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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 >> Fletcher v London Borough of Brent [2006] EWCA Civ 960 (07 July 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/960.html Cite as: [2006] EWCA Civ 960

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WILLESDEN COUNTY COURT
HHJ BEVINGTON
5W105196

		Royal Courts of Justice Strand, London, WC2A 2LL
		07th July 2006

Mr Justice Peter Smith:

INTRODUCTION

1. There are 2 matters before us on this appeal. There is the application for permission to appeal by the Appellant against the order of Her Honour Judge Bevington in a reserved judgment given on 7th November 2005 by which she dismissed the Appellant's appeal brought under section 204 Housing Act 1996 ("HA1996") against a decision dated 11th July 2005 made by the Respondent Council on a review under section 202 HA 1996. The decision made on 11th July 2005 was that the Appellant was not homeless within section 175 HA 1996 so that the Council Respondent had no duty to secure accommodation for him and his son pursuant to section 193.
2. The second application is the Respondent's application for permission to appeal out of time against the costs order that Her Honour Judge Bevington made on 7th November 2005. The costs order she made (after written submissions) was that there be no order as to costs the Judge concluding that she was "being practical" as all the costs of the hearings were coming out of public funds anyway.
3. Both parties accepted that the Respondent's application only arose if it successfully opposed the Appellant's application for permission to appeal. Accordingly the court decided to defer consideration of the Respondent's application until it had determined the Appellant's application for permission to appeal.
4. Lord Justice Auld refused permission to appeal on 25th January 2006 on paper stating that the proposed appeal had no prospect of success.
5. The Appellant renewed the application for permission to appeal orally before Lord Justice Longmore on 16th February 2006. He ordered the matter to be adjourned and to be heard on notice to the Respondent and to be re-listed as an application for permission to appeal with appeal to follow if permission was granted. He also ordered a stay of execution against eviction from 41 Queens Court Kenton Lane be extended until the outcome of the hearing of the Appellant's application. This is the hearing of that adjourned oral application for permission to appeal.

NATURE OF THE APPEAL

6. The appeal is the second appeal and falls within CPR 52.13 and accordingly the Court of Appeal will not give permission unless it considers that:-

a) The appeal will raise an important point of principle or practice; or

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

7. The Appellant puts his case under ground b) on the basis that the learned Judge in her judgment was so wrong in law that the Appellant had a strong case for an appeal. He referred the Court to the decisions of the Court of Appeal under CPR 52.13 of Uphill (Widow and Administrator of the Estate of Malcolm Ernest Uphill) and BRB (Residuary) Ltd [2005] EWCA Civ 6 at paragraphs 18,23 & 24 and Cramp v Hastings BC [2005] EWCA Civ 1005 [2005] 4 All ER 1014 at paragraphs 64-66.
8. The latter case was itself a decision on section 204 HA 1996.

BACKGROUND

9. The proceedings concern a property ("the Property") known as 14 Bentham Walk Neasden London NW10. The Appellant and his wife initially occupied the Property under a periodic Tenancy Agreement ("The Tenancy Agreement") dated 6th October 1976 whereby the London Borough of Brent granted them a weekly periodic tenancy terminable on any Monday by either party giving to the other four weeks previous notice in writing.
10. When the HA 1980 came into force in October 1980 the tenancy became a Secure Tenancy.
11. The Appellant and his wife occupied the Property until the Appellant's wife on 18th August 2003 issued proceedings in the Barnet County Court under Part IV Family Law Act 1996. That court made an order on 16th September 2003 requiring the Appellant to leave the Property by 15th October 2003. He was prevented from returning until 14th April 2004.
12. On 15th October 2003 he submitted a homelessness application and was placed into temporary accommodation relying on depression and other health problems and the fact that the County Court had ordered him not to return to the Property. A medical assessment subsequently took place. On 4th February 2004 the Appellant's wife left the Property and went to a women's refuge and at the same time their son Tony who was born on 25th June 1989 started to reside with the Appellant.
13. A number of reviews ensued before the one which is the subject matter of the present appeal. On 26th April 2004 the occupation order was discharged by Barnet County Court. The Appellant's wife agreed to be responsible for the rent and utility bills at the premises from 20th October 2003 until 6th May 2004. That arrangement only operated as between the Appellant and his wife. For example it does not relieve him of his joint and several liability to the Respondent Landlord to pay rent under the Tenancy Agreement unless and until it is determined.
14. On 28th June 2004 the Appellant's wife served a notice to quit giving 4 weeks notice. That notice was given by her alone and stated under clause 1:-

"I/we hereby give you the Brent Housing Partnership NOTICE TO QUIT notice that I/we will terminate my/our tenancy at the above accommodation and that I shall/we will deliver up vacant possession of the premises detailed above which I/we hold under a Secure Tenancy on :-

MONDAY 28th June 2004 or the first Monday after that date being at least 4 clear weeks after service of this notice".

