Siddiqui and another v Rashid

Rent Act 1977, section 98 and Schedule 15–Question as to suitability of alternative accommodation–Accommodation offered near to tenant’s place of work (Luton) but far from the present flat in which he was residing (London N1)–Claim that accommodation offered was not reasonably suitable as regards character, since the tenant would be removed from his friends in London and from the mosque and cultural centre at Regent’s Park which he attended–Held that, although the ‘character’ of the accommodation within the meaning of para 5(1)(b) of Part IV of Schedule 15 included Environmental factors affecting the property, this concept did not extend to such matters as the society of friends or devotional or cultural interests–Redspring Ltd v Francis considered–Appeal by tenant from county court judge’s possession order dismissed This was an appeal by Ghulam Rashid from a possession order made by Judge Dow at Clerkenwell County Court in an action by Rashid Ahwad Siddiqui and Habib-Ur-Rehman, trustees of the United Kingdom Islamic Mission, in respect of a room at 148 Liverpool Road, London N1, occupied by the appellant as a tenant. The respondents offered the appellant as alternative accommodation a room in a house at 128 Oak Road, Luton. Paul Morgan (instructed by J P Malnick & Co) appeared on behalf of the appellant; Julian G H Fulbrook (instructed by Munir & Co) represented the respondents. Giving judgment, STEPHENSON LJ said: This is an appeal from an order for possession of a flat in London, a first-floor rear room at 148 Liverpool Road, London N1, which the learned judge made against the defendant, Mr Rashid, at the suite of Mr Siddiqui and Mr Rehman, who are the trustees of the United Kingdom Islamic Mission. They wanted to sell the property in which this room is, in order to buy a larger property for their charitable work and they were able to offer to the defendant alternative accommodation in another room in a house not in London but in Luton, at 128 Oak Road. As the learned judge said in the agreed note of his judgment which we have, but which, by a misunderstanding of the practice, has not been referred to him for approval: On the face of it this sounds odd–it is a long way from where he lives–quite a long way at any rate, but the whole point is that he works in Luton and so far as I know will continue to do so. That may be an over-simplification of the point of the case and of the point of this appeal, but that is the position, that a tenant, who, according to the evidence, had been living in London since 1964 and had been working in Luton since 1967, is objecting to being compelled by the order of the learned judge to leave his room in London, far from his work, and take up residence in a room in Luton much nearer to his work. As is well known, the relevant statutory provisions require a judge, before he makes an order evicting a protected tenant, as the defendant admittedly was, to be satisfied that it is reasonable to make the order and that suitable alternative accommodation has been offered and is available to the tenant. Those provisions are now contained in the consolidating Rent Act 1977. Part VII of that Act, which deals with ‘Security of Tenure,’ opens with section 98, which provides as follows: (1)  Subject to this Part of this Act, a court shall not make an order for possession 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. It is paragraph (a) of the subsection which is relevant in this case. Subsection (4) provides: (4)  Part IV of Schedule 15 shall have effect for determining whether, for the purposes of subsection (1)(a) above, suitable alternative accommodation is or will be available for a tenant. 96 Part IV of the 15th Schedule begins with paragraph 3: For the purposes of section 98(1)(a) of this Act, a certificate of the housing authority for the district in which the dwelling-house in question is situated, certifying that the authority will provide suitable alternative accommodation for the tenant by a date specified in the certificate, shall be conclusive evidence that suitable alternative accommodation will be available for him by that date. 4. 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. No question arises under paragraph 3; it is a paragraph 4 situation, and subparagraphs (a) and (b) of that paragraph are also immaterial because satisfied. But the question is whether the accommodation which the plaintiff landlords offered fulfilled the relevant conditions as defined in paragraph 5, which I now read: 5 (1)  For the purposes of paragraph 4 above, the relevant conditions are that the accommodation is reasonably suitable (that adverb has been introduced) 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 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; or (b)  reasonably suitable to the means of the tenant and to the needs of the tenant and his family as regards extent and character; No question arises as to this room in Luton being reasonably suitable to the needs of the tenant as regards proximity to place of work. Equally no dispute arises as to the suitability of this room as regards rental and extent; and no question arises as to its reasonable suitability to the tenant’s means. But what is in dispute is whether this room would be reasonably suitable to the needs of the tenant and his family as regards character. The learned judge, as I said, made an order for possession and was satisfied that it was reasonably suitable accommodation as regards character to the needs of the tenant, and he has found that it was reasonable for him to make the order. Mr Morgan, in his interesting argument before us has submitted that the learned judge was wrong on the first point, but I think he would agree that he is not able any longer to maintain that if he was right on the first point, he was wrong on the second point, or so plainly wrong, at any rate, that this court could interfere and substitute its view of what was reasonable for the learned judge’s view. The learned judge considered suitability in this way. The defendant did not suggest that the alternative premises were not suitable as regards extent, but has endeavoured to persuade me that, ‘character’ must be given a wide interpretation and that if you move a person from the place where he carries out his leisure activities and where his friends are, that can be brought under the heading of character. I totally disagree. In Redspring Ltd v Francis [1973] 1 WLR 134 character was clearly defined in the headnote by reference to the premises being ‘somewhere where the tenant could live in reasonably comfortable conditions suitable to the style of life which he led.’  