Windsor & District Housing Association v Hewitt

For possession under ground 17 of Schedule 2 to the Housing Act 1988, statements in a housing transfer application about intended household composition may be continuing representations of intention, rather than mere predictions. If the intention changes before the tenancy is granted, failure to correct the representation may be knowingly or recklessly false where the tenant knows, or is reckless as to whether, it has ceased to be true. A court should not infer that the earlier statement was forgotten without some evidential foundation for that possibility. A material pre-grant statement is presumed to have induced the tenancy; a routine data-collection form rebuts that presumption only if shown to have corrected the statement before grant and been seen by the relevant landlord decision-maker.

An assured tenant applied to transfer from a one-bedroom flat to a two-bedroom flat, stating that her son was her carer and would live with her. Before the new tenancy was granted, the landlord alleged that her intention had changed and sought possession under ground 17 of Schedule 2 to the Housing Act 1988.

The County Court found that the representation had become false but dismissed the claim because the tenant was not shown to have remembered her earlier statement and because a Core Lettings Log suggested that only one person would occupy the new flat. The landlord appealed. The central issues were whether the statements were continuing representations, whether recollection had to be proved, and whether the landlord had been induced to grant the tenancy.

Disposition

The appeal was allowed unanimously. The judgment of District Judge Parker was set aside. The court invited submissions on the form of any further order.

1. Lord Justice Longmore, whose reasoning was accepted by Lord Justices Aikens and Elias, agreed that the statements in the transfer application were representations of intention and continuing representations, not merely predictions of future conduct. An application for a two-bedroom flat based on the need for a carer was a serious statement intended to have legal effect. There was no need to import the whole law of contractual representations into ground 17.
2. The landlord did not need to prove that the tenant remembered the earlier statement unless there was some evidential foundation for supposing that she had forgotten it. The tenant’s case had consistently been that she intended her son to live with her and that he had done so. Her later case was found to be dishonest. In those circumstances, the judge’s inferential inquiry into whether she remembered the earlier statement was unnecessary and dangerous. Subject to inducement, ground 17 was made out.
3. The court accepted the rule stated in John Cartwright’s Misrepresentation, Mistake and Non-Disclosure, paragraph 5.17, as following from Lord Blackburn’s speech in Brownlie v Campbell [1880] 5 App Cas 925, 950. A failure to correct a continuing representation requires knowledge, or recklessness, as to its having ceased to be true at the time of the failure.
4. A material statement made before a tenancy is granted carries a presumption that it induced the landlord to grant the tenancy, following Waltham Forest LBC v Roberts [2005] HLR 2. The Core Lettings Log was a routine data-collection document. There was no evidence that it had been seen by an executive officer before the grant, so it did not rebut the presumption of inducement.
5. The judge was also entitled to reject the pleading objection. The case proceeded on the existing pleadings, and the allegation of fraud had been clarified before the evidence was called.

• Court of Appeal (Civil Division) — allowed the appeal, set aside the County Court judgment and invited submissions on any further order: [2011] EWCA Civ 735.
• Slough County Court — District Judge Parker found that the continuing representation had become false but held that ground 17 was not made out because the tenant’s recollection and inducement had not been proved.