North Hertfordshire District Council v Carthy & Anor

The Court of Appeal allowed the appellant council's appeal against the county court's refusal to make a possession order under Ground 5, Schedule 2 of the Housing Act 1985, and remitted the matter for a fresh hearing on whether it would be reasonable to make a possession order. The court held that the recorder had erred by concentrating on whether the false representation induced the grant of the tenancy and had failed to decide the statutory "reasonableness" question required by section 84(2)(a) of the Housing Act 1985. The court accepted that an applicant's statements about lack of accommodation can amount to a continuing representation giving rise to a duty to notify material changes (in the context of housing applications and temporary accommodation) and that the respondents had breached that duty and the representations in the signed application forms (with reference to section 214 of the Housing Act 1996). The appeal was allowed and the issue of reasonableness remitted to a different Hertfordshire court for determination, with no order for costs here or below.

Background and facts:

• The local housing authority sought possession of a secure tenancy granted to Mr and Mrs Carthy. The possession claim relied on Ground 5 of Schedule 2 to the Housing Act 1985 and the statutory requirement that the court consider it reasonable to make the order under s84(2)(a).
• The respondents are a married couple with two young children. They had been accepted as having a priority need and given temporary accommodation on return to the United Kingdom in 1999; in July 2000 they were given a secure tenancy. Earlier they had been building a house in the Philippines; by early 2000 the house had become habitable but Mr Carthy did not inform the council.
• When applying for temporary accommodation and for the housing waiting list the respondents signed forms warning that withholding information or failing to notify a change might render them liable to prosecution under section 214 of the Housing Act 1996.

Procedural posture:

• The county court (Mr Recorder Morris) refused to make a possession order. The council appealed to the Court of Appeal by permission of Chadwick LJ.

Issues before the Court:

1. Whether the respondents' earlier statements that they had nowhere of their own to live amounted to a continuing representation which became untrue and gave rise to liability under Ground 5 of Schedule 2, Housing Act 1985.
2. Whether the recorder was correct to focus on inducement to grant the tenancy rather than to determine whether it was reasonable to make a possession order pursuant to s84(2)(a) of the Housing Act 1985.
3. Whether, on the material before the court, it would be reasonable to make a possession order, having regard to proportionality concerns under the Human Rights Act 1998.

Court's reasoning and decision:

• The Court of Appeal concluded that information supplied to a housing authority about homelessness and accommodation status can constitute a continuing representation and therefore give rise to a duty to notify material changes, particularly given the statutory context (including reference to section 196 of the Housing Act 1996).
• The recorder accepted there had been a failure to notify the change but proceeded to decide that the misrepresentation could not have induced the grant of the secure tenancy. The Court of Appeal regarded that approach as wrong and unnecessary to determine the ultimate question which was whether it was reasonable to make a possession order.
• The court emphasised that the reasonableness question required judicial determination and that the Human Rights Act 1998 requires careful appraisal of proportionality in eviction cases. Because the facts relevant to proportionality and reasonableness (including disputed factual matters such as the funding and subsequent use of the Philippine property) remained to be determined, the Court allowed the appeal and remitted the question of reasonableness for hearing by a different court in Hertfordshire.
• Costs: the recorder made no order for costs below; the Court of Appeal made no order for costs on the appeal.

This was an appeal. The Court of Appeal allowed the appeal because the recorder erred by failing to decide the statutory question of whether it was reasonable to make a possession order under Ground 5, Schedule 2 of the Housing Act 1985 and s84(2)(a), and by concentrating on inducement rather than on reasonableness. The case was remitted to a different court in Hertfordshire to determine, after proper judicial consideration including proportionality under the Human Rights Act 1998, whether it is reasonable to make a possession order. No order for costs was made here or below.

Appeal by permission of Chadwick LJ from Worthing County Court (Mr Recorder Morris) where the recorder refused to make a possession order. The appeal was heard in the Court of Appeal, Civil Division, and allowed. Neutral citation: [2003] EWCA Civ 20.