London Borough of Havering v Dove & Anor

Factual and Procedural Background

There are linked applications for permission to appeal two orders made by His Honour Judge Bailey at the Central London County Court. The first order, dated 20 April 2015, refused the second defendant’s application to adjourn a trial scheduled for that day. The second order, dated 28 April 2015, ordered the second and first defendants to give up possession of a flat by 5 June 2015 and awarded judgment to the local authority for arrears and mesne profits. Both defendants sought permission to appeal these orders and a stay of execution.

The defendants, identical twins, were granted a secure tenancy of the property in 1988. They relied on housing benefits to pay rent from at least 2000. A secure tenancy required that at least one of them occupy the property as their only or principal home. Investigations into their occupancy occurred in 2003-2004 without adverse conclusions, and again in 2010 leading to a report and a decision in 2011 to withdraw housing and council tax benefits on grounds that the property was not their principal home. The local authority served notices to quit and possession notices between 2011 and 2014.

Both defendants challenged the withdrawal of benefits in the Social Entitlement Chamber, where their appeal was refused. They reapplied for housing benefit in 2014 but were unable to obtain benefits for the earlier period. Evidence before the court indicated neither defendant lived full-time at the property. The judge found that each spent significant time elsewhere with long-term partners and that the property appeared little used and more for storage.

Procedurally, the defendants failed to comply with an order to serve amended pleadings and witness statements. The trial was fixed for 20 April 2015, but the second defendant’s solicitors delayed applying for a legal aid extension, resulting in late receipt of trial bundles. An application to adjourn the trial on the morning it was to start was refused by the judge, who offered a short adjournment instead. The trial proceeded with both defendants self-represented. The judge found that issue estoppel applied regarding the principal home question and, alternatively, that the property was not their principal home, that the defendants could not pay arrears, and that possession was reasonable. The defendants now appeal these findings and the refusal to adjourn.

Legal Issues Presented

1. Whether the judge erred in finding that the property was not the only or principal home of either defendant, including whether the judge properly analyzed the degree and quality of occupation.
2. Whether the judge misapplied the doctrine of issue estoppel in relation to the principal home question.
3. Whether the judge failed to properly exercise discretion under the rent arrears ground for possession, including consideration of the defendants’ ability to pay and the reasonableness of making an order.
4. Whether the judge erred in refusing the application to adjourn the trial to resolve legal aid entitlement and to allow proper representation, particularly considering the second defendant’s medical conditions.
5. Whether the judge failed to act compatibly with the defendants’ rights under Articles 6 and 8 of the European Convention on Human Rights in the conduct of the trial and decision-making.

Arguments of the Parties

Appellants' Arguments

• The judge’s conclusion that the property was not the principal home was arguably not open to him, especially given findings that one defendant occupied it three to four days per week.
• The judge failed to properly analyze important factors such as length of absence, rebuttal of presumptions, possession of belongings, and intention to return.
• The judge did not properly consider the medical condition of the second defendant, which affected her ability to attend trial and give evidence, denying a fair hearing.
• The judge failed to properly exercise jurisdiction under sections 84 and 85 of the Housing Act 1985 regarding rent arrears, ignoring the cause of arrears (withdrawal of benefits) and failing to consider discretion to suspend possession orders.
• The refusal to adjourn was based on an incorrect legal test and failed to balance relevant considerations, including the second defendant’s health and sudden loss of solicitors.
• The judge’s decisions infringed the appellants’ rights under Articles 6 and 8 of the European Convention on Human Rights.

Respondent's Arguments

The opinion does not contain a detailed account of the respondent’s legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court carefully reviewed the appellants’ submissions focusing on the refusal of permission to appeal by Floyd LJ. The court found that the judge arguably erred by failing to properly analyze the principal home issue, particularly regarding the extent and quality of occupation by each defendant. The court noted the judge did not sufficiently consider important factual and legal factors, including the medical condition of the second defendant and its impact on her ability to participate in the trial.

Regarding the rent arrears ground, the court observed that the judge’s decision was closely linked to the principal home finding and that he failed to properly exercise discretion under relevant statutory provisions. The judge also neglected to consider the reason for the arrears and the possibility of suspending possession orders.

On the adjournment issue, although the court expressed some doubt whether permission would have been granted on this ground alone, it concluded that in light of the other arguable errors, permission to appeal was appropriate. The court found that the judge’s reliance on established authorities was misplaced in the circumstances, given the appellants’ medical and procedural difficulties.

Holding and Implications

The court granted permission to appeal against the judge's orders.

The core ruling is that the appellants have a real prospect of success on appeal and permission to appeal is granted.

The direct effect is that the appellants may proceed with their appeal against the possession order and the refusal to adjourn. No new precedent was established by this decision, and the implications are confined to the parties’ ability to have their case reconsidered on appeal.