Guerroudj v Rymarczyk

Under Schedule 7 to the Family Law Act 1996, a court deciding whether to transfer a cohabitant’s tenancy must assess all the circumstances and compare the parties’ likely hardship. Prospects of alternative accommodation may be evaluated on the best available material, even where the local authority cannot give an assurance before formal homelessness procedures begin. A liberty to apply should generally be construed strictly, but may be considered according to its purpose where further information addresses an insufficiently explored issue. No separate reference to compensation is required where the evidence shows that the other party cannot pay. A judge’s provisional approach may be criticised as procedurally undesirable without amounting to an error of law.

The parties were former cohabitants and joint tenants of a council flat. After their relationship broke down, each sought a transfer of the tenancy under Part IV of the Family Law Act 1996. The Family Court initially ordered a transfer to the appellant, conditional on payment of compensation, while allowing either party to apply if evidence of alternative accommodation emerged.

Following further evidence about the parties’ housing prospects, the judge set that order aside, transferred the tenancy to the respondent, and required the appellant to leave. The appeal challenged the judge’s jurisdiction to reconsider the order, the reliability of the rehousing evidence, procedural fairness, treatment of financial circumstances, and compensation. The central issue was whether the judge had made an error of law in revisiting the matter and balancing the parties’ hardship.

The appeal was dismissed. Lord Justice Underhill delivered the judgment, with Lord Justice Munby and Mr Justice Hildyard agreeing.

1. Under Schedule 7 to the Family Law Act 1996, the court’s task is an evaluative assessment of all the circumstances. Relevant matters include the circumstances in which the tenancy was granted, the parties’ housing needs and resources, financial resources, the likely effect on health, safety or well-being, and the parties’ suitability as tenants. The decision necessarily involves balancing the relative hardship likely to be suffered by each party.
2. The judge was entitled to entertain the respondent’s further application. Although liberty to apply provisions should generally be strictly construed because orders should be final, the first order was intended to allow further consideration of the parties’ prospects of rehousing. It was unnecessary to decide finally how strictly the provision should be construed because the appellant had not objected to the further hearing below.
3. A court deciding a transfer application may have to make an educated judgment from the best available material. A local authority will often give no assurance until threatened homelessness has arisen and its ordinary assessment process has begun. The court could rely on the appellant’s disabling back condition, the medical evidence, the earlier housing decision, and the respondent’s more particularised evidence. The material was sufficient, though only just, to support the conclusion that the appellant was likely to be rehoused while the respondent was not.
4. There was no procedural unfairness. The appellant had notice of the further hearing, received the respondent’s letter, could have filed evidence, gave oral evidence, and did not seek an adjournment.
5. The judge did not err by failing expressly to address compensation under paragraph 10(4) of Schedule 7. The findings showed that the respondent could not properly have been ordered to pay compensation, so formal reference to that power was unnecessary.
6. It would have been preferable to adjourn the original hearing rather than announce a provisional result and later reconsider it. That approach created an expectation of success and avoidable complications, but it did not disclose an error of law. The order transferring the tenancy to the respondent and requiring the appellant to leave by 1 October 2014 therefore stood.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 743, the appeal was dismissed.
• Oxford Family Court: His Honour Judge McIntyre initially ordered transfer of the tenancy to the appellant subject to £1,500 compensation and liberty to apply. On 23 July 2014 he set that order aside, transferred the tenancy to the respondent, and ordered the appellant to leave by 1 October 2014.