North Hertfordshire District Council v Carthy & Anor

An applicant for housing accommodation makes a continuing representation about information material to the authority’s decisions. The applicant must notify a change in circumstances capable of affecting the authority’s response. A failure to disclose that accommodation abroad has become habitable and available may therefore amount to a false statement for Ground 5 in Schedule 2 to the Housing Act 1985.

Where that ground is established, the court must still make its own judicial decision whether possession is reasonable under section 84(2)(a). That assessment remains fact-sensitive and, following the Human Rights Act 1998, requires careful consideration of the proportionality of eviction, whether immediate or conditional.

The local housing authority sought possession of its secure tenancy from Mr and Mrs Carthy under Ground 5 in Schedule 2 to the Housing Act 1985. The family had obtained temporary accommodation after returning from the Philippines and later received a secure tenancy. The council alleged that they failed to disclose that their house in the Philippines had become habitable and available.

Mr Recorder Morris, sitting in Worthing County Court, refused possession. He held that the non-disclosure had not induced the grant of the secure tenancy and did not determine whether possession was reasonable. The council appealed by permission. The central issue was whether the recorder had erred and whether the outstanding issue of reasonableness should be determined afresh.

1. Appeal allowed unanimously. Lord Justice Sedley gave the principal judgment, with which Lord Justice Simon Brown agreed. The recorder’s conclusion that the non-disclosure could not have affected the council’s provision of accommodation was wrong. The respondents properly conceded that point.

2. Information supplied by an applicant to enable a housing authority to decide whether to provide temporary or secure accommodation is a continuing representation. It carries a duty to notify a change in circumstances capable of affecting the authority’s action. The duty arose independently of the express declarations signed by Mr Carthy. The availability of a habitable house in the Philippines was plainly material and could have led the council to put the housing-list application on hold and to cease providing temporary accommodation.

3. The recorder had accepted the failure to disclose material information but did not decide the distinct statutory question under section 84(2)(a) of the Housing Act 1985: whether it was reasonable to make a possession order. That question was wide open. It required findings on the disputed circumstances, including the use of the family’s funds and the status of the Philippine property.

4. The Court of Appeal should not itself determine reasonableness. The Human Rights Act 1998 required a careful appraisal of the proportionality of eviction, whether peremptory or conditional. The issue was remitted for a fresh hearing before a different court in Hertfordshire. There was no order for costs in either court.

• Court of Appeal (Civil Division): appeal allowed in [2003] EWCA Civ 20. The issue whether possession was reasonable was remitted for a fresh hearing before a different court in Hertfordshire.
• Worthing County Court: Mr Recorder Morris refused to make a possession order and made no order for costs. His conclusion that the non-disclosure had not induced the secure tenancy was overturned.