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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Brittain v Haghighat & Anor [2009] EWHC 90 (Ch) (12 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/90.html Cite as: [2009] BPIR 268, [2009] EWHC 90 (Ch), [2009] 1 FLR 1271

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 January 2009

The Deputy Judge

Introduction

1. This is the second Judgment I have given in relation to the Application made by the Applicant trustee in bankruptcy (whom I shall call "the Trustee") for, among other relief, an order for possession and sale of a leasehold property at 82 Eamont Court, London NW8. This property I shall call "the Property". The Application was started by an application notice dated 24 March 2006.
2. The Trustee was appointed to be the trustee in bankruptcy of the First Respondent, Mr Hamid Haghighat, with effect from 8 May 2002. The latter was adjudged bankrupt on 27 February 2002. The Second Respondent, Mrs Nasrin Haghighat is his wife. In this Judgment I refer to her for convenience by that name, the name used in the title to these proceedings. It may be that she prefers to be known as Mrs Nasrin Darabadi, her name used by the two experts who met her and who gave evidence on this Application.
3. Mr Haghighat and Mrs Haghighat are living in the Property with their three children. All three children are now adults, having been born between 1985 and 1989.
4. Sadly the eldest, Mani, is seriously disabled. As described by the two experts, he has congenital quadriplegic cerebral palsy with learning disability and epilepsy, being doubly incontinent, with no speech and little comprehension, and taking little food by mouth but instead receiving the bulk of his fluid intake and nourishment overnight through a percutaneous gastronomy tube. He requires continuous care. His circumstances are central to what I have to decide.
5. The second child, Sami, will have taken his A-Levels in May 2007, and is by now aged about 20. The third child, Mania, is now aged about 19 and is likely to have taken her A-Levels in May 2008. I was told nothing more about the present circumstances of either Sami or Mania.
6. The Property has been the family home of the Haghighats since about 1989, although there was a period in the mid-1990s, down to about 1999, when Mr Haghighat was living elsewhere separate from his wife, their marriage then being in difficulty (as it appears still to be).
7. As explained in my earlier Judgment, Mr Haghighat is the registered proprietor of the Property with title absolute. However when the Applicant became his trustee in bankruptcy in 2002 the title vested in her as part of Mr Haghighat's estate. The Property is Mr Haghighat's only asset in his bankruptcy. There is no other known asset.
8. The Property may be worth some £375,000 even in today's unsettled market. It is subject to a charging order absolute in favour of a Mr Chamberlain and a Ms MacLennan. They are judgment creditors of Mr Haghighat and were the creditors on whose petition the bankruptcy order was made. The amount secured by the charging order is, in round terms, £242,000; the amount of the debt due to these creditors is some £309,000. However, besides the debt due to Mr Chamberlain and Ms MacLennan, there is some £70,000 due to the Legal Services Commission; this I imagine, represents fees or costs arising in respect of previous legal proceedings in which Mr Haghighat has been involved. Further, there is at least £206,000 of fees, costs and expenses payable in the bankruptcy. In summary, if there were now to be a sale of the Property there will still be a substantial shortfall in the bankruptcy.
9. At this point it is convenient to refer to my first Judgment. When the Application was called on on Monday 1 December 2008 Mr Haghighat was absent from court. As I explained, he is representing himself on this Application. His wife on the other hand, who has legal aid, has legal representation. Her Counsel, Mr John Robson, explained to me that Mr Haghighat had attended at court that morning but had chosen to leave before the application was called on and had returned home in order that he could care for Mani while Mrs Haghighat, who would otherwise have been caring for Mani, came to be present in court.
10. On the Monday I proceeded with the application in Mr Haghighat's absence, dealing first with a preliminary question: this is the question whether it is open to Mr and Mrs. Haghighat to contend that, notwithstanding a previous judgment given in May 2000, by reason of a disposition by Mr Haghighat of the beneficial interest in the Property to Mrs Haghighat said to have been made in about June 1995 by or evidenced by a written Declaration of Trust, the Property is not an asset comprised in his estate and now vested in the Trustee. I determined that question in the negative, and on the following day set out my reasons in my first Judgment, which I handed down in writing at the resumption of the hearing. Mr Haghighat was present at the time and remained in court for the rest of the hearing that day.
11. At the conclusion of the hearing on that day, Tuesday 2 December 2008, when I said that I would reserve my judgment on the substance of the Application after having heard argument from the Trustee by her Counsel (Ms Raquel Agnello), from Mrs Haghighat by Mr Robson and from Mr Haghighat in person, Mr Haghighat rose and told me that the previous day he had not been present because he had been sent away from court by his wife's Counsel, Mr Robson, being told by him that he could not present his case to the court. That was not, of course, what I had been told by Mr Robson the previous day.
