Housing Act 1969, section 68 and Schedule 5 — House purchased at site value in pursuance of slum clearance scheme — Question of entitlement to the owner-occupier’s supplement — Appeal from decision of Lands Tribunal — Whether qualifying condition of occupation for not less than two years before the making of the compulsory purchase order was fulfilled — During part of qualifying period claimant let house to another family but with an arrangement for claimant’s son to sleep in the back bedroom — Whether son occupied part of the house being a member of the family of father who was the owner — Lands Tribunal, who rejected the claim, held to have erred by asking the wrong question, namely, was the claimant in actual or constructive occupation of part of the house? — The room was occupied by a member of the claimant’s family and the claimant was entitled to the supplement — Appeal allowed
This was an
appeal by Mit Singh by case stated from a decision of the Lands Tribunal
rejecting the appellant’s claim to an owner-occupier’s supplement following the
acquisition at site value of the appellant’s house at 34 Yates Street, Derby,
by Derby City Council. The acquisition was the result of a compulsory purchase
order made in pursuance of a slum clearance scheme.
G M Marriott
(instructed by Victor Rose & Co, of Manchester) appeared on behalf of the
appellant; A P Fletcher (instructed by the Solicitor to Derby City Council)
represented the respondent council.
Giving the
first judgment at the invitation of Waller LJ, SIR PATRICK BROWNE said: This is
an appeal by way of case stated from a decision of the Lands Tribunal given on
November 27 1978. The case related to a claim by the present appellant to what
is called the owner-occupier supplement in respect of the compulsory purchase
of his house.
There were two
issues in the court below, the Lands Tribunal. The first issue was whether the
Lands Tribunal had jurisdiction to consider the case, but the submission that
it had not was rejected by the tribunal and there is no cross-appeal about it.
The other issue, and the issue which this court has had to consider, was
whether, on the facts of this case, the claimant was entitled to the
owner-occupier supplement.
The house to
which the case related was a house at 34 Yates Street in Derby. By the Derby
Borough Council (Roe Street) Compulsory Purchase Order 1975, which was an order
made in pursuance of a slum clearance scheme, a compulsory purchase order was
made in respect of that house on June 30 1975. Notice to treat was given on April
14 1977 and the claim was made on July 6 1977. The figures of value were
agreed. In the ordinary way, of course, where property is acquired under a slum
clearance scheme, the owner gets only site value and in this case the site
value was agreed at £135. It was also agreed that he was entitled to £100
compensation for disturbance, and it was agreed that, if he was entitled to the
owner-occupier supplement, the figure was £2,765. The Lands Tribunal rejected
his claim for the supplement and he appeals to this court.
The relevant
statutory provisions are section 68 of and Schedule 5 to the Housing Act of
1969. Section 68 provides that:
(1) The provisions of Schedule 5 to this Act
shall have effect with respect to certain payments to be made in respect of
owner-occupied houses in certain circumstances; and where a payment under that
Schedule falls to be made with respect to a house no payment with respect
thereto shall be made under paragraph 4 of Schedule 2 to the Act of 1957.
Turning to the
Fifth Schedule, paragraph 1(1) provides:
Where a house
has been purchased at site value in pursuance of a compulsory purchase order .
. . then, if (a) the relevant date is later than April 23 1968; and (b) on the
relevant date and throughout the qualifying period, the house was wholly or
partly occupied as a private dwelling and the person so occupying it (or, if
during that period it was so occupied by two or more persons in succession,
each of those persons) was a person entitled to an interest in that house or a
member of the family of a person so entitled; the authority concerned shall
make in respect of that interest a payment of an amount determined in
accordance with paragraphs 2 and 3 of this Schedule.
Paragraph 5
defines the relevant date and also the qualifying period. The qualifying period
in the present case is the two years before the making of the compulsory
purchase order on June 30 1975, that is July 1 1973 to June 30 1975.
The Lands
Tribunal stated the case and, in accordance with the usual practice, a copy of
the decision was annexed. The question stated was:
The question
upon which the decision of the Honourable Court is desired is whether on the
facts proved or admitted I was entitled in law to hold that neither the
Claimant nor any member of his family occupied part of 34 Yates Street, Derby
as a private dwelling for the whole of the qualifying period (July 1 1973 to
June 30 1975) for the purposes of paragraph 1(1)(b) of Schedule 5 to the
Housing Act 1969.
