London Borough of Brent v Tudor

Under ground 16 of Schedule 2 to the Housing Act 1985, the relevant question is the tenant’s reasonable requirement for accommodation at the date of the hearing. The court must assess which household members are genuinely living at the property and reasonably need accommodation, scrutinising any apparent change in occupation. On appeal, findings based on credibility attract a high degree of restraint. An imperfect or extempore judgment will not be set aside for inadequate reasons if, after examining the evidence and transcript, the appellate court can understand the reasoning and identify a sufficient basis for the conclusion. A judge need not address every submission or evidential detail, but must explain how the issues vital to the result were resolved.

The Council sought possession of a six-bedroom property under ground 16 of Schedule 2 to the Housing Act 1985 after Cheryl Tudor succeeded to her mother’s tenancy under section 89. Following a trial at Willesden County Court, HHJ McDowell found that four bedrooms were reasonably required for Cheryl’s household, including accommodation for her brother Christopher and his two sons. The Council appealed on grounds of perversity, procedural unfairness and inadequate reasons, relying on evidence connecting Christopher with another address. Permission was granted on a renewed application in [2012] EWCA Civ 1818. The central issue was whether Christopher and his sons were genuinely living at the property at the date of the hearing and whether the judge’s findings and reasons could stand.

The appeal was dismissed.

1. For ground 16, the relevant date was the date of the hearing. The court had to determine which family members were genuinely living at the property and which the successor tenant reasonably required to be accommodated. The inquiry was factual and proceeded on the balance of probabilities. A merely artificial occupation could be disregarded. The judge had identified the correct legal test.
2. Although the judgment was extempore, rough-hewn and affected by gaps in the transcript, the appellate court could follow the reasoning after examining the underlying documents and parts of the evidence. The judge had recognised the evidence connecting Christopher with the Sidcup Road property, the inconsistencies in the family’s evidence, Maria’s failure to give evidence and the insurance explanation. He was nevertheless entitled to prefer the documentary evidence supporting occupation at Lydford Road and to accept the key parts of Christopher’s evidence.
3. Findings of fact, particularly findings based on credibility, are subject to a high appellate hurdle. As illustrated by English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 W.L.R. 2409, and the Withers Farms case, an inadequately structured judgment may stand where the appellate court can identify reasons supporting the decision and follow the reasoning.
4. A judge need not deal with every submission or evidential detail. The vital issues must be identified and the manner in which they were resolved explained sufficiently to show why one party won and the other lost. The review of the material made clear why the Council had lost.
5. The procedural-fairness challenge failed. The evidence concerning the Sidcup Road property was addressed during closing submissions, and the Council had not been adversely affected by the judge’s treatment of it. The remaining grounds also failed. The apparent uncertainty in one paragraph of the judgment was resolved by the clear finding that Christopher and his children had their main residence at Lydford Road and no rights elsewhere. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): On 6 March 2013, Beatson LJ gave judgment, with Jackson LJ and Arden LJ agreeing, and dismissed the appeal. Permission had been granted on a renewed application in [2012] EWCA Civ 1818.
• Willesden County Court: HHJ McDowell found after trial that the property was reasonably required to accommodate Cheryl Tudor’s household, including Christopher and his two sons.