12. I nevertheless declined to set aside my ruling on the preliminary issue and to hear further argument. My reasons were as follows. Mr Haghighat was absent from the hearing on Monday 1 December 2008 knowing that the hearing was about to take place. No application was at the time made by him for the case to be adjourned to allow both himself and his wife to be present in court at the same time, as they were the next day. Further, in advance of the hearing on Monday 1 December 2008 I had looked at the very lengthy statement made by Mr Haghighat in relation to the present application, to see what was said about the 1995 Declaration of Trust described in my first Judgment; and in the course of the hearing on 1 December 2008 I had had passages in the statement relevant to the particular matter for decision drawn to my attention by Counsel. I could not see that any submissions might be made on that particular matter by Mr Haghighat over and above the submissions made on his wife's behalf by Mr Robson. As explained, I already had been shown Mr Haghighat's evidence so far as relevant. I could not see, therefore, that Mr Haghighat had any reasonable prospect of arguing successfully that I should come to a different conclusion on the preliminary issue from that set out in my first Judgment.
13. With this introduction I turn to the substance of the Application.

The applicable law

14. This is, so far as concerns Mrs Haghighat, an application under section 33 of the Family Law Act 1996 ("the FLA") as applied by section 336 of the Insolvency Act 1986 ("IA 336); and, so far as concerns Mr Haghighat, under the same section of the FLA as applied by section 337 of the Insolvency Act 1986 ("IA 337").
15. By the FLA Mrs Haghighat has matrimonial home rights in relation to the Property, albeit that there is no entry on the Property's register in respect of such rights. In principle these rights continue to bind the Trustee and persons deriving title under her. However, on the application of the Trustee for possession of the Property made against Mrs Haghighat under section 33 of the FLA as applied by IA 336(2) it is open to the Court to make "such order … as it thinks just and reasonable having regard to" five specified matters. These, set out in IA 336(4), are (a) the interests of Mr Haghighat's creditors, (b) the conduct of Mrs Haghighat so far as contributing to Mr Haghighat's bankruptcy, (c) the needs and financial resources of Mrs Haghighat, (d) the needs of Mani, Sami and Mania, and (e) all the circumstances of the case other than the needs of Mr Haghighat.
16. By IA 336(5), the Application being made more than a year after the appointment of the Trustee, the court is directed to "assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt's creditors outweigh all other considerations". I do not regard that provision as requiring the court to ignore all the other considerations referred to above apart from that in paragraph (a), assuming that the circumstances of the case are not exceptional; rather, in that situation the paragraph (a) consideration is to be preponderant.
17. However, the first question to decide is whether in the present case the circumstances are exceptional. If they are, then in approaching the exercise directed by IA 336(4) the court is to decide for itself the weight to be attached to the various considerations with a view to making an order which is just and reasonable having regard to those considerations, no one consideration being necessarily preponderant. But the circumstances are not exceptional unless they are outside the usual "melancholy consequences of debt and improvidence", in the words of Nourse LJ, or are "compelling reasons not found in the ordinary run of cases", in the words of Bingham LJ (in Re Citro (Domenico) (A Bankrupt) [1991] Ch 142 at 159-160).
18. In the ordinary run of cases, where a bankrupt's house is a matrimonial home shared with a spouse and children, the loss of the house to pay the bankrupt's creditors will almost certainly be a misfortune for the family, but will not for that reason by itself mean that the circumstances are exceptional. Typically (if that is the correct way of describing something exceptional) but not necessarily what makes the case exceptional will be some unusual medical condition. In Hosking v Michaelides [2006] BPIR 1192, by way of illustration, the spouse's medical condition was such that, according to the evidence, for the mental and physical health of the spouse the loss of the house would be "disastrous", and could aggravate her "dangerous" behaviour both to herself and her children (see at paragraph [71] of the judgment of Paul Morgan QC): as a consequence the conclusion in that case (at paragraph [73] of the judgment) was that the spouse's physical and mental circumstances "do form an exception, out of the ordinary course and are unusual or special or uncommon".
19. By IA 337 Mr Haghighat is to be taken to have matrimonial home rights similar to those enjoyed by his wife. The Trustee may, however, apply to this court to obtain possession of the Property from Mr Haghighat. On such an application the court is, by IA 337(5), directed to make such order as it thinks just and reasonable having regard to four matters, corresponding to those in paragraphs (a), (c), (d) and (e) under IA 336(4) set out above. Again, IA 337(6) contains provision which corresponds to that in IA 336(5), which I have already summarised.