Apparently
there was an agreed statement of facts but, nevertheless, two witnesses were
called, two sons of the claimant. The decision says this:
The history is
not in dispute and is as follows. In 1964 the claimant purchased no 34 which
had only two bedrooms. He lived in it with his family Some eight years later
his daughter married; she and her husband lived with the claimant in no 34. The
accommodation was found to be insufficient and so, on October 25 1973, the
claimant bought and moved into another house 64 St Giles Road, Derby (‘no 64’),
a house with three bedrooms, but that house proved to have insufficient
accommodation for the needs of himself and his family. There were negotiations
between the claimant and a Mr Adjei for the purchase by Mr Adjei of no 34 but
these came to nothing because of the pending acquisition of no 34 by Derby
City. The claimant therefore let no 34 to Mr Adjei with an arrangement that Mr
Sukhder Singh Bains (a son of the claimant) should continue to sleep in the
back bedroom. In September 1975 the claimant obtained a possession order for no
34 against Mr Adjei and when Mr Adjei left. Mr Kesar Singh Bains (another son)
went to live in no 34 with his younger brother.
The following
are taken from an agreed statement of facts: Mr Sukhder Singh Bains slept in
the back bedroom of no 34 but in the morning he left for no 64 to have his
breakfast. He was then not seen at no 34 until about 8.30 to 9 pm, on odd
occasions until about 9.30 pm when he went to bed there. Sometimes he sat with
Mr Adjei and his family and watched television in the back room on the ground
floor.
As I have
said, the qualifying period started on July 1 1973. Accordingly, apparently
until October 1973, the first part of the qualifying period, the claimant and
his family were living in this house. He then moved with his family, except the
younger son, to the house which he bought at 64 St Giles Road leaving, as I
understand it, his son still sleeping at no 34. Then he let the house to Mr
Adjei and there is annexed to the case stated the particulars of claim when Mr
Singh eventually claimed possession, in which it is alleged that the house was
let on a weekly tenancy from November 1973; so it looks as if for some period,
perhaps only a short period, the son was in no 34 by himself before the Adjeis
moved in. The Adjeis then stayed in the house until after the end of the
qualifying period. When they went out and the other son of Mr Singh came back,
it was after the end of the qualifying period.
Going back to
the case stated, the member of the tribunal dealt with the jurisdiction point
and then he came on to this point:
Mr Yates [who
was the solicitor who appeared for the council] pointed to the fact that
neither the welfare visitor’s report nor the application for a municipal
dwelling mentioned the arrangement under which the claimant’s son slept in the
back bedroom. The particulars of claim of June 3 1975 [those are the
particulars of claim in the possession case] referred to the ‘dwellinghouse’
(not to part of it); the plaintiff claimed possession of ‘the said
dwellinghouse’, mesne profits, damages and costs. The extract from the rent
register showed the entry ‘None’ under the heading ‘Other terms of tenancy
taken into consideration in the determining fair rent’.
The decision
then sets out paragraph 1(1) of Schedule 5 to the Housing Act 1969 and went on:
Mr Yates
agreed that the claimant was entitled to an owner-occupier’s supplement if the
facts fell within paragraph 1(1)(b). There was no dispute with regard to (a).
He submitted that the claimant did not occupy the subject premises physically
throughout the whole of the qualifying period. The issue was: ‘Was the back
bedroom occupied by the claimant through the arrangement he had made with Mr
Adjei for his son?’ and in this connection he referred me to Newcastle City
Council v Royal Newcastle Hospital [1959] 1 All ER 734. At p 736 the
Master of the Rolls said: ‘Occupation is a matter of fact and only exists where
there is sufficient measure of control to prevent strangers from interfering’.
Mr Yates referred also to the arguments concerning occupation in Reeve.
That, I think,
was a previous case in the Lands Tribunal to which we were not referred in this
court.
He submitted
that a 12-year-old boy could not exercise control over part of the subject
premises in such a way as to amount to occupation. He distinguished the
position here from the position in Hunter v Manchester City Council [1975]
2 All ER 966 where the landlord had retained part of the premises letting only
the ground floor. Here, the whole of the subject premises had been let subject
to an arrangement for the son to continue to sleep in the back bedroom, that
being supported by the particulars of claim of June 3 1975 and the entry in the
rent register. He submitted that the claimant did not exercise effective
control over no 34. If the claimant had had effective control over no 34, it
would not have been necessary to recover possession against Mr Adjei.
