conclusion from that which the learned
judge reached having regard to all the matters which Mr Partridge has urged
before us. However, the fact is that the task of deciding the balance of
hardship in cases such as this is specifically imposed upon the county court
judge, and the opinion which any member of this court or any other judge might
have had when confronted with the same facts is not in any way decisive or even
relevant for the purposes of this appeal. The question is, ‘Was there anything
in the learned judge’s decision or the way in which he expressed it indicative
of the fact that he must have reached a conclusion which no reasonable judge
could properly have reached having regard to all the facts deposed to in
evidence before him?’
For my part,
though with some regret, I have come to the conclusion that it is not possible
to say that this judge reached a conclusion which no reasonable judge could
have reached: nor do I find that it can be said that his decision was in any
way perverse. Those factors are sufficient in my view to conclude this appeal
against the appellant, and for those reasons, though as I say with some regret,
in my view this appeal should be dismissed.
O’CONNOR LJ
agreed that the appeal should be dismissed for the reasons given by Stocker LJ
and did not add anything further.
The appeal
was dismissed with costs, such order not to be enforced without the leave of
the court; legal aid taxation of the appellant’s costs was ordered; appellant
to give up possession of the property one month from date of judgment.