20. In the present case, therefore, the material differences between the considerations applicable so far as concern Mrs Haghighat on the one hand and those applicable so far as concern Mr Haghighat on the other are that (i) in Mrs Haghighat's case, but not Mr Haghighat's case, a relevant consideration is that in IA 336(4)(b) (namely any conduct on the part of Mrs Haghighat so far as contributing to her husband's bankruptcy), and (ii) in the case of each of the two the particular individual's own financial resources are relevant, in Mrs Haghighat's case (but not her husband's case) the individual's needs also being relevant.
21. So far as these two matters are concerned the position is as follows. First, as it seems to me, Mrs Haghighat may fairly press upon the court that she has been innocent of any conduct which has contributed to Mr Haghighat's bankruptcy. Certainly Ms Agnello has not suggested that there is any evidence of any such conduct which might weigh against her.
22. Second, I was told by Mr Robson that Mrs Haghighat has no income or capital of her own, her only financial support coming from the State.
23. I was not told anything of Mr Haghighat's financial resources, save to say that the Property is his only known asset at this stage. I do not know whether or not he has any sort of income-producing employment or occupation. I assume that he has none. No suggestion was made by anyone in the course of argument, and there is nothing in the evidence to suggest, that there is any prospect of Mr Haghighat paying for any, let alone any suitable, alternative accommodation for his family or indeed making any financial contribution to their accommodation.
24. Mrs Haghighat's needs, I should add, are bound up with those of Mani. These I consider below.
25. As a postscript to the differences between IA 336 and IA 337, so far as concerns the Application, there is a final comment. Having regard to the obvious overlap between the considerations brought into play by the two separate provisions, Ms Agnello submitted that in effect Mr Haghighat's could not have a better prospect of resisting an order for possession than his wife; that, in other words, if the Trustee were to succeed under IA 336 she would succeed under IA 337, while the converse was not necessarily the case. I agree with this, for the reason that IA 337 excludes from consideration matter which could weigh against the making of an order but which is not excluded under IA 336.
26. There is, however, a separate point. As appears from the evidence given by the two experts, referred to below, it is by no means clear that Mr Haghighat will go on living at the Property even in the absence of an order for possession being made against him: the experts were given to understand, and made their reports on the assumption (not corrected in any evidence before me) that Mr Haghighat intends at some point to move away, Sami going with him.

Exceptional circumstances

27. For reasons which will become apparent, I have no doubt that the particular needs of Mani, and by extension the needs of Mrs Haghighat, arise from Mani's condition, and point to Mani and his mother being allowed to stay in the Property as long as Mrs Haghighat wishes and is caring for Mani at home. Their needs, and the way those needs arise, are such as to make the circumstances of the case exceptional within IA 336(5) and IA 337(4). Rightly, as it seems, to me Ms Agnello did not really press me to hold otherwise.

Relevant considerations

28. The interest of Mr Haghighat's creditors requires the Property to be sold by the Trustee as soon as possible. There is no prospect of any other return being made to the creditors, whether to make any contribution to their claims or to pay the bankruptcy costs. What is also clear is that there can be no worthwhile sale unless the Property is to be marketed with vacant possession: neither Mr Haghighat nor Mrs Haghighat suggested that they or a family member or benefactor might offer anything at all to the Trustee to take the Property off the hands of the Trustee while leaving Mr Haghighat, Mrs Haghighat and their children in occupation.
29. What is more, the Property if unsold represents a liability for the Trustee, absent any disclaimer. Among the bankruptcy costs is an amount of some £24,000 paid by the Trustee to the Property's lessor in respect of arrears of ground rent and service charges and legal fees to avoid forfeiture. From the property register is seems that the ground rent is some £350 per annum; but the annual service charges are likely to be a material outgoing. I was not, however, told the precise amount.
30. It follows that, in the absence on this Application of an order for possession of the Property at some definite date, the creditors' hope of receiving anything at all will be if they are prepared indefinitely to remain liable, directly or indirectly, for the ground rent and service charges. They would have to wait until such time, quite possibly in many years to come, when there is a material change, for example in the health of Mani or his mother, which means that Mani ceases to live with his mother at the Property.
31. The clear indication of IA336 and IA337 is that as a general proposition this interest is important, becoming paramount (in the absence of exceptional circumstances) one year after the appointment of the Trustee: that one year is, so far as I can see, time when ordinarily arrangements might conveniently be made so that after that time the Property could be sold without having completely sacrificed the interests of all others in keeping the Property unsold. The Application was not made in the present case until nearly four years after the appointment of the Trustee.
