Jones and another v Cook and another

Rent Act 1977, section 98(1)(a), and Schedule 15, Part IV, paras 4 and 5 — Suitable alternative accommodation — Accommodation deemed to be suitable under para 4(1)(a) provided that it fulfils the relevant conditions in para 5 — Importance of distinguishing the different functions of the local housing authority and the judge under para 5 — In the present case the judge confused or ‘elided’ the relevant provisions — It is for the judge to determine whether the alternative accommodation proffered is similar in rental and extent to that provided by the local housing authority — The authority’s certificate is conclusive as to the extent of the accommodation but not as to similarity — The judge had been in error in a material respect — Unfortunately, the matter could not be dealt with by the Court of Appeal but would have to be remitted to the county court 109 The case concerned a cottage let to the appellants of which the respondent owners, executors under a will, wished to obtain possession — They put forward as alternative accommodation another cottage approximately 400 yards away — The argument on the appeal was limited to issues affecting the suitability of the accommodation and in particular the validity and purpose of the certificate — This involved a consideration of paras 4 and 5 of Part IV of Schedule 15 to the Rent Act 1977 — In the present case the accommodation proffered was not provided by the local housing authority but fell within para 4(1)(a) of Part IV — What was essentially in issue was whether, in the opinion of the court, the accommodation fulfilled the relevant conditions in para 5(1) — There was no dispute in regard to reasonable proximity to place of work or in regard to rental — What was in dispute was whether the accommodation was similar as regards extent to the accommodation afforded by dwelling-houses provided by the authority as mentioned in para 5(1)(a) — As a help in providing factual information as to the extent of the accommodation provided by the authority and the amount of the rent charged for it, para 5(2) establishes the machinery of a certificate, which is stated to be conclusive evidence of the information so given — The conclusiveness of the certificate, however, is only in relation to the facts of extent and rent, not in relation to the similarity as regards rental and extent, which involves a judgment or opinion of the court — Unfortunately, in the present case the county court judge treated the conclusiveness of the certificate as removing from him the duty of deciding whether the accommodation proffered was suitable alternative accommodation — In this he erred in a material respect — He made an order for possession in favour of the landlords There was a further question in regard to the certificate — It stated that it certified that the alternative accommodation offered was ‘similar in extent to council-owned dwelling-houses which may be provided in the neighbourhood for families consisting of husband, wife and three children’ — It did not, however, state what it was supposed to state, namely ‘the extent of the accommodation afforded by dwelling-houses provided by the authority’ — It purported instead to perform the judge’s function of determining whether the accommodation proffered was similar to that provided by the authority — Thus the certificate did not comply with the schedule The result was that the judge had wrongly considered that he was bound by a certificate which was in any case invalid — In the absence of a conclusive certificate correctly used and applied the deeming provisions in para 4 of the schedule did not come into operation — The Court of Appeal considered whether they could put the matter right by themselves deciding whether the accommodation was suitable — Unfortunately, it was not possible to do so on the evidence available — The case had to be remitted to the county court — Appeal allowed and case remitted The following cases are referred to in this report. MacDonnell v Daly [1969] 1 WLR 1482; [1969] 3 All ER 851; (1969) 20 P&CR 864, CA Roberts v Macilwraith-Christie [1987] 1 EGLR 224 This was an appeal by tenants, Robert Cook and Mrs C A Cook, from a decision of Judge McNaught, at Stroud County Court, granting an order of possession of 2 Nash End Farm Cottage, Bisley, Stroud, to the plaintiffs, Elvert Anthony Willoughby Jones and David Courtney Massey, executors of the will of Violet Mary Wilby, deceased. The order had been granted on the ground that the executors were offering to provide suitable alternative accommodation for the tenants at a nearby cottage. Timothy Hills (instructed by R G McLusky & Co, of Minehead, Somerset) appeared on behalf of the appellant tenants; Martin Steen (instructed by Rickerby, Jessop, of Cheltenham) represented the respondent executors (plaintiffs below). Giving the first judgment at the invitation of Stocker LJ, WOOLF LJ said: This is an appeal from an order for possession made by His Honour Judge McNaught on October 6 1989 when sitting in the Stroud County Court. The appeal is brought by the tenants of that property, Mr and Mrs Cook. They had occupied, since the premises were let to them (or, if not to them, to Mr Cook), 2 Nash End Farm Cottage, Bisley. The letting took place on May 22 1975. At that time the landlord of the premises (perhaps it would be more