Counsel for
the claimant submitted that I should consider the purpose and intent of the
legislation. The intention here was the same as the intention in Hunter
— to retain part of the subject premises. The whole of the subject premises had
been let save the back bedroom. He referred me to Stevens v High
Wycombe Corporation [1961] 2 All ER 738 and submitted that the claimant
occupied part of the subject premises through his son who had control by means
of a key and who used the wc and bathroom. There was thus constructive
occupation by the claimant. He drew my attention to p 2641 of volume 1 of the Encyclopedia
of Housing which was referred to in Hunter. The object of the
legislation was to ‘mitigate hardship to those persons who have been driven by
the extreme shortage of housing to buy unsound and substandard dwellings to
live in themselves’. The claimant fell into that category and there had been
occupation throughout the relevant period.
Having regard
to the entry in the rent register and to the proceedings taken by the claimant
against Mr Adjei it seems to me that the claimant let the whole of the subject
premises to Mr Adjei although there was an arrangement under which the
claimant’s son continued to sleep in the back bedroom. It was not on that
evidence a letting of part of the subject premises, the remainder being
reserved by the claimant for occupation by himself or by his family and in this
respect the facts differ from those in hunter. The claimant’s son slept in the
back bedroom for the whole of the qualifying period of two years but for most
of that period Mr Adjei was a tenant of the whole. While no 34 was let to Mr
Adjei, it seems to me that the son’s status was somewhat similar to that of a
lodger taken in by Mr Adjei. In that the son only slept in the room at night,
his position was closer to that of Mr Cox in the comic opera Cox and Box than
to a lodger in the usual sense of the word. There was no evidence as to any
other use of the bedroom. It was Mr Adjei who had real control over no 34
during the period of his tenancy. Taking all the evidence into account I do not
see that the claimant can be said to have been in occupation of the back bedroom
during the time his son slept there while Mr Adjei was tenant of the whole.
The claim to
be paid an owner-occupier’s supplement therefore fails.
Mr Marriott,
for the claimant, submits that the son occupied part of this house within the
meaning of paragraph 1(1)(b) of the schedule. Mr Fletcher, for the acquiring
authority, submitted that the whole house was let to Mr Adjei and, therefore, prima
facie at any rate, he was in occupation of the whole house. Mr Marriott
told us in reply that his primary submission to the tribunal was the same as
his submission in this court; but, alternatively, he submitted that, if the son
did not occupy that part, then the father was in constructive occupation
through his son.
It appears
from the passage I have already read that the tribunal considered the case on
the basis that it was the claimant who was said to be in occupation of the back
bedroom. I will just read again the sentence: ‘Taking all the evidence into
account I do not see that the claimant can be said to have been in occupation
of the back bedroom during the time his son slept there . . .’ and that,
presumably, is referring back to what appears to be Mr Yates’ argument where it
is said, and this I understand Mr Yates’ submission: ‘The issue was: ‘Was the
back bedroom occupied by the claimant through the arrangement he had made with
Mr Adjei for his son?” and there is a reference somewhere, I think, to
constructive occupation by the claimant.
Various
authorities were cited to us, but the only one to which I think I need refer is
the case referred to in the decision of Hunter v Manchester City
Council [1975] QB 877. There the claimant was the owner of a house which
had been demolished in a slum clearance scheme. Having heard that the scheme
was likely to come in, he bought another house and his family moved there.
Apparently on advice taken, he stayed himself in one room of the original house
and let the rest of the house to somebody else. Lord Denning MR said this at
the bottom of p 881:
His wife and
seven children moved into it (the other house) on July 10 1969. But he himself
did not go with them at that stage. He was advised by an estate agent that he
had better remain in part occupation of 98 Stockton Street. So he let the
downstairs of 98 Stockton Street to a Mrs Grenyion, and he, Mr Hunter,
continued to occupy one of the upstairs rooms ‘where he slept and sometimes his
wife visited him there.’ That continued
until July 1971.