32. Against this is the question of the needs of Mrs Haghighat on the one hand and on the other of each of her three children. Also I have to consider all the other circumstances of the case apart from Mr Haghighat's needs.
33. So far as Mrs Haghighat and Mani, at least, are concerned the choice seems to be between continuing to live at the Property and being rehoused by Westminster City Council.
34. So far as Sami and Mania are concerned, I have been given little to go on. No doubt it would be their preference, and the preference of their parents, that until marriage they should continue to live with their parents (at any rate while their parents live together); but it has not been suggested that there is any reason why they are unable to provide for their own accommodation, should that be necessary. As the case has been presented, it would seem that the Council will rehouse them, as well as Mr Haghighat, as a family if they are living with Mrs Haghighat and Mani.
35. Two experts have given evidence, the evidence of each being set out in a written report. One is Dr R.C. Peatfield MD, FRCP. He is a consultant neurologist in active practice, having been a consultant since about 1989. He was asked to give his opinion concerning the present condition of Mani, commenting also on his present circumstances and the consequences for him of a variety of possible alterations in those circumstances. Before giving his report he visited the Property where he saw Mr Haghighat, Mrs Haghighat and Mani.
36. The other expert is Ms Gitte Rinds, MA, PgDip, COTDip. She is a state registered occupational therapist (in Great Britain and Denmark) with a Masters Degree in Design and Research for Disability. She specialises in the prevention of disability in activities of daily living and at work, including the design of access for disabled people. The purpose of her report was to comment on the housing needs relating to Mani Haghighat's accommodation. To give her report she interviewed Mr Haghighat and Mrs Haghighat at the Property.
37. In her report Ms Rinds described Mrs Haghighat as "mother and sole carer of Mani, wife (separating)". Ms Rinds explained that the only assistance which Mrs Haghighat receives from the family members towards Mani's care is from "the estranged husband", this assistance being in relation to the carrying of Mani between his bed and his wheel-chair, and between his wheel-chair and the shower. But it is clear that Ms Rinds understood that in the foreseeable future Mr Haghighat and Sami could be moving out of the Property. So, for example, in the context of the possible alterations, discussed later, Ms Rinds referred to "the three family members remaining together": the three individuals being referred to are Mrs Haghighat, Mani and Mania, as is made clear (a) by an earlier reference, in Ms Rinds' report to the sleeping requirements of these three individuals, (b) by her comment that Sami "is reported to be planned moving out of the household with his father", and (c) by her comment of Mr Haghighat that he is "reported to be moving to other accommodation".
38. Dr Peatfield also commented on the fact that Mr Haghighat and Mrs Haghighat are estranged, adding that a divorce is pending and that when the divorce is finalised Mr Haghighat and Sami will move out of the Property.
39. In her report Ms Rinds gives a detailed description of the Property. It comprises a two-bedroom ground floor flat in a several storey complex with access to a private patio and a large communal garden. One bedroom is 2.5 metres by 2.75 metres. The second is 3.2 metres by 3.7 metres. There is a living room of about the same size as the larger bedroom, as well as an open area/hallway used also as a dining room; a small bathroom in which the bath has been removed and replaced with graded-floor shower; and a small kitchen which appears not to be large enough to be used conveniently for meals. Through the kitchen it is possible to reach the garden by a back-door, with a steep, narrow and short permanent ramp. The front entrance to the building and the Property's front door has steps: for a wheel-chair to pass up these a mobile ramp is used.
40. The smaller bedroom is used by Mani although, as Ms Rinds pointed out in her report, it is further away from the bathroom than the larger bedroom: the larger bedroom is directly opposite the bathroom. It appears that the larger bedroom is used by Mrs Haghighat, and shared with her daughter. Mr Haghighat and Sami sleep in the living room.
41. It appears that in about 2004 a period of respite was tried for the family, with Mani spending time away in a residential setting at a place called Alison House. This was a failure, with Mani subsequently being admitted to St Mary's Hospital for emergency treatment, where he stayed for three weeks.
42. Dr Peatfield points out that there are "moral and social as well as financial advantages of keeping Mani in the clinical care of his mother rather than in an institution". Mrs Haghighat has been self-sacrificing in her caring for Mani at home.
43. Mani's nocturnal sleeping appears to be disturbed. It seems he makes noises and requires attention including for medical care. Ms Rinds records that "nocturnally Mani is checked at least twice and was reported to often spend long hours awake where Mrs [Haghighat] would be with him to try to limit the sleep disturbance for other family members". As Mrs Haghighat provides Mani with care day and night, Ms Rinds points out that "her sleep is considerably disturbed on a regular and ongoing basis".