accurate to say the landlady) was a Miss Wilby, who owned a substantial estate in the area of Bisley, Stroud, Gloucestershire. She died on October 14 1975 and the plaintiffs in the proceedings before the learned judge were the executors of her estate. There was no dispute at the hearing before the learned judge that Mr and/or Mrs Cook had a protected tenancy of the cottage which had been let to them. However, the plaintiffs contend that they were entitled to possession of the cottage because they were providing alternative accommodation which was suitable at East Cottage, Nash End, a cottage which was situated approximately 400 yards away from Nash End Farm Cottage. There was a dispute at the hearing before the learned judge as to whether the defendants occupied the whole of Nash End Farm Cottage, but that issue was determined by the learned judge in favour of the defendants and the case for possession has therefore to be approached on the basis that the defendants, together with their three children, were occupying and entitled to occupy the whole of Nash End Farm Cottage, the family consisting of three sons: one aged 11, one aged nine and one aged 18 months. In his extremely lucid judgment the learned judge made it clear, in a passage to which I must refer hereafter, that the plaintiffs were entitled to judgment in their favour on the basis of a certificate which was issued by the local housing authority on April 5 1989. The validity of that certificate is at the heart of this appeal. The argument on the appeal has been limited to the questions which depended on the validity of that certificate, since both Mr Hills, who appears on behalf of the appellants, and Mr Steen accept that the validity of this certificate is in fact determinative of the appeal. To determine the issue it is necessary to make reference to the relevant statutory provisions which are contained in the Rent Act 1977. In order to obtain possession the plaintiffs had to comply with section 98(1) of that Act, which provides: Subject to this Part of this Act, a court shall not make an order for possesion of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (a)   the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b)   the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act. In this case the plaintiffs were seeking to comply with subsection (1)(a). That means that, before the court could make an order for possession, it had to be satisfied, first of all, that suitable alternative accommodation would be available and, second, that it was reasonable to make the order. It is now necessary to refer to Part IV of Schedule 15 to the same Act, which deals with suitable alternative accommodation. Para 3 of Part IV deals with the situation where the local housing authority is going to provide the suitable alternative accommodation. That is not the situation here. Para 4 of Part IV deals with the relevant situation. It provides: Where no such certificate as is mentioned in paragraph 3 above is produced to the court, accommodation shall be deemed to be suitable for the purposes of section 98(1)(a) of this Act if it consists of either — (a)   premises which are to be let as a separate dwelling such that they will then be let on a protected tenancy, . . . or (b)   premises to be let as a separate dwelling on terms which will, in the opinion of the court, afford to the tenant security of tenure reasonably equivalent to the security afforded by Part VII of this Act in the case of a protected tenancy, . . . and, in the opinion of the court, the accommodation fulfils the relevant conditions as defined in paragraph 5 below. There is no dispute in this case that the alternative accommodation which was offered by the plaintiffs would be let in accordance with110 para 4(1)(a). What was in issue was whether, in the opinion of the court, the accommodation fulfilled the relevant conditions as defined in para 5. The first of those relevant conditions is set out in para 5(1)(a) as follows: For the purposes of paragraph 4 above, the relevant conditions are that the accommodation is reasonably suitable to the needs of the tenant and his family as regards proximity to place of work, and either — (a)   similar as regards rental and extent to the accommodation afforded by dwelling-houses provided in the neighbourhood by any local housing authority for persons whose needs as regards extent are, in the opinion of the court, similar to those of the tenant and of his family; . . . With regard to the requirements of para 5(1), there is no dispute in this case with regard to proximity to the place of work, nor is there any dispute as regards rental. What was in dispute was whether the accommodation was similar as to extent to the accommodation afforded by dwelling-houses provided in the neighbourhood by any housing authority for persons whose needs as regards extent are, in the opinion of the court, similar to those of the tenant and his family. It is to be emphasised that, on the ordinary meaning of the language of para 5(1)(a), the task of deciding whether accommodation is similar is placed upon the court. That is a matter of importance when considering the next relevant provision, which is that contained in para 5(2) of Part IV of the schedule. That subpara provides: For the purposes of subparagraph (1)(a) above, — and that is the subparagraph I have just