B2/2001/1469
Neutral Citation Number: [2001] EWCA Civ 1417
IN THE SUPREME COURT OF JUDICATURE                                  
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
(HIS HONOUR JUDGE KENNEDY QC)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                             Thursday, 9th  August 2001
B e f o r e :

LORD JUSTICE MUMMERY

‑and‑

LORD JUSTICE JONATHAN PARKER

- - - - - - - - - - - - -

BRIGHTON & HOVE CITY COUNCIL

‑ v ‑

IAN GILL
Defendant
- - - - - - - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - -

The Applicant did not attend and was unrepresented.
MR G ARGENT (instructed by Brighton & Hove City Council, Brighton BN2 4LA) appeared on behalf of the Respondent

- - - - - - - - - - - - -
J U D G M E N T
Thursday, 9th August 2001
1.	LORD JUSTICE MUMMERY: Lord Justice Jonathan Parker will give the first judgment.
2.	LORD JUSTICE JONATHAN PARKER: Before the court is an application by Mr Ian Gill for permission to appeal against an order made by His Honour Judge Kennedy QC, sitting at Brighton County Court, on 13 June 2001. Mr Gill has not attended at court to make his application. I have, however, been handed a copy of a letter dated 24 July 2001 from the Civil Appeals Office to Mr Gill notifying him of today's hearing, stating:
“The hearing will take place at the Royal Courts of Justice... on 9 August 2001 at or after 10.00am. You will receive no further hearing of that date.” 
3.	In the circumstances, since Mr Gill is not present and he has been fully notified of this hearing, I propose to deal with the matter in his absence on the papers and on the submissions made by Mr Gavin Argent of counsel, who appears for Brighton & Hove City Council, the claimant in the action.
4.	By his order Judge Kennedy dismissed Mr Gill's appeal against an order made by District Judge Lay on the same day, 13 June 2001, dismissing Mr Gill's application for suspension of a warrant for possession issued by the Council, in respect of Council premises at 24 Woburn Place, Brighton, of which Mr Gill was a tenant. The proposed appeal is thus a second‑tier appeal to which Rule 52.13 of the Civil Procedure Rules applies. Under that rule permission is required from the Court of Appeal for any appeal to the Court of Appeal from a decision of a County Court or the High Court which was itself made on appeal. Paragraph 2 of the rule provides as follows:
“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.” 
5.	Mr Gill's application for permission came on for hearing initially before Mance LJ on 13t July 2001. Mance LJ adjourned the application to be heard on notice, with the substantive appeal to follow should permission to appeal be granted.
6.	The background to the issue of the warrant for possession is, in summary, as follows. On 22 June 1998 Mr Gill entered into a tenancy agreement with the Council in respect of the premises at 24 Woburn place at a rent of £39.10 per week, but as early as October 1998 Mr Gill was in arrears to the tune of £586 and the Council served notice seeking possession of the premises. At that time Mr Gill was in receipt of housing benefit and all payments received by the Council on account of rent under the tenancy were made by the Benefits Agency, representing housing benefit which had been awarded to Mr Gill.
7.	On 22 February 1999 the Council issued possession proceedings in the Brighton County Court. On 15 July 1999 a suspended possession order was made on terms that the contractual rent be paid, together with a contribution of £5 per week towards the arrears, which by that time stood at some £741 plus £180 costs. In the event Mr Gill made only two payments following that order: a payment of £33 in July 1999 and a payment of £44 in the following month.
8.	In September 2000 payment of housing benefit ceased. This is a matter to which I shall return later. By February 2001 the arrears of rent stood at some £1,600. On 19 March 2001 a warrant of possession was issued to be executed on 3 April. On 2 April, the day before execution was due to take place, on the application of Mr Gill, District Judge Merrick suspended the warrant on terms that Mr Gill paid the contractual rent together with a sum of £15 per week which he had offered towards the arrears (which at that time stood at some £1,787.60). In the event, however, despite Mr Gill's offer, no payment at all was made on account of the current rent or the arrears.
9.	On 18 May 2001 the warrant was reissued, the date of execution being 14 June. As he had done previously, on the day before execution was due to take place Mr Gill applied for a further suspension of the warrant. The application came before District Judge Lay who dismissed it. Later the same day the matter came before His Honour Judge Kennedy on appeal. As indicated earlier the judge dismissed the appeal. He also refused permission to appeal but suspended the warrant for 14 days in order to enable Mr Gill to apply to the High Court for leave to appeal. At that stage Mr Gill paid £100 towards the rent and the arrears. It appears that this sum was a gift from his parents made in order to assist him in his difficult financial circumstances. No further sums have, however, been either offered or paid to date by Mr Gill. As of today the arrears of rent amount to nearly £2,500. The only payments towards rent made personally by Mr Gill in the past, as distinct from payments made direct by way of housing benefit, were the payments of £33, £44, and £100 to which I have already referred.