This is reflected in the judgment of Buckley LJ at p 138 D where he went on to say that ‘environmental matters must inevitably affect the suitability of offered accommodation to provide him with the sort of conditions in which it is reasonable that he should live.’ The learned judge continued: Having viewed 128 Oak Road, I am perfectly satisfied that the tenant could lead a perfectly good life in accordance with his present style. I am totally unable to accept the submission that the upsetting effect that the move would have, and that although he would be near his work, he would be further from the mosque he so often attends and where his friends are, can be included in ‘character.’  I cannot be moved. I must follow the words of the statute. The character of the property refers to the property itself. I have had the advantage of seeing both properties and have made notes. (Those notes are before us.) In my view, the alternative premises at Oak Road are preferable; furthermore another room which has not been let would be available for the defendant if he wished it. Furthermore, he will have exclusive use of the kitchen, the sink, and a very nice modern bathroom. (He had had to share in the London premises.) He then went on to consider ‘reasonableness,’ and said: That is more arguable, but one must consider the landlords’ side. They are trying to help the members of the Muslim community; they are trying to sell 148 Liverpool Road to pay back a loan to buy a larger property in the Euston area. It is obvious that they will get more for the property with vacant possession than with a tenant. I cannot accept the argument that anyone would be prepared to offer as much if the defendant were there. It is perfectly reasonable for the landlords to seek an order for possession so that they can sell the property at the best price available. The plaintiffs have amply proved their case and I make an order for possession in 28 days. We are bound by authority not to give a very narrow construction to the word ‘character’ in paragraph 5(1)(b) of Schedule 15 to the Act of 1977. The wording of the relevant statutory provisions which this court had to consider in Redspring v Francis was the same and in that case this court rejected the argument that the character to which the court must have regard did not include what the county court judge in that case had called ‘environmental aspects or peripheral amenities.’  That was a case which in some respects resembled this. Buckley LJ, in the leading judgment, said at p 137C: So we have to consider whether in the present case the accommodation offered at 108 Fleet Road is reasonably suitable to the needs of Mrs Francis as regards extent and character. No point arises in this case in relation to proximity to the place of work or the means of the tenant. We are concerned only with the question whether the accommodation is reasonably suitable to her needs as regards extent and character. Extent, as I have already stated, is conceded. So the question is whether the accommodation is reasonably suited to her needs in respect of its character. That was exactly the same position as in this case. There the learned county court judge had made an order for possession, because he took the view that equally good accommodation next to a smelly fish-and-chip shop and a good deal of motor traffic and noise was suitable accommodation to similar premises in a quiet street not far off which Mrs Francis had been occupying for 30 years. He was able to take that view because of the narrow view which he took of the meaning of the word ‘character.’  In his judgment, quoted by Buckley LJ at p 137 of the report, he had said: The ‘needs’ contemplated by paragraph . . . cited in argument, are not the same as tastes and inclinations: they are needs of an urgent, compelling nature–space, transport, a bathroom, etc. Peripheral amenities are of a different category: by this I am not saying that Mrs Francis’s objections are fanciful but I find that her needs are met, apart from the environmental aspect. One must look at the whole of the picture, and I have not forgotten the hospital, the fish-and-chip shop, the public house and the cinema. This court held that in spite of that last sentence the judge really had forgotten, or, at any rate, put out of the picture, the hospital, the fish-and-chip shop, the public house and the cinema, and the smells and the noises that all that and the proximity of a busy road provide; and was wrong in excluding from his consideration the question whether the accommo-97 dation offered was reasonably suited to Mrs Francis’s needs in respect of its character. Buckley LJ lists ‘environmental matters’ at the top of p 139: . . . environmental matters such as the smell from the fish-and-chip shop, the noise from the public house, noise perhaps from vehicles going to and from the hospital and matters of that kind. In so doing, with respect to the judge I think he misdirected himself. Those, I think, are all matters properly to be taken into consideration in connection with the making of such an order as was sought in this case. Orr LJ agreed and Sachs LJ also agreed, and added some observations to the effect that for there to be a difference in character that must of course normally relate to a difference in kind rather than a difference of lesser degree; and in that case he held that there was a difference in kind between the character of the two premises. As was pointed out in the course of the argument, the statutory provisions say nothing of difference in character, but Mr Morgan has submitted that it was only if there could be shown to be some difference in character between the two premises that this question of unsuitability of alternative accommodation to the needs of the tenant as regards character could arise. What he submits–and he did not appear in the county court, but it was submitted in the county court–is that the court must look at environmental aspects, and that means the respective locations of the two premises, and see whether the tenant’s needs are satisfied as regards the new location. Those needs are not merely physical needs, it was submitted, but such needs as were given in evidence here; need for a devout Muslim to keep in touch with his local mosque and cultural centre (in this case the mosque and cultural centre in Regent’s Park) and need to enjoy the company of friends whom he had made in the course of his many years’ residence in London. The judge was not wholly satisfied, according to a note which he made in the course of his notes of the evidence, with the defendant’s evidence as to his attendances and needs to attend at the Regent’s Park mosque, but he ruled that the need of the defendant to visit that mosque and the cultural centre there, and to keep in touch with his London friends, did not relate to the character of the property, as environmental aspects had to relate if they were to be a relevant consideration to the question of the suitability of the alternative accommodation. The Act does not say that the alternative accommodation must be reasonably suitable to the needs of the tenant as regards location or, of course as regards environment, and for my part I would regard the learned county court judge as right in this case in confining ‘character’ to the ‘character of the property.’  I find nothing in the judgment of this court in Redspring v Francis to indicate that that is wrong, or to extend the meaning of ‘character’ beyond character of the property. The character of the property was directly affected by the environmental matters which were the subject of Mrs Francis’s objection to her move. I have read them from Buckley LJ’s judgment; noise and smell were matters which would directly affect the tenant in the enjoyment of her property, so they could well be said to relate to the character of the property. I cannot think that Parliament intended to include such matters as the society of friends, or cultural interest, in using the language that it did in the particular word ‘character.’  Nor can I accept that Buckley LJ had any such considerations in mind when he referred, in the passages which the county court judge quoted from his judgment, to the needs of the tenant to have ‘somewhere where the tenant could live in reasonably comfortable conditions suitable to the style of life which he led,’ and referred to the accommodation providing him with the sort of conditions in which it is reasonable that he should live. To extend the character of the property to cover the two matters on which the defendant relies, namely, his friends in London and his mosque and cultural centre would, in my judgment, be unwarranted. The defendant said he did not want to leave London or to live in Luton, although he worked there, but it is clear that his preference for London and objection to Luton was based on those two considerations. In my judgment it would be impossible to say that the room in Luton was not one in which he could live in reasonably comfortable conditions suitable to the style of life which he was leading in London, or that it did not provide him with the sort of conditions in which it was reasonable that he should live. He implied that his workmates in Luton were not as much friends of his as his friends in London, but he agreed that his workmates were friends. However that may be, I do not think that the court is required to go into such questions in considering suitability. I would therefore hold that the judge was right in the conclusion which he reached as to the reasonable suitability of the alternative accommodation in Luton which the plaintiffs offered to the defendant. That would not conclude the matter if Mr Morgan had felt able to challenge the learned judge’s view of what was reasonable. The language of the learned judge, which I have read, when he went on to consider ‘reasonableness’ may not be the language in which he would have put his consideration of the matter in a reserved judgment; but I am not satisfied that he was indicating that the leisure activities and the spiritual needs of this defendant, or any defendant, would be irrelevant to the question of overall reasonableness. What he was clearly deciding was that it was perfectly reasonable for the landlords, the plaintiffs, to seek an order for possession and it was reasonable for him to grant it. I need not detail the evidence that was given as to the work of the mission, of the trustees who were seeking possession; but the learned judge was quite satisfied that they needed to sell these premises to carry on their charitable work, that they had had to borrow money to acquire the larger property which they needed to carry on that work, and that they could repay the loan if they could sell the property in which the defendant was living with vacant possession. For these reasons, in my judgment, the learned judge came to the right conclusion and I would dismiss the appeal. DUNN LJ and SIR DAVID CAIRNS agreed. The appeal was dismissed with costs.