So it looks as
if the physical facts in that case were very much the same as in the present
case but, of course, and Mr Fletcher says this makes all the difference, there
the claimant who stayed on in the house was the owner of the house. It seems to
me that, at first sight anyhow, the question of title is really irrelevant to
the question we have to consider, because paragraph 1(1)(b) itself assumes that
somebody may be the occupier for relevant purposes even though he himself had
no interest in the premises; if the house is wholly or partly occupied as a
private dwelling by a member of the family of the person entitled to an
interest, then the owner is entitled to the supplement. That seems to me to
assume that the person who is actually in occupation has no legal interest in
the premises.
With all
respect to the member of the tribunal, it seems to me that he asked himself the
wrong question in this case. This may well have been because of the form which
the argument took before him, but the question was not, ‘Was the claimant (the
father) in actual or constructive occupation of part of the house’ but ‘Did his
son occupy part of the house, being a member of the family of his father who
had an interest in the house because he was the owner of it?’
Giving
‘occupied’ its ordinary and natural meaning, it seems to me that, on the
particular facts of this case, the only possible answer is that this house was
partly occupied as a private dwelling by the son, being a member of the family
of his father, who was the person entitled to an interest in the house as the
freeholder. In this case
the son. If there had been any evidence of any use of the bedroom for some
other purpose by Mr Adjei or his family then different considerations might
apply and, no doubt, if that situation arises, it would have to be considered
in the future.
We were
referred to a number of rating cases and a number of cases about parliamentary
franchise, but, in my view, those cases do not really help us in this case.
Rating occupation is a very complicated conception and, so far as parliamentary
franchise cases are concerned, they depend upon the construction of other
statutes. It seems to me, as I have said, that applying ‘occupied’ in its
ordinary meaning in this case, as I think it should be applied, the claimant
was entitled to succeed and, accordingly, I would allow this appeal.
Agreeing,
BRANDON LJ said: It seems to me that the sole question which fell for decision
once the point on jurisdiction had been disposed of was whether the bedroom in
which the boy slept over the material period was, as a result of his sleeping
there, occupied by him. In my judgment, in considering whether the room was
occupied by him or not, one should interpret the word ‘occupied’ in the way
that an ordinary person would interpret it. In other words, one should give it
its ordinary and natural meaning and it seems to me that, in the ordinary and
natural meaning of the word ‘occupied’, a room which is slept in night after
night for two years by a boy of 12 is occupied by that boy.
I agree with
Sir Patrick Browne that, had there been any evidence that the room was put to
other uses during other times of the day, different questions might have
arisen. It is true there is no finding that the bedroom was not put to any
other use during other parts of the day, but there is a finding that there was
no evidence as to such other use; and it seems to me that, in the absence of
such evidence, the only inference that could be drawn was that it was not so
used. Once the right question is asked in that way it seems to me that the
answer comes quite simply.
I would also
agree with Sir Patrick Browne when he said that the authorities on other
statutes such as rating statutes and statutes relating to the representation of
the people do not assist in deciding the effect of the word ‘occupied’ in this
statute. Each of these areas of the law — the area of rating and the area of
representation of people — are special areas. In some cases rather unusual
meanings have been given to rather usual words; but it does not seem to me
that, in this case, we should have any regard to them.
I would,
therefore, also allow the appeal.
Agreeing with
both judgments, WALLER LJ said: I would only add this because it seems to me
that, when one looks at the facts set out in the case and asks the right
question, there are a number of pointers to the view which both my Lords have
expressed.
The evidence
was that, when Mr Singh lived at the house, the boy slept in the back bedroom
on the first floor; and he continued to do so after it had been let to Mr
Adjei, the finding was, ‘with an arrangement that the boy should continue to
sleep in the back bedroom’; and then the evidence was that he slept there every
night. He had his breakfast at the other house and then he came back somewhere
in the evening between 8.30 and 9 pm and went to bed; sometimes, as it was
said, watching the television of the Adjei household. The evidence was that the
boy had a key, presumably a key to the door of the house. There was no evidence
whatever that the room was used for any other purpose or by anybody else during
the day and, accordingly, applying the ordinary use of English, I agree with my
Lords that part of the house, namely that back bedroom, was occupied by a
member of the applicant’s family, namely the 12-year-old boy.
The appeal
was allowed, judgment being given for £2,765 with costs here and below on the
High Court Scale; an order was made for legal aid taxation.