been dealing with — a certificate of a local housing authority stating — (a)   the extent of the accommodation afforded by dwelling-houses provided by the authority to meet the needs of tenants with families of such number as may be specified in the certificate, and — (b) deals with rent and is not relevant — shall be conclusive evidence of the facts so stated. In order for a certificate to comply with para 5(2)(a) it must be, first of all, a certificate of a housing authority and, second, it must state the extent of the accommodation afforded by dwelling-houses which are provided by the authority to meet the needs of tenants with families of such number as are specified in the certificate. So the certificate is intended to set out the extent of accommodation which the authority provides to meet those needs. Para 7 of Part IV of the Schedule deals with the admissibility in evidence of a certificate and its attestation. It provides: Any document purporting to be a certificate of a local housing authority named therein issued for the purposes of this schedule and to be signed by the proper officer of that authority shall be received in evidence and, unless the contrary is shown, shall be deemed to be such a certificate without further proof. Before the learned judge there was an issue as to whether this certificate with which we are concerned on this appeal complied with para 7, but the learned judge determined that matter in favour of the plaintiffs and, with regard to that, there is, again, no issue on the appeal. So, having looked at those statutory provisions, I now return to the certificate which was issued. It was in these terms: To whom it may concern, Re: East Cottage, Nash End, Bisley. This is to certify that, within the terms of Paragraph 5(1)(a) of part 4 of schedule 15 of the Rent Act 1977, the above property is similar in extent to Council owned dwelling-houses which may be provided in the neighbourhood for families consisting of husband, wife and three children. Then it goes on to set out at what rent a dwelling-house of that sort is let by the council, and I do not need to read that part of the certificate. Before the learned judge evidence was given by a number of witnesses, two of whom dealt with the question of what accommodation was actually as a matter of fact provided by the housing authority. The first of those, a Mr Marshall, said that he had prepared the certificate, that he had inspected East Cottage and taken measurements and that East Cottage would provide usable floor area of 66 m2. We had before us, and the learned judge had before him, plans of East Cottage and plans of Nash End Farm Cottage and, if one looks at the plan of East Cottage, one sees that it had a kitchen, dining room and lounge on one floor, two bedrooms on the first floor and an attic room on the second floor. The accommodation was not as spacious as that provided by Nash End Farm Cottage but, as the learned judge set out in his judgment, East Cottage had advantages over Nash End Farm Cottage, as a substantial sum of money had been expended upon it and it had central heating, which is not available at Nash End Farm Cottage. Mr Marshall, in his evidence when cross-examined, stated that the average council house in the area of Bisley was larger than East Cottage, because it provided 89 m2 of accommodation. Evidence was also given by a Mr Shaw, who is the housing manager of Stroud District Council, and he said in his evidence that the council did not have any similar properties to East Cottage. He described the accommodation which they did have and then went on to say they do not have smaller properties in Bisley; the smallest they have is 72 m2, that figure having to be compared with the 66 m2 which is provided by East Cottage. In his admirably clearly reasoned judgment Judge McNaught sets out his approach step by step. He refers to the relevant statutory provisions and then comes to deal with the question of the certificate in these terms: Much of the evidence I heard from the two surveyors and from Mr Cook himself went to a comparison of the two properties. This evidence would have been extremely helpful and important if I myself had had to decide whether East Cottage afforded suitable alternative accommodation. But the statutory deeming provisions and the conclusiveness of the local authority’s certificate take that duty from me. It would not be right for me to give weight to arguments about the size of East Cottage in the light of the finding which I have been required to make as to its suitability because that would undermine the statutory provisions. The approach of the learned judge is substantially correct in the paragraph of his judgment which I have just cited but, although it is substantially correct, in my view it is in error in a material respect. The way the statutory provisions are intended to work is that the certificate under para 5 of Part IV of Schedule 15 should set out the extent of the accommodation provided by the housing authority, and then it is the learned judge’s task to determine whether the alternative accommodation proffered is similar in extent to that accommodation referred to in the certificate. If he comes to the conclusion that it is similar, then the deeming provision contained in para 4 of the schedule takes effect, but if it is not similar in the opinion of the learned