44. In his bedroom Mani has an electrical, height adjustable, bed. In the past a mobile hoist has been used, apparently, to move Mani from his bed, whether to his wheelchair in the hall or to the bathroom. This hoist is no longer in use, and has not been since 2006 or so. The machine was apparently heavy to move. It could be used for mechanically transferring Mani from his bed to chair, from chair to shower and so on; but it would itself have to be moved and positioned for each transfer and is therefore cumbersome.
45. I have already mentioned Ms Rinds' evidence to the effect that at present moving Mani about within the Property involves manual lifting at the least to and from a wheelchair. So, to move him between bed, the shower and the living room Mani is carried manually for at least part of the move. Dr Peatfield confirms that "for the time being" and in the absence of a hoist "both parents are needed to lift [Mani] onto a wheelchair for" the transfer from his bed to the shower. In other words at present all the lifting and moving of Mani is essentially by hand.
46. Ms Rinds makes it clear that the present means of moving Mani about, depending as its does upon his being lifted manually, typically by Mrs Haghighat with her husband, is unsafe for Mani and unsatisfactory and possibly harmful to those moving him. Specifically Ms Rinds expressed concern about the risk of Mani being dropped while being moved, and about the risk of Mrs Haghighat suffering lifting injury to her back; indeed Ms Rinds described this risk as a "high risk of musculoskeletal injury".
47. Mrs Haghighat has arthritic lower back pain for which she is currently treated with physiotherapy and daily pain relief. The symptoms are aggravated by the physical strain on the spine of lifting Mani or of other heavier physical activities and, it seems, have recently involved both chronic pain which interferes with sleep and is not fully relieved by pain relief, and also a stiffness and a reduced range of motion.
48. Mrs Haghighat has been diagnosed with depression for which she was given medication; this she was unable to take due to side effects. Her depression has become worse following increased difficulties in caring for Mani and raised levels of fatigue.
49. It is easy to sympathise with Mrs Haghighat. She provides care for Mani, day and night, day in and day out, without any greater relief than when Mani is able to attend the Droop Street day care centre, referred to later. Coupled with the physical work involved, as well as the continuous responsibility for Mani's daily care, Mrs Haghighat suffers sleep deprivation. Hardly surprisingly this has taken a toll on her physical and mental well-being. Ms Rinds says "the mother, and sole carer, suffers from a range of chronic illnesses that are adversely affected by the current strains from caring for Mani." Quite simply, as it seems to me, Mrs Haghighat is wearing herself out in caring for Mani.
50. As to this last point, it is clear that the present arrangements for Mani's care are fragile, depending entirely as they do on Mrs Haghighat remaining capable of dealing with constant heavy work and stress. Ms Rinds referred to "the vulnerable state of Mani's care situation", and to "the vulnerable care situation", and said that she considers "the care situation is very vulnerable". Indeed she also spoke of Mrs Haghighat herself as "vulnerable".
51. It is obvious from Ms Rind's report that, if Mrs Haghighat were to cease to be able to manage Mani's care at home, the present arrangements would break down and Mani would need to be given residential care. This conclusion is reported by Ms Rinds, when she says "Were [Mani's] mother not to be able to care for him it appears he would need residential care…".
52. So far as the future is concerned, it is worth quoting from Dr Peatfield's report. He says that "the prognosis of a disabled child [such as Mani] is very difficult to predict. With good nutrition and clinical care, and antibiotics from time to time, his life expectancy could be measured in decades, but it must be recognised that his resistance to chest infections is impaired, and that it is certainly possible that he could die much sooner than this, despite optimal medical and social care. I see no reason why his mother should not look after him indefinitely". As to the last comment, however, Dr Peatfield appears not to have given separate consideration to Mrs Haghighat's health or to her capacity to continue indefinitely to provide the necessary care. Certainly there is no sign in his report that Dr Peatfield looked at Mrs Haghighat's own particular circumstances.
53. It is clear from Dr Peatfield's report that, so far as he is concerned, the Property is not ideal for the family, not only being too small in terms of bedrooms (while Mr Haghighat and Sami are living there), but also Mani's bedroom and the bathroom being smaller than ideal. The size of these rooms is relevant to ease of moving Mani about.
54. Ms Rinds' summary was that "while the overall environment in the current accommodation is not optimal, it is adequate". But in relation to this she also envisages a programme of works to the Property being urgently carried out to make it suitable for Mani's occupation with Mrs Haghighat as sole carer. Indeed, she says that "Urgent … provision of the adaptations are recommended, with short term measures to minimise the risk [being] implemented immediately".
