Redevelopment — Home loss payment — Respondent council redeveloping estate in which appellant tenant residing — Appellant accepting offer of alternative accommodation — Judge finding appellant not entitled to home loss payment as not displaced — Whether judge applying wrong test — Whether judge wrongly having regard to appellant’s subjective motivation — Section 29(1)(c) of Land Compensation Act 1973 — Appeal dismissed
The appellant, N, occupied accommodation on a Scarborough estate as a secure tenant of the respondent council. She had previously applied to be rehoused. When the council decided to redevelop the area, they gave an undertaking to all resident tenants that they would be rehoused in the area, and type of accommodation, of their choice. The scheme received the widespread support of the tenants, including N. The council subsequently offered, and N accepted, the secure tenancy of a property in one of the areas that she had chosen as being suitable for relocation.
N later brought proceedings, claiming a home loss payment from the respondents, pursuant to section 29 of the Land Compensation Act 1973. Section 29(1)(c) provided that a tenant was entitled to such a payment if “displaced from a dwelling on any land… in consequence of… the carrying out of… redevelopment on the land”.
The judge stated that the question of whether N had been displaced was one of fact, the test being whether N had vacated the dwelling voluntarily. In holding that she had vacated voluntarily, he placed emphasis upon his findings that she had wanted to be rehoused, and that she, and others, had welcomed the proposals. He accordingly dismissed the claim.
N appealed. She contended, inter alia, that the judge had erred in: (i) substituting a voluntary removal test for the displacement test; and (ii) having regard to the subjective motivation of N, when displacement was required to be assessed objectively, with the result that he had treated factors immaterial to that issue as determinative. In relation to the latter point, N submitted that the central issue was not her motivation for moving, but whether she had had the choice of remaining in her old accommodation.
Held: The appeal was dismissed.
The judge had been correct to approach the displacement issue by considering whether N had moved voluntarily: see Follows v Peabody Trust (1983) 10 HLR 62 per Cumming-Bruce LJ at p69. The word “displacement” had intrinsic overtones of compulsion, and a voluntary move did not, accordingly, amount to displacement. It was not necessary that the element of compulsion came from a possession order, as that situation was dealt with by section 29(1)(3)(e) of the 1973 Act. All that was required was sufficient action or persuasion by the landlord — as would be the case if the tenant had been told to go, or had been told that he would have to go: see Caplan v Greater London Council (1980) 5 HLR 104 per Brandon LJ at p109 and Follows per Cumming-Bruce LJ at p73. The mere fact of redevelopment, in the absence of any such inducement, was not sufficient to create entitlement to a home loss payment.
The test of displacement was an objective one: see Follows at p69. The judge had correctly directed himself when applying the displacement test to N, and had not treated her subjective motivation as determinative. Since displacement was a question of fact, no definition in principle could be laid down, and each case was to be decided upon its own particular facts. The judge’s findings of fact in relation to N had been clear. There was no finding that N had been told to vacate; she had vacated because she wanted to move to a better house in a better area. A tenant who wished to move, and had their wish granted, could not be said to have been displaced. The judge had not based his decision solely upon N’s previous application for a transfer, although that application was relevant. It was also relevant that N and others had supported the redevelopment scheme. There was no question of her reluctantly bowing to the inevitable: Caplan and Follows distinguished.
Jan Luba QC and Liz Davies (instructed by the solicitor to Shelter) appeared for the appellant; Christopher Baker (instructed by the solicitor to Scarborough Borough Council) appeared for the respondents.
Sally Dobson, barrister
