London Borough of Merton v Richards

Under Ground 5 in Schedule 2 to the Housing Act 1985, possession cannot be ordered merely because another person made a knowingly false statement connected with a tenant’s application. Where the statement is made by a person acting at the tenant’s instigation, instigation requires the tenant to bring about or initiate the making of the false statement. Tolerating, or generally allowing someone to act on the tenant’s behalf, is insufficient. The tenant must also know that the instigated statement is false, or be reckless as to its truth. The ordinary balance-of-probabilities standard applies. The seriousness of an allegation informs the assessment of probabilities and the strength of evidence required. Appellate courts should not disturb supported credibility findings without material error.

The London Borough of Merton granted Sonia Richards a secure tenancy under its mutual exchange scheme. The tenancy was based on the representation that the former tenant would move into Richards’s former home. That representation was false, and Richards’s mother, a council housing officer, knew it was false. The trial judge found that Richards neither knew of the falsity nor instigated her mother’s conduct.

Mr Recorder Luba QC dismissed the council’s possession claim. The council appealed on grounds concerning council tax entries, the standard of proof, and the construction of “instigation” in Ground 5 of Schedule 2 to the Housing Act 1985. The central issue was whether Ground 5 had been established.

The Court of Appeal unanimously dismissed the appeal. Lord Justice Pill gave the leading judgment, with Lord Justices Chadwick and May agreeing. The order was for dismissal with costs, subject to detailed assessment and a public funding assessment.

1. Ground 5 of Schedule 2 to the Housing Act 1985 requires proof that the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant, or by a person acting at the tenant’s instigation.
2. “Instigation” means bringing about or initiating the making of the false statement. It requires more than tolerating another person’s conduct, permitting that person to act generally on the tenant’s behalf, or failing to dissuade the person. The instigation must relate specifically to the false statement.
3. Where the statement is made by a person acting at the tenant’s instigation, the tenant must know that the statement is false or be reckless as to its truth. The knowledge of the other person alone is insufficient. On the findings, Richards did not know that the representation about the exchange was false and did not instigate her mother’s intervention.
4. The ordinary balance-of-probabilities standard applied. The seriousness of an allegation is relevant to the assessment of probability and to the strength of evidence required; it does not create a separate or heightened standard. The recorder’s use of “confidently” did not demonstrate a misdirection, particularly as he expressly referred to the balance of probabilities. The approach in In re H (Minors) [1996] AC 563 was applied.
5. The recorder had considered the council tax entries when assessing credibility. They could not establish inducement because there was no evidence or probability that the council tax department would communicate them to the housing department before the tenancy was granted.
6. The findings depended substantially on the assessment of witnesses after a prolonged hearing. There was sufficient material to support the recorder’s conclusions, and the Court of Appeal had no basis to interfere merely because another tribunal might have reached a different view.

1. Court of Appeal (Civil Division) ([2005] EWCA Civ 639, 11 May 2005): dismissed the council’s appeal, with costs subject to detailed assessment and a public funding assessment.
2. Central London County Court (Mr Recorder Luba QC, 10 September 2004): dismissed the council’s application for possession following a five-day hearing.