55. As to these adaptations the most obvious which Ms Rinds contemplates is a ceiling-mounted tracked hoist system to be used to convey Mani from his bed in his bedroom, across the hall/dining room, to the shower in the bathroom. However there is no evidence as to when or whether such a system could or would be installed. Without a grant of some description Mrs Haghighat has no prospect of paying for the installation of such a system. There is no evidence of the circumstances in which and terms on which an appropriate grant might be available. I have been told that in the absence of certainty that Mani's occupation of the Property will be for at least five years following works of adaptation a grant is not available; but I have not been told whether that is the only condition to be met in order to obtain a grant, or precisely what a grant might cover. One possibly relevant consideration is that the leasehold interest in the Property is vested in the Trustee, and neither Mr Haghighat nor Mrs Haghighat now has any proprietary interest in the Property.
56. In summary, as it seems to me, the present arrangements for Mani's care at home at the Property depend not only upon Mrs Haghighat being able to continue as "sole carer", but also upon her having Mr Haghighat at the Property to assist her with her moving of Mani. But there is uncertainty as to Mr Haghighat's continuing presence there. Ms Rinds considers adaptations necessary to be made to the Property to permit a single carer of Mani to be able to move him safely. However I am not persuaded that even with these adaptations to the Property is it certain that Mrs Haghighat will be able to manage safely there by herself; all that is clear is that without them she cannot do so safely.
57. When he is fit, Mani goes four times a week to a day centre in Droop Street, W9. This is about two or three miles from the Property. When he is fit he is there from about 9.30 in the morning until about 3.30 or 4.00 in the afternoon. However at the time when Ms Rinds made her report Mani had been ill for some two months with a chest infection during which he had not been to the day centre, so that evidently there are periods when Mani will not be attending the day centre or not attending for the full period of time available. But, when he is fit, this day centre features strongly in Mani's care programme.
58. Dr Peatfield's view is that if Mani and his mother were to be moved from the Property, the relocation should be to a place within reasonable travelling distance of that centre. However, I do not understand Dr Peatfield to be insisting that as a clinical matter any relocation of Mani to a place where he is no longer within that reasonable travelling distance would necessarily be detrimental for Mani. In his report Dr Peatfield says no more than that "it would be very helpful for [Mani] to remain under the care of the same day centre in Droop Street W9 and remain within easy travelling distance…".
59. At another place in his report Dr Peatfield comments on proximity to that day centre (and also the availability of a garden or open space a condition) in a way which shows that given these primary conditions, and also given certain other criteria, a medical case could not be made for insisting that the family do stay at the Property; but, contrary to the submission of Mr Robson, Dr Peatfield does not in terms say that failing to meet one or other of those two conditions would necessarily mean that there was a medical case for insisting that the family stay at the Property.
60. The point in the previous paragraph leads to a consideration of the evidence given on behalf of Westminster City Council by a Mr David Eyres. He is a principal case worker employed by the contractor which assists the Council to discharge its housing functions and obligations. If Mrs Haghighat and Mani are to be provided with alternative accommodation it will only be by Westminster City Council.
61. It appears from what Mr Eyres says that "the Council became aware of [Mrs Haghighat's] current housing predicament when she made an application as homeless on 1 October 2001". He explains that her application was closed shortly afterwards, as she did not respond to requests by the Council for information. However in June 2005 she applied to go on the Housing Register; this was progressed during 2006 with medical assessments being carried out. By May 2006, following a joint visit from the Council's assessment team, "it was identified that the Property was unsuitable".
62. Mr Eyres' evidence is that Mrs Haghighat's application to go on the Housing Register has been assessed by the Council as having high priority by reason of medical and mobility needs. But Mr Eyres says that on the Housing Register Mrs Haghighat's application is number thirteen, and that the Council projects that the Council will have suitable accommodation at the rate of two properties a year, so that it could be "in the current time frame" some six years to eight years before a suitable offer can be made. In this context I understand the reference to suitable accommodation as being to three-bedroomed accommodation, rather than two-bedroomed accommodation (ie accommodation sufficient only to provide a bedroom for Mani and another bedroom for Mrs Haghighat and, if living with her, Mania).
63. The Trustee relies in this application on the fact that, if an order is made for Mr Haghighat and Mrs Haghighat to give possession of the Property, the Council will by reason of Part VII of the Housing Act 1996 come under a statutory obligation to rehouse the family as being unintentionally homeless. Ms Agnello submits, rightly in my view, that for this reason the position with the Council will be more promising from the perspective of the family if such an order is made: that will give Mrs Haghighat greater priority. As matters stand, the Council considers, according to Mr Eyres, that "[Mrs Haghighat] could pursue remedies under the Family Law Act 1996." Having heard Mr Eyres' oral evidence it is clear to me that the Council considers that by reason of the FLA it is open to her to remain in the Property, and that that is a much better option from the Council's perspective than the Council shouldering the significant burden of rehousing Mrs Haghighat and Mani and, it may be, the rest of the family.
