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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brighton & Hove City Council v Gill [2001] EWCA Civ 1240 (13 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1240.html Cite as: [2001] EWCA Civ 1240

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEWES COUNTY COURT
(HIS HONOUR JUDGE KENNEDY)

		Royal Courts of Justice Strand London WC2 Friday, 13th June 2001

Friday, 13th June 2001

1. LORD JUSTICE MANCE: With some misgivings, what I am going to do in this case is adjourn the application for permission to appeal for a hearing when both sides can be present and when it can be determined one way or another. If permission is given, then the determination of the appeal can also follow at the same time. I am also going to expedite the matter in view of the nature of the order under appeal and the very long history of arrears which have built up in a substantial amount.
2. In summary the position is that the applicant, Mr Gill, entered into a tenancy at 24 Woburn Place, Brighton, on 22nd June 1998 at a rent of £39.10 a week. He fell almost immediately into arrears. Possession proceedings were issued against him on 22nd February 1999 and on 15th July 1999 a suspended possession order was made on condition that contractual rent was paid together with £5 per week towards the arrears which then stood at £741.16. There was also an order for £180 costs. He did not perform that condition. He made very limited payments according to the Council's letter dated 11th July 2001, £33 on 15th July 1999, and £44 on 12th August 1999.
3. The position at all times has been that as regards the rent Mr Gill has effectively relied on the receipt of housing benefit. He appears not to have received that for a period of some ten or so weeks in July to early September 1999 but then to have received it until September 2000 when he ceased to receive it at a time by when the rent had become £41.08 a week. The rent outstanding thereafter increased steadily, as a result, up to the present date. He says that he did not in September 2000 or thereafter receive any indication as to why it was that housing benefit had ceased (or indeed as I understand it, that housing benefit had ceased) until he received a letter in January 2001 or thereabouts from the Council informing him of increased arrears. By February 2001 those arrears stood at some £1,600, and on 19th March a bailiff's warrant was issued with a date of execution of 3rd April 2001. However, on 2nd April 2001 the warrant was suspended by District Judge Merrick for so long as the applicant paid current instalments together with £15 for every week for six months, and thereafter instalments of £25 a week off the arrears of £1,708.60, the first payment to be made on or before 9th April 2001.
4. The applicant says that at that hearing he made it clear to the district judge that he relied for the rent on housing benefit and for the additional £15 a week on income support. He has a part-time job as a bookkeeper in respect of which he earns some £35 a week. If he was completely unemployed he would be entitled to income support of £53.05. As he was employed earning £35 a week he would, on the face of it, be entitled to income support making up the £35 a week to £53.05, and he says that he referred the district judge to that and made it clear that he relied on receiving income support and that this will appear from the tape of the transcript of the hearing. It does not appear from the order.
5. The applicant also says that he submitted an application in April for housing benefit and council tax benefit which he says, as I understand it, would also cover or enable him to receive income support. He says that that application was returned as ineffective or made on the wrong form. The Council on the other hand in their skeleton argument say that it was only received on 21st May 2001 – not in April. The applicant says that the authority to whom it was submitted had admittedly a large backlog, and that would explain why they did not get round to processing it until May. It seems to be common ground that they then sent him another form, which is the form which he says he returned on 25th May and which he has identified as page 45 in the bundle which is date-stamped 11th June 2001. Again he says that the delay in date stamping is due to delay in processing. Thirdly, he says he submitted a third form on 14th June which was date-stamped 14th June, at page 44.
6. Returning to the chronology the applicant did not pay the contractual rent or £15 a week towards the arrears following the order of 2nd April 2001. On 18th May the warrant for possession was reissued with a date of execution of 14th June. On 12th June he made further application for stay of execution. On 13th June that application came in front of firstly, District Judge Lay who dismissed the application for suspension of the warrant, and secondly on appeal before His Honour Judge Kennedy, QC, who dismissed the appeal against District Judge Lay and refused leave to appeal.
7. However, in response to an indication by Mr Gill regarding a further appeal, His Honour Judge Kennedy apparently advised the applicant that he would have to apply for leave to appeal to a High Court judge and would have to go to Lewes to find one. Not surprisingly, if that advice was given, Mr Gill then went to Lewes combined court centre where, on Tuesday 26th June, the matter came before His Honour Judge Hayward who purported to deal with it and to refuse any application for permission to appeal.
8. It is against that purported decision that Mr Gill now seeks further permission to appeal from this court. However, it seems to me that what happened in front of His Honour Judge Hayward, and indeed the advice apparently given by His Honour Judge Kennedy regarding appeal, was wrong, since, under practice direction 52 paragraph 4.9 and 4.10:

