Housing association — Assured tenancy – Possession — Appellant landlord granting respondent assured tenancy – Respondent obtaining transfer to larger accommodation to accommodate carer on medical grounds – Appellant seeking possession for breach of tenancy — Whether respondent knowingly making false statement – Whether respondent inducing appellant to grant tenancy by false statement — Appeal allowed
The appellant housing association had granted an assured tenancy of a one-bedroom flat to the respondent. The latter applied for a transfer to a two-bedroom property on medical grounds so that her son could live with and care for her. The respondent was awarded high medical priority and offered a two-bedroom flat on an assured weekly periodic tenancy which she accepted.
Investigations by the neighbourhood housing officer showed that the respondent’s son was not residing at the property. The appellant therefore served a possession notice on the respondent under grounds 12 (breach of tenancy agreement) and 17 (tenancy by deception) of Schedule 2 to the Housing Act 1988. In order to establish those grounds, the appellant had to satisfy the court that: (i) the respondent had knowingly or recklessly made a false statement; and (ii) it had been induced to grant the tenancy by the false statement.
The county court found that the respondent’s statement that her son was living with her had been false because before the tenancy was granted, the son had moved out and the respondent no longer intended that he would live at the flat. However, the claim for possession was dismissed because the judge ruled that the appellant had not proved that the respondent had remembered making the false statement. Further, ha had not been satisfied that the appellant had been induced by the false statement because, at the time the tenancy agreement was signed, a core lettings log had stated that she was the only occupier.
The appellant appealed, contending that it was not open to the judge to make such findings because the respondent had not disputed that she had made the statement nor asserted that it had been forgotten; she merely contended that it was not false and had always been true. Further, once it was accepted that the false statement was material to the grant of the tenancy, it could be inferred that the tenancy had been induced by that statement. The respondent could not show that she had corrected the statement prior to the grant of the tenancy.
Held: The appeal was allowed.
To prevent a false statement from being fraudulent, the representor had to have honestly believed in its truth. A representor who had forgotten an earlier statement might show an innocent misrepresentation or forgetfulness that negated a finding of fraud or deceit. However, before a judge enquired as to whether a representor remembered a statement, the representor had to have asserted that he had forgotten it.
In the instant case, in the absence of evidence that the respondent had forgotten her earlier stated intention or reason for needing a two-bedroom flat, there was no basis for considering whether she remembered making that representation. Whether the respondent remembered her statement in the transfer application had not been an issue and the judge had not said that the appellant should prove that she had remembered it. Accordingly, the appellant had made out its case that the respondent had sought a two-bedroom property on a false basis.
Although the respondent had recorded her sole occupancy of the property in the core lettings log at the start of the tenancy, the log’s purpose was only to gather data. It was not a document on which the appellant had relied in deciding to grant the tenancy and was not to be relied on to correct the respondent’s earlier false statement. The respondent had failed to adduce evidence to rebut the inference that the statement in question had been material to and had induced the grant of the tenancy. Accordingly, the judge had erred in his conclusion on inducement and his decision would be set aside.
Rebecca Cattermole (instructed by Owen White Solicitors, of Slough) appeared for the appellant; Susan Brown (instructed by Chambers Solicitors, of Slough) appeared for the respondent.
Eileen O’Grady, barrister
