City council wins appeal over refusal of possession order

The High Court has allowed an appeal brought by City of Westminster Council against a judgment which dismissed a claim for possession.

In City of Westminster Council v Kazam & Anor [2023] EWHC 825 (KB), the local authority appealed against the order of HHJ Hellman, made following an ex tempore judgment delivered on 26 May 2022, which dismissed the claim for possession brought by Westminster against the second respondent (D2).

HHJ Hellman had declared that D2 had “succeeded to a secure tenancy” of the property in question.

Outlining the background to the case, Mr Justice Lane said the council granted a secure joint tenancy of the property to the first respondent (D1) and Mrs Hussain, who was D1's wife.

On or around 11 May 2011, Trinity Solicitors LLP sent a letter to the council’s housing benefit department on behalf of D1 stating that he had departed from the property and was waiting for the council to arrange private accommodation where he could live alone.

D1 was given a social housing tenancy in the borough of Westminster, said Mr Justice Lane.

In May 2017, Mrs Hussain sought legal advice from the Migrants' Law Project in respect of her grandson, D2, who was then living in a refugee camp in Greece. Mrs Hussain supported D2's visa application and gave a witness statement dated 26 May 2017 which, amongst other things, said:

"I have a secure tenancy through Westminster City Council and I enclose a copy of my tenancy agreement confirming the same".

Mr Justice Lane noted: “it is common ground that this agreement was the joint tenancy agreement between D1 and Mrs Hussain and the appellant”.

The statement continued: "My husband was previously living with me but he has now been provided with his own apartment in the same block since he is a lot older than me and is unable to get upstairs. This means there is only me living at the property".

The High Court judge said that upon his arrival in the United Kingdom in September 2017, D2 lived with Mrs Hussain at the property, until her death on 10 July 2020.

He said that in November 2020, D2 applied for a “discretionary succession” from the council. The council wrote to refuse that application.

On 3 August 2021, Westminster issued a claim for possession of the property in the County Court at Central London.

Mr Justice Lane said that on or around 9 November 2021, D2 “filed and served a defence and counterclaim seeking a declaration that he had succeeded to Mrs Hussain's tenancy”.

The defence proceeded on the basis that:

"1. The original tenancy had been surrendered by way of operation of law on or around 1 August 2011 after D1 had left the property and the council had re-granted Mrs Hussain a secure tenancy on a sole basis. D2 was the grandson of Mrs Hussain and upon her death he had succeeded to the sole secure tenancy pursuant to s.87 of the Housing Act 1985.

2. The appellant's notice to quit was accordingly not valid.

3. The eviction of D2 would amount to a breach of Article 8 of the ECHR."

At the trial on 26 May 2022, the judge gave an ex tempore judgment, holding that:

(1) the joint tenancy had been surrendered by operation of law and re-granted to Mrs Hussain on a sole basis, so it is said, at least; and

(2) D2 had satisfied the conditions for succession of s.87 of the 1985 Act.

Westminster advanced four grounds of challenge in its appeal:

• Ground 1: The judge erred in law in finding that Mrs Hussain had unequivocally concurred with D1's act of surrender of the joint tenancy by excluding him from the property.
• Ground 2: It was unjust because of serious procedural irregularity for the judge to find that Mrs Hussain had excluded D1 from the property and thereby unequivocally concurred with D1's act of surrender in circumstances where the argument had not been pleaded or otherwise advanced by D2.
• Ground 3: The judge's finding that Mrs Hussain had excluded D1 from the property and thereby concurred with his act of surrender exceeded the generous ambit of the judge's discretion on the evidence before him.
• Ground 4: The judge erred in law in finding that D1 had surrendered the joint tenancy by unequivocally relinquishing possession, moving and requesting new social housing accommodation, whereas Mrs Hussain remained in possession of the property.

Considering Ground 1, Mr Justice Lane said that it is “necessary first to identify why the court needs there to be a quality and depth of evidence in order to engage the principle of surrender by operation of law”.

Analysing relevant case law, Mr Justice Lane said: “In Gibbs Mew, there was ample evidence of re-grant in the form of the agreement for the new tenancy. That stands in stark contrast to the facts of the present case. As I have set out, the pleaded defence relied entirely upon an internal record of the appellant, whereby a box on a form had been ticked indicating "joint to sole", along with the words, "Please remove Mr Kazam from rent account". This was the basis upon which counsel for D2 approached the hearing before the judge.”

The High Court judge continued: “When, faced with the case law relied on by Mr Crehan, [on behalf of the council], the judge pressed counsel to point to any evidence that Mrs Hussain had agreed to the surrender, counsel for D2 was, understandably, at a loss to point to any.