In paragraph 2 it contained a confirmation that all personal possessions, furniture, clothes and other property and possessions of the premises will be removed on or before the dates stated above.

15. Brent Housing Partnership manages the Property on behalf of the Respondent/Landlord. It is authorised to receive a notice and act on it but the reversion expectant on the Tenancy Agreement at all material times has vested in the Respondent.
16. Thereafter the Appellant's wife vacated the Property.
17. It is not clear what she took. Mr Watkinson who appears for the Appellant told the court on instructions that she took a washing machine but apart from that the entirety of the furniture remained in the Property. In addition it is apparent that over the next two years the Appellant continued to keep possessions and furniture at the Property. I am not in a position to form a view as to the extent of the occupation of the Property by the Appellant after the expiry of the notice to quit or the basis for said occupation.

EFFECT OF NOTICE

18. Initially the Respondent denied receiving the notice on 28th June 2004 and contended that it only received it in June 2005. However it is clear from the correspondence included in the appeal bundle that there were conversations between the Brent Housing Partnership and a Mrs O'Connor of the Women's Refuge indicating that a notice to quit was on its way (12th May 2004). She also wrote on 17th October 2005 to the Appellant's solicitors setting out her position as she understood it and corrected the date of the notice to quit in her letter of 18th October 2005 to 28th June 2004. Mr Russell who appears for the Respondent did not seriously argue that the notice to quit was not served according to its date on 28th June 2004 and for reasons which I set out further in this judgment did not argue that the notice to quit was ineffective to terminate the Secure Tenancy held by the Appellant and his wife.
19. As appears from the correspondence to which I have made reference there is clearly an issue over the extent of use of the Property by the Appellant and the basis of such use after the notice to quit expired.

REVIEW DECISIONS

20. On 16th June 2004 the Respondent made its first s 202 review decision and upheld a decision that the Appellant was intentionally homeless. On 23rd November 2004 the Respondent withdrew that review decision and agreed to make a fresh one and further agreed to pay the Appellant's reasonable costs. This arose because it was discovered that the Appellant's name had not been taken off the Tenancy Agreement.
21. On 5th May 2005 the second review decision took place where the Respondent formed the view that the Appellant was not homeless because there were suitable premises available to him namely the Property. The Appellant challenged that decision by an appeal to the County Court on 31st May 2005 and on 8th July 2005 the Respondent agreed to withdraw the section 202 decision again and carry out a further review, whereupon the Appellant withdrew his appeal.
22. The third review decision took place on 11th July 2005. This is the decision currently under challenge.

11TH JULY 2005 DECISION

23. The review of the decision is made under section 202 HA 1996 which gives an applicant a right to a review of (inter alia) any decision of a local housing authority as to what, if any, duty was owed to him under section 190-193 and 195-196. If upon such a review the applicant is dissatisfied with the decision on the review he is entitled to appeal that decision to the County Court under section 204 HA 1996. The appeal is on any point of law arising from the decision. Upon such appeal the County Court may make such order confirming, quashing or varying the decision as it thinks fit (section 204 (3) HA 1996). Mr Watkinson on the appeal told the court that the normal order made on appeal if the decision is to be set aside is to quash the decision and remit the case for a further review in light of the decision of the court when quashing the earlier decision.
24. The Review concluded that the Appellant was not homeless as defined by section 175 Part VII HA 1996 as he had accommodation available to him at the Property which it was reasonable for him to occupy. The reviewer therefore upheld the Respondent's decision letter of 8th March 2004 and concluded that the Respondent had no duty to re-house the Appellant. In conducting the review the letter set out that there were two questions namely whether the Property was available to the Appellant and whether it was reasonable for him to occupy it. In coming to the decision that was made on the review all the information on the file and representations made by the Appellant and his solicitor were taken into account as well as the information provided by the Area North Housing Office.
25. After reciting the exclusion of the Appellant from the Property by virtue of the court orders referred to above and their subsequent discharge the reviewer concluded that there were no longer any court orders or legal injunctions which prevented the Appellant from returning to the Property. It was also stated that the estate manager confirmed that the tenancy "remains available to you as they have not begun any legal action to repossess the accommodation even though you have rent arrears".
26. The crucial paragraph for the purpose of the appeal is the second paragraph on the second page of the letter which says:-