judge, then the deeming provision does not take effect. In the paragraph to which I have made reference the learned judge has elided the two tasks, one of the housing authority in providing the certificate and his under para 5(1)(a) of the schedule. Furthermore, the question arises as to whether this particular certificate complied with para 5(2) of the schedule in any event. Mr Hills, in his short but none the less effective submission, submits it does not. He submits that, when you look at the terms of the certificate which I have read, it does not state what is the extent of the accommodation which is provided by the housing authority. What it states is that the accommodation which the housing authority provides is similar in extent to that provided by East Cottage. In other words, the certificate is not performing the task which it should perform under para 5(2) of the schedule but is performing the function which the judge should perform and which I have just identified in this judgment. It is stating in effect the opinion of the housing authority that the accommodation that the housing authority provides is similar to that provided by East Cottage. It does not set out what it is required to do, namely the extent of the accommodation provided by the housing authority and, if the certificate is compared with the provisions of para 5(2), one sees that the certificate goes beyond what is intended by para 5(2) and does not state what is required to be stated for the purposes of para 5(2). In answer to the approach of Mr Hills, Mr Steen submits on behalf of the landlords that, first of all, you have to read the certificate in the context of the evidence which was given before the learned judge; that, although the certificate does not say so, in fact, as we know from the evidence of Mr Marshall, the man who signed the certificate, he had measured East Cottage and, therefore, in certifying on behalf of the housing authority that that was similar to the accommodation provided by the housing authority, he was saying what the housing authority would provide. With the greatest respect to that argument, it would, in my view, involve doing violence to the language of the relevant statutory provisions to allow it to prevail here so as to make the certificate admissible. In addition Mr Steen submits that the learned judge has found the certificate to be a conclusive certificate. That is a decision on a question of fact. In relation to questions of fact in Rent Act cases, there is no appeal to this court and, therefore, that is not a matter that111 can be raised on this appeal. I am afraid I do not accept that submission. The question of whether the certificate was admissible in evidence and whether it performed the role the learned judge thought it performed is a pure question of law depending on the construction of the statutory provisions and the certificate, in relation to which there is an appeal to this court, and it is a matter on which this court has to express a judgment. In my view, the only conclusion is that the certificate is not one which complies with the schedule. It did not perform the function the learned judge thought it performed and, in those circumstances, the appeal will have to be allowed for reasons I will explain in a moment. Such a view of this certificate is supported by the approach of the court in the case of MacDonnell v Daly [1969] 1 WLR 1482. In giving the second judgment of the court in that case, Edmund Davies LJ said at p 1487D: There is one other matter that I think I ought to mention. This is a case where reference is made by the Act for certain purposes to a certificate recording the rent and the extent of accommodation afforded and provided in the neighbourhood by a housing authority. In the present case the landlord had obtained a certificate from the Hammersmith London Borough Council, in relation to the accommodation they afford to meet the needs of a bachelor. In the certificate they describe such accommodation as ‘a bed-sitting room flatlet consisting of a bed/living room, kitchen, bathroom and we.’  It is not essential to come to any conclusion about this matter for the purposes of this present appeal, but I have some doubt whether it is sufficient, in dealing with the extent of accommodation afforded by a housing authority, merely to state the number of rooms provided in certain circumstances. I should have thought that it was at least more prudent that the certificate should also give some indication of the dimensions of the rooms provided. Rooms vary greatly, and it seems to me that it might justifiably be urged that inadequate information is supplied merely by stating the number of rooms provided in varying sets of circumstances. In that judgment Edmund Davies LJ was considering a certificate which at least indicated the number of rooms provided by the housing authority and he thought that that might not be sufficient and that it was prudent to include the dimensions. No doubt Edmund Davies LJ was caused to make that comment about what was desirable to be contained in the certificate because he was conscious of the task which a judge has to perform in a possession action where a certificate is provided, in coming to his own conclusion as to whether the accommodation referred to in the certificate is in fact accommodation which is similar to the accommodation