64. Mr Eyres gave written and oral evidence about how the Council would perform its duty under Part VII of the Housing Act 1996. He stressed how difficult it would be for the Council to provide, in the short term, accommodation in the Westminster vicinity: he said there have not been three-bedroom level access properties suitable for wheelchair access in the last five years. He also pointed out that it could not reasonably be expected that suitable private sector property could be found which a landlord would be prepared to rent for the family, bearing in mind that there might need to be internal alterations required to cope with the family's particular requirements.
65. In his oral evidence Mr Eyres explained what would happen if the Haghighat family were now unintentionally homeless having been removed from the Property. Initially they would be placed in temporary accommodation, possibly in a hotel and probably in the Walthamstow vicinity. This would last for up to six weeks. Thereafter they would be placed into interim accommodation; this would be more settled, and would quite likely be in some location in East London away from Westminster. It would be interim in that while there the family would be waiting for their final, permanent, accommodation.
66. At the conclusion of giving his oral evidence Mr Eyres agreed to check and to report to the parties the number of properties, whether or not occupied, which the Council has in the vicinity of Westminster and which would be suitable for the needs of the Haghighat family. He had already given oral evidence that the Council does indeed have such properties; but when giving his evidence he did not know precisely how many. In the event Mr Eyres did not provide this information. What he did confirm in a supplementary witness statement was that having made enquiries of the Council's housing department they were not willing in the present case to exercise discretion regarding the finding and offering of interim accommodation out of turn to other families on the Housing Register or under the provisions of Part VII of the Housing Act.
67. As I see it, Mr Eyres' evidence on behalf of the Council has been given with an appreciation that for the Council to show in these proceedings any enthusiasm for providing suitable alternative accommodation is more likely to land the Council with the burden of finding that accommodation and less likely to result in the family remaining at the Property. I have no doubt that in general the demands on the Council for the provision of housing are great and that it will be difficult for the Council to rehouse the Haghighats in suitable alternative accommodation in anything less than a period measured in years rather than months, whether the accommodation has three bedrooms or only two. But that is not a reason to expect the Council to deal with the situation other than responsibly and conscientiously, if in the event the Haghighats are ordered to give up the Property at a future date and thus to become homeless.
68. Earlier I have referred to the evidence given concerning the Droop Street day care centre. I have not been given any evidence concerning alternative centres, although I have no doubt that there are other comparable centres in Greater London. For Mani to move to live with his mother in Walthamstow or East London would probably make it impractical for him to continue to attend the Droop Street centre, the distance and travelling time being much increased. For obvious reasons, if he is to move away from Westminster for any length of time, it should only be after arrangements have been made to find and make it possible for him to attend a suitable alternative centre. But it is also clear that it would be better for him to remain in Westminster.
69. This point is supplemented by the comment made by Ms Rinds. She says that, "Mani requires care and support from a vast multidisciplinary team from a host of different agencies which have geographical catchment areas. Establishing trust and smooth service provision as well as interagency communication and joint service provision where such complex needs and circumstances as Mani's are present can take time to develop".
70. Having said this, however, Ms Rinds also remarked that on a change in Mani's situation there would be review of the care that he is given and that this may bring some positive developments in his care. On the other hand she also noted that a change may bring strain for Mrs Haghighat in worrying about and adjusting for the change.
71. A submission made by Mr Robson was that even if the Property is not ideal, it is adequate and that that position is certain; in contrast, he submitted, the alternative of ordering possession to be given up to the Trustee necessarily involves uncertainty for Mrs Haghighat and Mani and involves significant risk that what is then provided leaves Mrs Haghighat and Mani materially worse off. On this footing, submits Mr Robson, there is a real risk that Mani's continued care at home by his mother may become impracticable, if they are forced to move from the Property, so that residential care is forced on Mani in the place of his present care at home.
72. As will be apparent from what I have said above, I am not satisfied that the Property is at present adequate for the needs of Mani and his mother while she is caring for him there. There is, as it seems to me, a real risk that even as matters stand the care arrangements for Mani will break down sooner or later, with the consequence that he is then best cared for in a residential setting and no longer at home. In other words the comparison is between one situation involving elements of uncertainty with an alternative which involves uncertainties.
73. I nevertheless accept that to compel a move from the Property will precipitate changes, and that these may increase the chances of Mani's care by his mother either coming to an end or being materially more difficult and less satisfactory than at the present time is the case at the Property.