"Since my telephone conversation with Ms Asahene, the locks to 14 Bentham Walk, have been changed as a result of your ex-wife writing a letter to this Authority advising us that she wanted to terminate the joint tenancy. I spoke to Bhadreish Patel, Brent Housing Partnership, and obtained legal advice, and I am satisfied that the joint tenancy has not been terminated and that the accommodation remains available to you. Brent Housing Partnership also advised me that the housing office would provide you with the keys to re-enter the property as soon as you confirm that you wish to re-enter the property. They informed me that not only would they not take any steps to prevent you from returning to the accommodation they in fact want you to return to the accommodation. Given the above I am satisfied that the accommodation remains available to you".

27. The reviewer had been informed that the tenancy had not been terminated. No reason is given for that conclusion but it can be discerned from two of the Respondent's letters. On 5th July 2005 the Borough Solicitor wrote to the Appellant's solicitors stating his view that the termination notice was not sufficient to terminate the joint tenancy of the Property as it did not comply with the provisions of the Protection from Eviction Act 1977 in that it did not give the requisite 4 weeks notice period. This view was reiterated in the Brent Partnership letter dated 27th September 2005 to the Appellant's solicitors where it was stated that the notice was ineffective to terminate the joint tenancy unless it operated a break clause in the tenancy or surrendered the joint tenancy in which case the Appellant's consent to end the tenancy was necessary.
28. It was suggested to the Appellant that he could provide written confirmation agreeing to the termination of the tenancy which would make the position absolutely clear. The Appellant was unwilling to provide that confirmation because he would become he was advised "intentionally homeless" as his interest on this analysis would terminate by a voluntary act on his part. That is not to say that the Appellant is anxious to occupy the Property. Nothing could be further from the truth.
29. In his initial appeal to the County Court the Appellant set out a number of grounds as to why it was unreasonable to require him to occupy the Property. He abandoned those after that decision and does not now contend that the decision that it is unreasonable to require him to occupy the Property was unlawful. Longmore LJ in the judgment delivered on 16th February 2006 suggested that the parties should get together and agree the terms of the occupation of the Property. At the out- set of the appeal the Court enquired as to what had happened as a result of that exhortation from Longmore LJ. The short answer was absolutely nothing. The reasons appear to be twofold and were quite properly categorised by Lord Justice Rix in argument as "shadow boxing". The Appellant is determined not to occupy the Property and his Counsel made that position quite clear on the appeal despite the withdrawal of the contentions that it was unreasonable to require him to occupy it. Equally the Respondent was somewhat coy to put it mildly about the position of arrears which have accrued on its analysis that the Tenancy Agreement was not terminated by the notice to quit given by the Appellant's wife.
30. Nevertheless it seems to me that given the withdrawal of the stance of unreasonableness by the Appellant an extraordinary amount of public funding as regards legal costs is being expended on this case. If the appeal is successful I have little doubt that the Respondent will determine that it is reasonable to re-house the Appellant in the Property and I have little doubt that one way or another the Appellant will seek to challenge that decision notwithstanding his abandonment of unreasonableness in the context of the present appeal. However that is not for consideration in this appeal.
31. The Review concluded that the Appellant was not homeless as defined by section 175 HA 1996. That section provides as follows:-

"175.--(1) A person is homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he:-

(a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court,

(b) has an express or implied licence to occupy, or

(c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.

(2) A person is also homeless if he has accommodation but--

(a) he cannot secure entry to it, or

(b) it consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.

(3) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.

(4) A person is threatened with homelessness if it is likely that he will become homeless within 28 days".

