Judge hits out at defence of housing possession claim
A judge has criticised the Legal Aid Agency for funding the defence in a housing case he described as “difficult to understand how this issue has been disputed down to trial”.
His Honour Judge Luba KC heard the case at the Central London County Court between the Royal Borough of Kingston Upon Thames and Sarah and Rashad Khan.
Kingston claimed possession together with judgment for rent arrears against its tenant Sarah Khan. Her adult son Rashad Khan has also lived at the premises.
The court heard that in 2005 Kingston accepted that it owed a duty to accommodate Ms Khan and provided temporary accommodation and placed her on its waiting list for council housing.
In October 2019, Kingston received information that Ms Khan’s flat was empty, and on investigating found she was living in Ashford, Middlesex. It served notice to quit.
HHJ Luba said in his judgment Kingston’s case was that Ms Khan lived in Ashford where she had managed a programme of building works to enlarge the house, but had installed her son in the flat in Kingston.
Ms Khan claimed that she had not moved out of the Kingston flat and it was found empty in 2019 because the council had failed to carry out necessary repairs.
HHJ Luba said that except where other evidence arose “I felt unable to accept the credibility of her account.
“Her evidence in court reflected that given in her [council] 'under caution' interview. In response to questions to which the answers might speak against her account, she was evasive and difficult. In contrast, where a question might lead to an answer supporting her account she answered directly and with confidence.”
The judge said Ms Khan had been “hopelessly unclear and contradictory about the circumstances in which she came to have bank accounts in her name with over £30,000 in them during periods for which she was claiming means-tested benefits.”
He added: “Ms Khan is prone to making outlandish allegations against others. Her first witness statement is replete with them…she is prone to being untruthful,”
HHJ Luba found Ms Khan has not lived at the Kingston flat for many years and the council’s evidence “establishes not simply on the balance of probabilities but also beyond any reasonable doubt that by June 2021 Ms Khan was not living [there] either as her only home or as the principal home of two homes. She had only one home. It was at [Ashford]”.
Turning to the conduct of the case, HHJ Luba said: “In retrospect, it is difficult to understand how this issue has been disputed down to trial. The case advanced by the council is, on any view, quite overwhelming. It seems that Ms Khan must have thought that there was at least some last vestige of a chance that she could 'pull it off' i.e., keep the flat as a free home for Rashad and/or buy it cheaply.
“How those advising her thought that she might have a prospect of success on this issue in the absence of [other] evidence, I cannot imagine. Yet more surprising is that the Legal Aid Agency agreed to fund the defence on this point.”
Ms Khan had counter claimed under the Equality Act 2010 section 35(1) which prohibits a property manager from discriminating against an occupier by evicting them or subjecting them to any other detriment.
The judge said two aspects of the counterclaim “ought never to have been pursued” concerning direct discrimination.
A claim for indirect discrimination relied on Equality Act 2010 section 19 but “Kingston would have amply established that the eviction was a proportionate means of achieving a legitimate aim i.e. of recovering social housing from a person not living it in to give to a more necessitous person who would live in it”.
HHJ Luba held Kingston was entitled to mesne profits from the date the tenancy terminated to the date of possession and to arrears of rent and an outright order for possession.
He gave judgement against Ms Khan for £5,425.85 and against her and Mr Khan jointly and severally, for £10,969.23 and continuing at the rate of £16.75 per day until possession is given up.
Mark Smulian
