London Borough of Croydon v Axford

For possession claims under the Housing Act 1985 based on rent arrears or a knowingly or recklessly false statement inducing the grant of a tenancy, suitable alternative accommodation is not an additional condition. Civil courts determine disputed facts on the balance of probabilities; a criminal acquittal applying the higher standard of proof is not inconsistent with a civil finding. An appellate court will not consider factual matters raised for the first time on appeal. Failure to comply with procedural directions, including resulting exclusion from giving evidence, does not itself create an arguable appeal. A deliberate false statement inducing the grant of a tenancy will ordinarily make an outright possession order reasonable.

A secure tenant faced possession proceedings brought by the local authority under grounds 1 and 5 of the Housing Act 1985. The county court found substantial rent arrears and a deliberate false statement about ownership of other property. It found both grounds established and considered possession reasonable.

On the proposed appeal, the tenant challenged the absence of suitable alternative accommodation, his exclusion from giving evidence after procedural default, the factual findings, and reliance on matters arising in a criminal trial in which he had been acquitted on some counts. The central issue was whether any proposed ground had a real prospect of success.

1. Permission refused. None of the proposed grounds had a real prospect of success. The formal order was: application refused.
2. For possession claims based on grounds 1 and 5 under the Housing Act 1985, the additional condition requiring suitable alternative accommodation does not apply. The challenge based on that condition was therefore hopeless.
3. The tenant’s failure to comply with procedural orders imposing deadlines, and the resulting refusal of permission to give evidence, did not provide an arguable ground of appeal. Courts routinely impose such orders as part of their duty to deal with cases expeditiously.
4. The Court of Appeal would not consider factual matters raised for the first time on appeal where they had not been before the county court.
5. There was no inconsistency between the criminal trial and the civil possession proceedings. The criminal prosecution required proof beyond reasonable doubt, whereas the civil claim required proof on the balance of probabilities. The county court was entitled to make findings on the evidence presented to it, including findings concerning rent arrears and the false statement.
6. Once the county court had found that the tenant deliberately made an untruthful representation to induce the grant of the tenancy, it was almost inevitable that an outright possession order would be considered reasonable.

• Court of Appeal (Civil Division): [2013] EWCA Civ 215. Permission to appeal refused.
• Croydon County Court: HHJ Ellis found the statutory grounds established and made an order for possession after deciding that possession was reasonable.