32. That section was derived from section 58 Housing Act 1985 which was of a similar effect. That section was referred to but not directly adjudicated upon by the House of Lords in Regina v Brent LBC ex p. Awua [1995] 1 AC 55 where Lord Hoffmann (page 72) said this:-

"These remarks seem to me still as true and perceptive as they were in 1986. I would therefore hold that the duty of the local housing authority to an unintentionally homeless person in priority need under section 65 (2) is simply to secure that accommodation becomes available for his occupation. Under the substituted section 69 (1), the accommodation must be "suitable" but this does not import any requirement of permanence. In determining whether accommodation is "suitable" the council is instructed to "have regard to Part IX (slum clearance), X (overcrowding) and XI (houses in multiple occupation) of this Act." This points to suitability being primarily a matter of space and arrangement, though no doubt other matters (such as whether the occupant can afford the rent) may also be material. But there is no reason why temporary accommodation should ipso facto be unsuitable. If the tenure is so precarious that the person is likely to have to leave within 28 days without any alternative accommodation being available, then he remains threatened with homelessness and the council has not discharged its duty. Otherwise it seems to me that the term for which the accommodation is provided is a matter for the council to decide. In some cases, such as a person in priority need because he is old, mentally ill or handicapped (section 59(1)(c)), the council may decide to provide permanent accommodation as soon as reasonably possible. In other cases, such as the pregnant woman in my earlier example, it may prefer to use temporary accommodation and wait and see. But provided that the decision is not Wednesbury unreasonable (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 233) I do not think that the courts should lay down requirements as to security of tenure."

The question before their Lordships was whether the appellant was intentionally homeless, the local authority having offered suitable accommodation to her while she was in temporary accommodation, which she had refused and subsequently evicted. It is clear that Lord Hoffmann's reference to the 28 day period as precarious tenure is a reference to section 58 (4) HA 1985 (now section 175 (4)). Whatever the nature of the person's interest, if he is threatened with homelessness and may apply to a local housing authority under Part 7 HA 1996 to the extent that he is likely to become homeless within 28 days he is homeless. Thus an applicant might satisfy initially the interests set out in section 175 (1) (a) or (b) but the nature of those interests might become precarious if he is threatened with homelessness within 28 days.

33. The Review decision was made entirely on the basis of the advice received that the Tenancy Agreement had not been terminated. There was no consideration as to whether the Appellant had a licence although there was consideration of the fact that he had allegedly been returning to the Property on a regular basis and that his belongings remain there. Those items were considered in the context of assertion by the Appellant that he was fearful of returning and not in the context of investigating whether (other than by virtue of the Tenancy Agreement) the Appellant had any other interest in the Property in particular by virtue of an express or implied licence (s 175 (1) (b)). As I have said the Appellant has abandoned any basis for challenging the lawfulness of the decision as to reasonableness of the Property itself.

EFFECT OF NOTICE TO QUIT

34. In my view, contrary to the advice the Review Officer had apparently received, the notice to quit served by the Appellant's wife was effective whether or not he concurred in it being given. One of two joint tenants can unilaterally terminate the tenancy irrespective of the concurrence or knowledge of the other co-owner see for example Harrow LBC v Qazi [2004] 1 AC 983 at paragraph 113 per Lord Scott of Foscote.
35. In addition the suggestion in the correspondence that the notice to quit did not give the requisite 4 weeks notice is incorrect see for example Notting Hill Housing Trust v Roomus [2006] 1 WLR 1375 C.A.
36. Accordingly the Review decision was fatally flawed in law.

REVIEW BY THE JUDGE

37. As I said above the appeal to the Judge was itself a review under section 204 HA 1996. In paragraph 5 of the judgment the learned Judge set out the questions she was asked to consider. First was the question of the validity of the notice to quit. The second ground was that the Council erred in finding that the Appellant could have resided at the premises since April 2004 and the third to fifth grounds were as to reasonableness which is not pursued.
38. In paragraph 6 she set out that decisions taken by public bodies are reviewed by the County Court by way of judicial review and she stated that it was not for her to substitute a decision which the County Court Judge might have made on similar facts. The crucial paragraph is paragraph 7 which says as follows:-