10.	Following the advice apparently given by His Honour Judge Kennedy that he should apply to a High Court judge for permission to appeal, Mr Gill attended at Lewes Combined Court Centre where he applied without notice to His Honour Judge Hayward sitting as a Deputy High Court Judge. Judge Hayward adjourned the application to enable the Council to appear. On 26 June 2001 a hearing took place before Judge Hayward, sitting once against as a Deputy High Court Judge, at which the Council was represented. The judge refused permission to appeal on the footing that an appeal stood no real chance of success.
11.	It is, however, accepted by Mr Argent that Judge Hayward had no jurisdiction to entertain an application for permission for a second‑tier appeal since, as I have already pointed out, rule 52.13 of the Civil Procedure Rules provides that such an application must be made to the Court of Appeal. In any event Mr Gill applied subsequently to the Court of Appeal for permission to appeal and that was the application which came before Mance LJ on 13 July 2001. As I indicated earlier, by his order of that date Mance LJ adjourned the application so that it could be heard on notice, with the substantive appeal to follow should permission be granted. In his judgment, Mance LJ set out the background to the matter and referred to the fact that His Honour Judge Hayward had no jurisdiction to entertain an application for permission for a second‑tier appeal. Accordingly, he approached the application on the footing that, in substance, it was an application for permission to appeal against the decision of His Honour Judge Kennedy dismissing his appeal from the order made by District Judge Lay. Mance LJ referred to the provisions of Rule 15.13. He was however concerned at Mr Gill's assertions that the reason for his financial difficulty and for the increasing arrears of rent was essentially the fact that the Council had ceased to pay him housing benefit despite repeated applications which he had made for such benefit to continue. Mance LJ also commented on the absence of any evidence of the true position in relation to applications made by Mr Gill for housing benefit. In paragraph 13 of his judgment, Mance LJ said this:
“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.” 
12.	The lack of evidence to which Mance LJ referred has now been made good by a witness statements by a Mr Aaron Devereaux, a housing officer employed by the Council, and by a Miss Sue Barker, who is employed by the Council as an assessment officer in the housing benefit office. According to these witness statements the true position in relation to housing benefit so far as Mr Gill is concerned is as follows. Housing benefit, once awarded, is reviewed on a regular basis. It is normal practice for local authorities to review the majority of their cases annually and the Council adopts that practice.
13.	On 14 September 1999, at which time Mr Gill was still in receipt of housing benefit, he completed and submitted an annual review form which led to an award of benefit for a further 12 months. On 26 July 2000 another review form was sent to him for the following year with printed instructions indicating that the form was to be returned by 3 September 2000 with proof of income and savings, failing which payments of housing benefit would cease. In the event the review form was not returned and Mr Gill's housing benefit ceased on 17 September 2000. He was duly informed of the cesser of his housing benefit and invited to contact the housing benefit office if he wished to make any further claim. The letter also advised him that he would receive a revised Council tax bill shortly. In the event a Council tax bill was issued to him on 28 September 2000, followed by a reminder notice on 6 November. Despite those letters it appears that there was no contact between the Council and Mr Gill until 21 May 2001 when the Council received application forms from Mr Gill seeking income support and/or job seekers allowance.
14.	It has been pointed out to us by Mr Argent, based on the new evidence, that the appellant was referred for a job interview at the job centre in February 2001, that he attended at the job centre on 30 March 2001, that a new appointment was booked for 3 April, but that Mr Gill failed to attend that appointment and has not since attended at the job centre.