which the landlord is proposing to provide for the tenant. I would respectfully agree with the comments of Edmund Davies LJ as to the desirability of a certificate including dimensions, albeit I would not go so far as to say that a certificate which did not include dimensions would not comply with the requirements of para 5 of Part IV of Schedule 15 to the 1977 Act. That case was decided before the 1977 Act came into force, but at the relevant time the legislation was in very similar terms. The other authority to which reference was made is the case of Roberts v Macilwraith-Christie [1987] 1 EGLR 224. In his judgment in that case Ralph Gibson LJ also dealt with the effect of a certificate in a passage which starts at p 227 in the first column beginning just above F and concluding in the following column just above H. I do not think it is necessary to read that paragraph into my judgment for the purposes of the present appeal. I have considered whether it is possible for this court, on the evidence which was before the learned judge, to decide the question whether the accommodation which would be provided by a housing authority, which was described in the evidence by Mr Marshall and Mr Shaw, is suitable to avoid the necessity of the case being remitted to the county court to be redetermined. I regret to say that there are sufficient issues which have to be explored in order to determine that issue that, in my view, it would not be right for this court to deal with the matter on the basis of the notes of evidence which are before the court. The learned judge based himself entirely upon the certificate and it seems to me that, the judge having taken that course and having given no indication as to his view of the similarity of the alternative accommodation referred to in the evidence of Mr Marshall and Mr Shaw, it would be wrong for this court to do so. Accordingly, the appeal has to be allowed and the case remitted to the county court. That is regrettable because it leaves the position of Mr and Mrs Cook uncertain and, on the other hand, it deprives the plaintiffs of possession of the cottage. That is unfortunate from the plaintiffs’ point of view if on the correct evidence they would be entitled to possession because they wanted the Cooks to change from one property to another, because the accommodation which they occupy at present goes with a substantial amount of land and the personal representatives are anxious to sell the cottage which is now occupied by the Cooks and the land together. Agreeing, STOCKER LJ said: I add a short observation of my own only because we are differing from the conclusion of the learned judge in a careful and reasoned judgment. The learned judge, in the passage of his judgment which has been cited by Woolf LJ, in effect decided that the fact that the certificate provided was conclusive decided the issue as to whether the accommodation offered as an alternative was suitable by reason of the deeming provisions of para 4 of Schedule 15 to the Act. The issue before this court, accordingly, was whether the terms of that certificate were such that the certificate was conclusive so as to bring into effect those deeming provisions. This certificate, which has been read by Woolf LJ, did not explain the extent of the accommodation provided by the housing authority as an alternative. It was argued before us that the certificate could be read in the context of evidence which had been given by officers of the local authority and that, since they had seen all the relevant premises, the certificate, by necessary implication, did comply with the requirements of para 5 of Part IV of Schedule 15. For my part, I would agree that the learned judge, upon the evidence put before him, could, but by no means necessarily would, have decided the case in the way in which he did by reference to his appraisal of all the evidence and its effect upon the issues put before him on which he had to decide. But by deciding that the certificate was conclusive he did not assess that evidence or decide whether the accommodation offered was suitable. He did not do so since he considered that, the certificate itself being conclusive, the certificate indicated that the accommodation was deemed to be suitable for the purposes of section 98(1)(a) of the Act. I agree with Woolf LJ that the certificate provided did not state the facts necessary to render such a certificate conclusive. It did not mention or state at all the extent of the accommodation afforded by the proposed alternative accommodation and, in the absence of a conclusive certificate, the deeming provisions accordingly did not arise. Since the learned judge considered that he was bound by that certificate and, therefore, that the accommodation offered was deemed to be suitable, he did not apply his mind to the proper conclusion which could be drawn from the evidence which was put before him and I agree with Woolf LJ that, since the certificate was not in accordance with para 5(2) of Schedule 15, the deeming provisions do not arise at all and, accordingly, the issue as to whether the accommodation offered was suitable for the purposes of the Act has never been decided. For the reasons given by Woolf LJ, I also agree that there really is no alternative but to remit this matter to the county court to be redetermined. The appeal was allowed with costs.