Conclusion

74. At the end of the day the choice to be made on this Application is extremely uncomfortable.
75. On the one hand the Property belongs in effect to Mr Haghighat's creditors as a result of the judgment obtained against him and his bankruptcy, and ought to be realised in order to pay as much as possible of what is due. Even then there will be a significant shortfall in the bankruptcy. In substance the creditors are Mr Chamberlain and Ms MacLennan, both in their position as secured creditors and in their position as unsecured creditors who, in all likelihood, will have had to fund or indemnify the Trustee in respect of all or the bulk of the bankruptcy costs and expenses of £206,000 odd. It is now more than six years since the Trustee was appointed, during which time the Haghighat's have continued to occupy the Property. If the Application is simply dismissed the creditors will be deprived of any expectation of receiving anything from Mr Haghighat or his estate in the foreseeable future.
76. This is because it cannot be predicted that the circumstances of Mani and his mother will change within any definite time; rather the expectation, indeed the premise on which the case has been argued before me by the Trustee, Mrs Haghighat and Mr Haghighat, is that the situation will remain unchanged for a period which may be lengthy.
77. However, unless the Trustee disclaims the Property, the Trustee will in the meanwhile remain responsible for the ground rent and service charge. There is no evidence that even in respect of these liabilities will the Trustee or the secured creditors be indemnified by either Mr Haghighat or Mrs Haghighat; and the evidence of Mr Eyres is that according to Westminster City Council's Housing Benefit Department "Housing Benefit" for Mrs Haghighat "could not cover any service charge no matter how small".
78. In short the creditors' only hope of receiving anything will be if they are prepared to remain liable, directly or indirectly, for the ground rent and service charges, waiting until such time, quite possibly in years to come, when they are able to discover that there has been a material change, for example in the health of Mani or his mother, such that the Property is no longer needed as a place where Mrs Haghighat can live with Mani and care for him.
79. To set against the interest of the creditors in having possession of the Property are most materially the circumstances of Mrs Haghighat and her three children, in particular Mani. The Property is the family home, and there Mani is at present able to live without having to go into residential care. I have set out earlier in this Judgment factors which make it desirable that Mani and his mother should be able to continue living at the Property, ideally with suitable modifications being carried out to enable Mani to be lifted and moved about safely.
80. The difficulty in balancing the competing interests in the present case arises from the fact that they are of an essentially different nature. The possible alternatives, contended for before me, are on the one hand (a) simply to refuse the Application insofar as the Trustee seeks possession of the Property, and on the other (b) to make an order for possession in a period of, say, three or six months. The difficulty with both of these alternatives is that in effect each of the two sides is contending that the interests identified by that side as pointing to that side's favoured order completely displace the inherently different interests on the other side.
81. I believe that the correct course is to make an order somewhere between these two extremes. The former order to my mind attaches insufficient weight to the interests of Mr Haghighat's creditors while leaving the position uncertain: it is not clear what would then become of the leasehold interest in the Property; but, in the absence of disclaimer, it would be open to the creditors to renew the Application as and when they judged they had a prospect of successfully obtaining a possession order. The latter order, for possession to be given within a matter of months, would not give sufficient weight to the matters, referred to above (namely the interests of Mani and his mother), which make the circumstances of the present case exceptional.
82. After careful consideration of the matters set out in this Judgment, my clear conclusion is that I should make an order for possession of the Property to be given to the Trustee; but, nevertheless, the order for possession should be deferred for a substantial period or until, if sooner, three months after Mani has ceased permanently to reside at the Property. That substantial period, which I think should be three years, I have decided on with a view to allowing (a) the local authority to make provision for Mrs Haghighat and Mani to be rehoused (together, if appropriate but not necessarily, with Mr Haghighat and the other children) in accommodation which will be suitable to their needs, and (b) an orderly change to be effected (so far as change is made necessary by the move to new accommodation) in the care arrangements for Mani. As to this I did not understand Mr Eyres' evidence to be that the Council neither could nor would ever offer suitable alternative accommodation; rather, it was that in the absence of an order for possession an offer of suitable alternative accommodation could be expected within six to eight years. While recognising that the Council may have difficulty in accelerating any offer in the short term, I cannot think it unrealistic to expect the Council to make a suitable offer within three years in the face of an order for possession within that time.
83. The order I have decided on is a compromise between the two other possible alternatives. It is far from ideal; but in the circumstances I consider that it is the best possible balance between the competing interests of those concerned in the present case, and that it is just and reasonable having regard to the matters which IA 336(4) and 337(5) direct to be taken into account.
84. I shall hear argument as to the precise form which the order should take and as to the costs of this Application.