Secure council tenancy — Fire started by tenant’s visitors — Tenant allowed back in to flat after refurbishment — Possession order refused — Trial judge finding that the council had let the tenant back “voluntarily” — Appeal by council dismissed
In 1987 H was granted a weekly tenant in a secure tenancy of a one-bedroomed flat at 11 Morgan House, Patmore Estate, London, under the Housing Act 1985. In 1991 a fire was started in his flat in which considerable damage was done. A criminal investigation took place against the tenant’s two visitors, but not against the tenant himself. The evidence showed that a visitor had brought a can of petrol into the flat and petrol bombs were made and thrown out of the window. A car parked outside was damaged. A fire started in the flat from some spilt petrol. One visitor was given a 12-month suspended sentence for arson.
The council spent £14,640.86 repairing the premises and the tenant vacated the premises from the time of the fire, ie March 1991, until June 1992 when the council let him back into possession. At first instance the judge refused the council’s order for possession, stating, inter alia, that the local authority had “voluntarily” let the tenant back into possession. Condition C11 of the conditions of tenancy was that a tenant should “not permit to be done anything which may increase the risk of fire …”. Under the Housing Act 1985, the court cannot make a possession order for a secure tenancy except on the grounds set out in Schedule 2 “unless it considers it reasonable to make the order …”.
Held The council’s appeal was dismissed.
1. The council had taken the view that, as a matter of law, it was incumbent upon them to hand the keys back to the tenant because they could not have got a court order granting them possession unless the tenant resumed residence.
2. If there was no other procedure available to the landlords, there should be such a course open to them so that a tenant’s return to a flat should be capable of being prevented when real danger to others could be shown.
3. An appeal on the question of the judge’s discretion fell to be considered on the issue as to whether the tenant’s presence caused real danger to others in the building.
4. A judge had to take into account all relevant circumstances as they existed at the date of the hearing. He was to do that in a “broad commonsense way giving weight … to the various factors in the situation”: see Cumming v Danson [1942] 2 All ER 653.
5. The court had to look at the effect on each party of possession proceedings and to consider the landlords’ duty to other tenants.
6. Looking at the relevant circumstances up to the date of the hearing, there had been no misconduct on the tenant’s part between the date of his return and the hearing. The judge’s exercise of his discretion would be upheld on that ground, bearing in mind that he had also found that the tenant had not taken an active part in the events leading to the fire.
Colin Ishmael (instructed by the solicitor to Wandsworth London Borough Council) appeared for the landlords; David Curwen (instructed by John Singh & Co) appeared for the tenant.