15.	Claims in respect of income support and job seekers allowance are not strictly made to the Council but to the Benefits Agency. Consequently the Council forwarded the forms to the Benefits Agency. At the same time, however, the Council sent Mr Gill a local authority claim form seeking details of all his income and capital. This was done in Mr Gill's interest in order to save time, should the Benefits Agency confirm that Mr Gill was not, in the event, in receipt of income support or job seekers allowance.
16.	On 22 January 2001 Miss Jill Morrissey, a housing officer, wrote to Mr Gill expressing concern that his rent arrears by that time stood at some £1,417. The letter continued:
“The full weekly rent of £41.08 is shown as due from 18 September 2000 and the Housing Benefit Office have not received a review form from you, and you have made no payments at all.
If you think you qualify for help with your rent you must complete a housing benefit immediately and bring it to this office, with the relevant proofs of your income.
If your circumstances have changed and you don't qualify for help, you must start paying your full weekly rent plus an extra amount to reduce your rent arrears.
If you do not make a serious effort to drastically reduce these arrears I will have no choice but to apply to the Bailiff for a warrant to evict you from your home.” 
17.	On 27 February 2001 Miss Morrissey wrote again to Mr Gill referring to the fact that he had failed to attend for an interview on 20th February as had been arranged, and giving notice that she had applied for an eviction warrant.
18.	On 6 June 2001 the Benefits Agency confirmed to the Council that Mr Gill was not in receipt of job seekers' allowance or income support. On 11 June 2001 Mr Gill returned the local authority claim form to the Council but he failed to indicate on the claim form that he was a Council tenant, as requested on the front page of the form. On 14 June Mr Gill called at the housing benefit office to inquire as to the progress of his claim. He agreed to complete and return another form later that day together with proof of his income, his National Insurance number, and a request for backdated housing benefit. The second form was subsequently returned to the Council but without details of his income. Mr Gill promised that proof of his income would follow as his employer was on holiday. Mr Gill also failed to provide his National Insurance number, but it was assumed by the Council that this would be provided at a later date together with details of his income.
19.	On 22 June a letter was sent to Mr Gill requesting proof of his earnings to be supplied within 28 days. On 25 June Mr Gill called into the main housing benefit office and was advised that if proof of his earnings was received within the 28‑day period housing benefit would be paid. To date, however, that information has not been provided to the Council.
20.	That, then, is the unfortunate background against which Mr Gill's application for permission for a second‑tier appeal comes to be made.
21.	In the light of the further information now available to the court which I have summarised, I can, for my part, see no basis upon which such permission could be granted. Although we have not been provided with a transcript of the judgment of Judge Kennedy QC, there is in the bundle an attendance note prepared by a representative of the Council which contains a full note of the judgment. It appears from this attendance note that, as indeed one would expect, Judge Kennedy QC went into the matter with great care and with particular reference to the position in relation to housing benefit so far as it could be ascertained from the material then before the court. In the result, he concluded that it would not be appropriate to allow any further suspension of the warrant for possession. He took the view that Mr Gill had made no real effort to pay off the arrears. According to the attendance note Judge Kennedy's judgment concluded as follows:
“I asked what Mr Gill has done. Answer, very little. Mr Gill is an intelligent man, has a degree in book‑keeping... He has done it once too often, I cannot entertain an appeal, it would be grossly unfair to the landlord and his appeal is not allowed.” 
22.	In all the circumstances I am for my part wholly unable to discern in the instant case any important point of principle or practice, or any other compelling reason why the Court of Appeal should hear the proposed appeal. On the contrary, this case seems to me, unfortunately, to be typical of a large number of cases with which the courts have to deal every day where for one reason or another a tenant has fallen into arrears with his rent and, despite being given opportunities to do so and having made offers to do so, has failed to pay off those arrears and has no prospect of doing so.
23.	In the circumstances I would for my part refuse permission to appeal.
24.	LORD JUSTICE MUMMERY:I agree.
(Appeal dismissed with costs; costs assessed at £2,690).