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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 >> Blackburn With Darwen Borough Council v Johnson [2001] EWCA Civ 300 (6 March 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/300.html Cite as: [2001] EWCA Civ 300

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BLACKBURN COUNTY COURT
(His Honour Judge Smith)

		The Royal Courts of Justice The Strand London WC2A Tuesday 6 March 2001

Tuesday 5 March 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal by Mr Thomas Johnson, who has appeared in person and addressed me with great moderation. Mr Johnson wishes to appeal from an order of His Honour Judge Smith made on 17 February 2000 in the Blackburn County Court. The judge gave judgment against Mr Johnson for the sum of £8,735-odd in proceedings commenced against him by the Blackburn with Darwen Borough Council ("the Council").
2. The proceedings were commenced on 29 May 1996. The Council claimed a principal sum of about £5,281 plus interest in respect of a liability which, on the Council's case, arose as long ago as October 1991. In October 1991 the Council's Department of Operations prepared and sent a schedule of works costed at £6,205-odd in respect of works carried out under statutory powers to premises owned by Mr Johnson at 112 Moorgate Street, Blackburn, Lancashire.
3. The statutory powers and provisions were in ss 189 and 193 of and schedule 10 to the Housing Act 1985, relating to the repair of houses which are not fit for human habitation. The Council's case is that it had received complaints from the tenant of the property, that it had inspected the property and had on 8 November 1990 served a notice under s 189 requiring Mr Johnson to carry out repairs by 1 February 1991. When these repairs were not carried out, the Council carried them out itself under s 194, after serving a further notice. The work was carried out in August and September 1991.
4. Mr Johnson paid a total of about £1,520 to the Council between October 1991 and June 1996. At one stage (and I think probably for a considerable period) he was paying off the liability at the rate of £10 each week under an arrangement with the Council. However, since June 1996 he has made no further payment.
5. There is no official transcript of the judgment, but in an approved note His Honour Judge Smith is recorded as saying that Mr Johnson had abandoned the main grounds in his defence and counterclaim, that is that works carried out were unnecessary or inadequately carried out, or both. The judge said that that was perhaps wise, as Mr Johnson had no expert evidence to call as to the works and he had sold the premises some years before. Mr Johnson has this morning confirmed to me that he did indeed sell the house and he was able to do so because the Council, despite having the possibility of registering a local land charge against the property, failed to do so. It seems that the Council was therefore deprived of that opportunity of recouping all or part of the money which it had spent on the works.
6. Instead Mr Johnson sought to rely on the last sentence of his defence and counterclaim, dated 17 June 1996. That was:

"I wish to query why this work was not done as an improvement grant, when I was on sickness benefit."

7. The judge investigated that point with the Council's Housing Standards Manager, Mr Paul Tomlinson, who was present in court on that day.
8. Housing law and housing grants have been subject to constant changes in recent years and the relevant provisions are now contained in the Housing Grants, Construction and Regeneration Act 1986. The provision on which Mr Johnson wished to rely was s 113 of the Local Government and Housing Act 1989, under which a local housing authority was under a positive duty to approve a landlord's application, but only if it fell within the quite complex provisions set out in section 110(1)(a) to (d) of the Act. Mr Johnson's case this morning is simply that the Council was under a duty to give him a grant if he applied for it, which he says he did. He, understandably enough, has not been able to explain to me in what way the application which he says he made complied with the requirements of s 110 of the Act. He has told me, and I well understand, that he was in a state of ignorance for a matter of years about the existence of s 113, although he says that he did take legal advice from a solicitor about that shortly before the hearing before Judge Smith.
9. Mr Johnson has produced a cutting from The Times newspaper of a decision made on 22 June 1999 by Hidden J in a case called R v Greenwich London Borough Council ex parte Glen International Ltd. That was a decision in relation to another aspect of the working of s 113; that is, whether it is necessary for the relevant works to remain uncompleted at the time when the application for the grant is made. It is not therefore directly helpful in the circumstances of this case, especially as there is doubt as to when (and, indeed, whether) a formal application for a grant was made.
10. The judge said that it was far from clear that Mr Johnson had ever applied for a grant. He does seem to have obtained grants on previous occasions, and he does seem to have made some preliminary enquiries at some stage, since the papers which he has produced include a copy of a circular letter (in very discouraging terms) from the Borough of Blackburn (as it then was). That circular letter is undated, but it must have been sent after October 1991 as it refers to the Council being forced in October 1991 to suspend all further approvals of grants.
11. Mr Johnson has produced a statement signed by Miss Anne Brogden which states that in July 1991 she delivered an application for a grant for 112 Moorgate Street to Blackburn Town Hall. That evidence was not before the judge. The Council did not admit that it had ever received an application in respect of 112 Moorgate Street, although it did accept that there had been grants in respect of other properties. The judge said that he had considered adjourning the matter in order that the Council could disclose documents on this issue, but he came to the conclusion that it would not be right to do so.
12. The judge reached that case management decision in circumstances where he was not sure (as I too am not sure) that s 113 would have applied in the circumstances of this case, even if Mr Johnson had pleaded and proved that he made a formal application for a grant in or about July 1991.
13. Moreover, Mr Johnson had, in or before June 1993, reached an arrangement with the Council to pay £10 each week in discharge of the liability. There is a letter dated 14 June 1993 which states:

"Providing that you maintain this arrangement the debt will effectively be an interest free loan and the charge eventually deleted from the local land register."

14. As I have mentioned, Mr Johnson has told me that in fact a charge was never registered, and he was able to sell the house free of any registered charge. I note also that under schedule 10 of the Housing Act 1985 Mr Johnson had a right of appeal against the original section 189 notice, which he did not exercise.
15. In those circumstances, with so much of this debt still unpaid in the year 2000 (some nine years after the work was carried out), and with the issue of s 113 not having been raised except in the single unspecific sentence I have quoted, it seems to me that the judge's decision was one which was well within the scope of his discretion. Although it has been a considerable disappointment to Mr Johnson, it was a decision which the judge was entitled to make in the exercise of his case management powers. An appeal against it would be hopeless, and I must therefore dismiss this application.
ORDER: Applications dismissed (Order does not form part of approved Judgment)