"First I have to consider whether the Local Authority's was in error when deciding that the Appellant was not homeless pursuant to Section 175 of the Act. I have heard argument on behalf of the Appellant that the Notice to Quit was indeed valid, and that therefore Mr Fletcher was no longer entitled to occupy the premises at number 14 Bentham Walk when the Notice to Quit became effective. It is an arguable point whether the Notice to Quit, whenever it became effective (which point itself is arguable), operates to terminate Mr Fletcher's joint tenancy. One guide here is the intention of the parties. The Local Authority, as landlords, are clear in their correspondence in the recent past, that Mr Fletcher is entitled to occupy the premises. Although there was some confusion or uncertainty on that point by the Local Authority for a period in the past, I am satisfied that at the time relevant to these proceedings, the Local Authority had satisfied itself and communicated to Mr Fletcher, that his right to occupy number 14 continued. I am not, I believe, required to decide whether this was a licence or whether the tenancy in Mr Fletcher's name continued. I am inclined to the view that the uncertainty, particularly as to the effective date of the Notice to Quit, rendered it invalid, and that the tenancy continued. However, whether the tenancy exists or whether a licence has now been granted, it would in my judgment offer a home which Mr Fletcher was entitled to occupy. Indeed, Mr Fletcher has continued to use the premises as storage, as I have said, visiting from time to time, but not as I understand it living and sleeping at the address. I am of the view that Mr Fletcher has continued to occupy number 14 after Mrs Fletcher's exclusion order ceased to have effect. I am satisfied that the Local Authority were not inaccurate nor unreasonable in deciding that the property was, and is, available for Mr Fletcher's occupation. He has been invited to accept the keys, which were made available in June 2005, after a gap of some four weeks approximately, when the locks were changed by the landlord, although he was at the time invited by the landlord to collect the new keys from them. It follows from what I have said that on the first and second grounds of appeal, I am satisfied that Mr Fletcher could have resided at the premises since April 2004. On grounds 1 and 2, therefore, I conclude that Mr Fletcher was not statutorily homeless, and that the premises are available for him to occupy, either pursuant to a secure tenancy entered into in 1972, more likely in my judgment, or under a licence from Brent evident in their subsequent correspondence".

39. In that paragraph her first conclusion is that it is arguable whether notice to quit became effective or whether it operated to terminate the Appellant's joint tenancy. She expresses the view that the intention of the parties is one guide and the Respondents as Landlords were clear in their correspondence that the Appellant was entitled to occupy the premises.
40. With respect to the learned Judge the question of the intent of the Respondent local authority is irrelevant. It is the intent of the giver of the notice. By the notice the Appellant's wife intended to terminate the joint Secure Tenancy under the Tenancy Agreement and in law she achieved that. Whether or not the Respondents wanted that to happen is irrelevant. The second point is that there was some debate that the Appellant might have had a licence to occupy the Property after the notice terminated. She expressed the view that she was not required to decide whether there was a licence or whether the tenancy continued.
41. With respect to the learned Judge that does not satisfy in my view the requirements of section 175 HA 1996. The section can only be satisfied if the Appellant either has an interest at the time for consideration (namely the review) which confers on him an entitlement to occupy (subsection (a)) or he has an express or implied licence to occupy (subsection (b)).
42. The suggestion that he had a licence was entirely contrary to the Respondent's attitude which was throughout that the tenancy continued. Second the difficulty about the licence is determining the nature of the licence. Mr Russell sought to support the learned Judge's decision that it was not necessary for her to determine whether or not there was a tenancy or a licence. It is difficult to see how the section can be satisfied unless one knows the nature of the interests and then satisfies oneself that the relevant interest confers on the Appellant a right to occupy the Property. There is no problem if he was a Secure Tenant but, for the reasons I have set out above, this was not the case. There may be a basis for suggesting that he has some kind of licence express or implied to occupy the property. However there has been no inquiry as to the nature of that licence or its terms. This is important. For example the licence to occupy a dwelling house conferred by the Respondent would be a Secure Licence just like a Secure Tenancy see section 79 (3) HA 1985. In that context if the Appellant had a Secure Licence he would have such an interest as to justify a conclusion that he was not homeless. Conversely he might only have had an express or implied licence to store his furniture and possessions there temporarily whether for payment or gratuitously. Such an arrangement might not give rise to a Secure Licence and might not amount to a licence to occupy the Property as a residence.
43. It is possible that an actual decision as to whether an interest created a lease or a licence would not be necessary. For example if a document which purported to be a licence might in law be a lease but whatever the nature of the arrangements there was a Secure Tenancy or licence an investigation as to whether or not the document created a lease or licence would be sterile. Such a possibility is likely to be rare. It is difficult however to see how, as I have said a decision can be made that the Appellant's interest under a licence (if any) means that he is not homeless until the nature of that interest is actually determined and its terms.
44. Merely because the local authority Respondent wishes to make the Property available is in my view insufficient. It is not a question of offering alternative accommodation but examining the precise terms upon which the Property is alleged to be available for occupation by the Appellant at the date for determining that issue, namely the Review date (although Mr Watkinson conceded that if the circumstances had changed from the Review date those changed circumstances ought to be taken into account when the matter is considered by the Court).
45. I regret to say that I am unable to agree with the learned Judge's conclusion that it was not necessary to determine precisely the nature of the Appellant's rights if any in the Property.
46. Accordingly I am of the view that the learned Judge was wrong in law in first deciding that it was arguable whether or not the wife's notice to quit had terminated the Tenancy Agreement and second that is was unnecessary for her to determine in the alternative whether the Appellant had an interest and if so the nature of that interest if it was not under the Tenancy Agreement.
47. I therefore accept that the case is within the exceptional grounds of CPR 52.13 (b) in that there is some other compelling reason for the Court of Appeal to hear it.
48. I would therefore grant permission to appeal and allow the appeal.
49. In doing so I note with concern the amount of time this case is devouring in legal costs. With the abandonment of his unreasonableness arguments I am not sure where the Appellant intends to go in his continual refusal to accept the Property. It is unfortunate that the parties did not avail themselves of the opportunity of addressing this issue. The obstacle may be the question of any arrears but given my view that the tenancy terminated with the notice to quit there can be no question of arrears arising after the expiry of that notice. There may be a question of paying a reasonable sum for the occupation or use of the Property. I will say nothing further about that.
50. In my view the matter should be remitted to the Review Officer to reconsider his decision in light of our judgment on the basis that he investigates whether or not the Appellant has a licence express or implied which entitles him to occupy the Property and in that investigation should determine what the terms of any such licence (if any) are.