"An application for permission to appeal from a decision of... a county court which was itself made on appeal must be made to the Court of Appeal, and if permission to appeal is granted the appeal will be heard by the Court of Appeal."

9. It does not seem to me, therefore, that His Honour Judge Hayward had any jurisdiction, and I have indicated today that this court will therefore look at this matter as an application for permission to appeal against His Honour Judge Kennedy's decision dismissing the appeal from District Judge Lay. As such it is, as I have pointed out, a second appeal in respect of which under Civil Procedure Rule 52.1(3) (2):

"The Court of Appeal will not give permission unless it considers that

(a) the appeal would raise an important point of principle or practice, or

(b) there is some other compelling reason for the Court of Appeal to hear it."

10. It is to my mind extremely difficult to see how that condition could be satisfied, but nonetheless I have just been persuaded that the matter should be further considered for these reasons: firstly, it does not appear to me that the implications of what Mr Gill says he made clear on 2nd April regarding the payment of the additional £15 a week were considered or fully considered in the courts below. What is clear from the reasoning of the courts below (and I have in this respect only the Council's note, not any transcript) is that the decision below (at any rate of His Honour Judge Kennedy) rested ultimately upon the failure to pay the additional £15 a week offered. In other words, as His Honour Judge Kennedy said, even disregarding all the points made in relation to housing benefit there had been a failure to meet the offer made, at least a substantial failure, on 13th June itself. Apparently £100 was paid. Mr Gill tells me that that was paid not because he had any money – he does not have any money beyond the £35 a week which is the bare minimum for living – it was a gift from his parents to try and help him.
11. Secondly, the courts below, particularly His Honour Judge Kennedy, appeared to have acted on the basis of informal checks made by the Council as to what documents had been received and when. These suggested that the Council had not received any housing benefit form or other application in April. It seems to me that that was not a very satisfactory basis for proceeding; the information does not appear to have been reduced to evidence in any way.
12. Mr Gill has suggested to me today, as I have already said, that the application in April was effectively covering not merely council tax and housing benefit, but also income support. At the moment I am not sure how that can be so in view of the title to the forms on pages 44 and 45, and in view of the reference on page 47 (the notification of housing benefit) which says that he should apply to his local DSS office if he wanted to claim benefit. However, as I understood Mr Gill, he also says that in April he did go to the job centre and that they will have on computer and also in their visitors' register some record of his application for income support. It is right to say that His Honour Judge Hayward expressed surprise that Mr Gill was not receiving income support; and on the face of what Mr Gill has said to me and on the face indeed of pages 46 and 47, it may well be surprising that he is not receiving income support. If of course he has not ever applied for it, then it would be difficult for him to say he has complied with the spirit of the order of 2nd April; but if, as he tells me, he did apply to the job centre and will be able to produce some record of that from their computer or visitors' register, that may put a different complexion on the matter. That point too does not appear to have been fully drawn out or considered in the courts below.
13. It seems to me that there are, therefore, some actual points which might put a different complexion on this matter. It is a matter where on the face of it Mr Gill, who, as the courts below have said, is evidently someone of intelligence, has failed to arrange his own affairs in such a way as to cover his obligations to the Council, and I can well understand why the Council should feel that matters have gone quite far enough, if not too far. However, as I have said, I think that there is just scope for further consideration of the matter, albeit regrettably it will inevitably incur some further costs, and potential liability for Mr Gill, if he loses, about which he is well aware.
14. I will accordingly stand over this application for a hearing between the parties with the appeal to follow as soon as possible. It will be heard by two members of this court. There will be a stay of the execution of the warrant pending the hearing of the renewed application
(Application adjourned; no order for costs).