City Of Westminster v Ali & Anor

For possession proceedings relying on ground 10 in Schedule 2 to the Housing Act 1985, the suitability of alternative accommodation is assessed by reference to the needs of the tenant and family. Whether the tenant needs to provide permanent accommodation for family members is a question of fact. An appellate court will rarely interfere with such findings where supported by evidence. It will also rarely interfere with a trial judge’s refusal of an adjournment absent unfairness. A landlord need only show an intention to demolish or reconstruct within a reasonable time after obtaining possession; planning permission for the proposed development need not already have been obtained.

Westminster City Council obtained an order for possession of a flat occupied by a secure tenant and his family. The claim relied on ground 10 in Schedule 2 to the Housing Act 1985, following an offer of alternative one-bedroom accommodation. His Honour Judge Levy QC found that the tenant had not shown that three sons were residing with him or needed to reside with him permanently.

The tenant applied to the Court of Appeal for permission to appeal. He alleged procedural unfairness arising from the refusal of an adjournment, relied on the absence of planning permission for the proposed demolition and reconstruction, and challenged the judge’s factual conclusions.

Lord Justice Tuckey dismissed the application for permission to appeal because the proposed appeal had no real prospect of success.

1. Adjournment. The decision whether to adjourn was a matter for the trial judge’s discretion, with which the Court of Appeal seldom interfered. The tenant had been represented by counsel, had been given time to consider the papers, and had given evidence. Nothing suggested that the trial had been unfair.
2. Planning permission. The statutory requirement was that the landlord intended to demolish or reconstruct within a reasonable time after obtaining possession. It was common ground that this requirement was satisfied. The absence of planning permission for the latest proposed development did not alter the position.
3. Suitability and family need. Under ground 10 in Schedule 2 to the Housing Act 1985, the issue was whether the alternative accommodation was suitable for the needs of the tenant and his family. Whether the tenant needed to provide permanent accommodation for the three sons was a question of fact. The evidence strongly supported the judge’s conclusion that they were not residing with the tenant and did not need to reside with him. The tenant’s concern for their welfare, and the possibility that they occasionally stayed with him, did not establish the required permanent need. The same conclusion applied to the twin sons living with their mother in Birmingham, particularly as their residence was the subject of contested proceedings.
4. The forthwith possession order was unusual but had been made on the Council’s undertaking to arrange the tenant’s move to the alternative accommodation. The application for permission to appeal was therefore dismissed.

1. Court of Appeal (Civil Division) — In [2002] EWCA Civ 1059, Lord Justice Tuckey dismissed the tenant’s application for permission to appeal.
2. Central London County Court — On 26 April 2002, His Honour Judge Levy QC granted Westminster City Council possession forthwith.