THE RESPONDENT'S APPEAL

51. Given my decision on the appeal of the Appellant the Respondent's application should be refused save as to the question of costs.

Lord Justice Mummery :

52. I agree with Peter Smith J that this appeal should be allowed.
53. As appears from the detailed account of the facts, the proceedings and the legislation in his judgment, this case has to be remitted for re-consideration by the Reviewing Officer. There are two reasons for this. Both of them turn on the interpretation and application of section 175(1) of the Housing Act 1996.
54. The first arises on the requirement in section 175(1)(a) that the person claiming to be homeless has no accommodation available for his occupation which "he is entitled to occupy by virtue of an interest in it."
55. The Reviewing Officer proceeded on the basis, which was wrong in law, that Mr Fletcher has an interest in 14 Bentham Walk because the notice to quit served on the respondent council by his wife on 28 June 2004 was ineffective to determine the tenancy. As my Lord explains by reference to the authorities cited in paragraphs 34 and 35 of his judgment, the joint tenancy was validly determined by the wife's notice. On the notice taking effect Mr Fletcher ceased to have "an interest" by virtue of which he was entitled to occupy the property. There was no longer any subsisting tenancy which entitled him to occupy the property.
56. The error of law on the notice to quit point was not corrected on the appeal from the Reviewing Officer to the County Court, as the judge hearing the appeal did not appreciate the significance of whether the tenancy had been determined by the wife's notice to quit. The judge wrongly took the view that it was not necessary to decide whether there was a licence or whether Mr Fletcher's tenancy continued. Her view was that, whether Mr Fletcher had a tenancy or a licence, the property would offer a home that he was entitled to occupy. But it had never been determined whether he had a licence to occupy the property, because it was wrongly thought that he was still a tenant of it.
57. The second reason for remitting the matter flows from the first reason. Because the Reviewing Officer considered Mr Fletcher's application on the basis that he was still a tenant, he did not even get to the point of considering the possibility that section 175(1)(b) applied by reason of Mr Fletcher having "an express or implied licence to occupy" 14 Bentham Walk. This explains why he made no findings of fact and expressed no conclusion on this particular issue.
58. It is true that there is some evidence about the state of the property and about Mr Fletcher's visits to it after the termination of the tenancy. This court, which is limited in its jurisdiction to correcting errors of law, is not in a position to make findings of fact on an issue that was not even addressed by the fact finding body.
59. The matter must be remitted for the Reviewing Officer to re-consider on the basis that Mr Fletcher did not have a tenancy interest in the property after the notice to quit served by Mrs Fletcher took effect. It will be necessary to investigate and establish the facts that may be relevant to an express or implied licence by the council for Mr Fletcher to occupy the property.

Lord Justice Rix :

60. I agree with both judgments, which I have had the advantage of reading in draft.