“She certainly did not seek to advance the proposition that by ‘excluding’ D1 from the property or even asking him to leave, Mrs Hussain had satisfied the requirements articulated by Morgan J in Sable.”

Mr Justice Lane noted that on behalf of the respondent, it was conceded in oral submissions that the judge “did not, in fact, make a finding that a new tenancy had arisen, although she submitted that given his other findings and his order it must be assumed that he had done so”.

Concluding on Ground 1, Mr Justice Lane said: “Standing back, what all of this reveals is that there simply was no evidence of unequivocal concurrence in any surrender by D1.”

He noted that this finding “strikes at the heart of D2's case”, adding: “The contrast between the evidence before the judge and the facts of the cases where there has been found to be the creation of a new relationship of landlord and tenant could hardly be starker.”

Mr Justice Lane concluded that Ground 1 succeeded, on the basis that “the finding at para.66 of the judgment that Mrs Hussain unequivocally agreed to the surrender by excluding D1 from the property was wrong in law”.

He added: “Even taken at its highest, there is simply no evidence of ‘exclusion’. Even affording the necessary deference to the judge as the primary fact-finder, what was before him was incapable of constituting the unequivocal assent or agreement that was required by law.”

On Ground 3, Mr Justice Lane said: “I agree with [counsel for Westminster] that there was no reference to ‘exclusion’ anywhere in the evidence or the pleadings.

“The concept of exclusion also fails to chime with much of the evidence that described how Mrs Hussain had come to have sufficient accommodation in the property in order to accommodate D2, were he to be admitted to the United Kingdom. Ground 3 is made out.”

Also turning to Ground 4, Mr Justice Lane said that Westminster argues that the judge was “wrong to hold that D1 had in effect done everything he could to give up possession of the property and thus surrender the tenancy”.

In particular, he had not handed in the keys or sought to have Mrs Hussain's continued possession brought to an end. “Thus, on the basis of the decided cases, he could not be said to have surrendered”, said the High Court judge.

He noted: “[Counsel for D2’s] attempt to counter this ground of challenge is based on the submission that there was enough before the judge to support a finding that the appellant had granted Mrs Hussain a fresh tenancy; and so there had been a surrender of the previous tenancy. However, as I have said, the judge did not make such a finding and there was, in any event, no evidence before him that could have supported such a finding.

“D1's conduct can only be regarded as equivocal. He was interested in being re-housed. That is the extent of the evidence. As against this, Mrs Hussain remained in possession. In that regard, I have already explained why the judge was wrong to seek to distinguish the Ealing case. Ground 3 accordingly succeeds”.

The High Court judge said that in view of his findings on the other grounds, it was “not strictly necessary” to deal with ground 2, as if it alone were to succeed, it would result in a re-trial, whereas the effect of the council succeeding on the other grounds is that it is “entitled to an order for possession, on the basis that this is the only outcome which could result from the evidence”.

Looking at ground 2 however, Mr Justice Lane said: “The council’s legal argument had exposed the weakness in the pleaded case of D2. Those arguments had shown that D1 and Mrs Hussain needed to have acted in a way that caused the joint tenancy to be surrendered, which could have been by one of them unequivocally assenting to the surrender action of the other.

“As I have found, the suggestion that Mrs Hussain may have assented to the surrender by excluding D1 from the property featured nowhere in the written case of D2 or in the oral submissions made by counsel at the trial. The first that [counsel for Westminster] knew of the matter was when he heard the judgment delivered.”

Mr Justice Lane added: “The prejudice in this case is therefore easily identified. It was the loss of opportunity for the appellant to make to the judge the very submissions on grounds 1 and 3, in particular, that it has been required to make to me on appeal. As is plain from my judgment, had [counsel for Westminster] been able to deploy those submissions at the proper time, they would have had a material bearing on the outcome of the case. Ground 2 is therefore made out.”

The High Court judge allowed the appeal against the order of HHJ Hellman, which dismissed the claim for possession brought by the council.

In his closing remarks, Mr Justice Lane said: “I should conclude by saying that throughout this analysis, I have borne in mind [counsel for D2’s] final submission in her skeleton argument, which describes what she suggests is the absurdity of concluding that D1 remained a joint tenant with Mrs Hussain and then the sole tenant after her death, despite having eventually been provided with premises of his own by another social housing provider.”

He noted: “The response to that submission lies in the case law, which is replete with instances whereby a joint tenant has remained as such, notwithstanding a significant absence from the property in question.”

Lottie Winson