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Housing Law - Hear No Evi(dence)... Make No Order?

By : Andrew Lane

For many years now advocates have been used to dealing with private rented possession cases where one of the grounds relied upon is the mandatory ground 8 (Schedule 2, Part 1 of the Housing Act 1988 - 2 months/8 weeks rent arrears outstanding at the date of service of the notice seeking possession and at the date of hearing) and the defendant is seeking an adjournment because there is an outstanding housing benefit claim which could reduce any arrears below the critical 2 months/8 weeks figure.

 

Whilst s.9(1) of the Housing Act 1988 enables a court to adjourn a possession claim "for such period or periods as it thinks fit" this is subject to s.9(6) which specifically states that s.9 powers do not apply "if the court is satisfied that the landlord is entitled to possession" on one of the mandatory grounds.   Accordingly, this would appear to finally prevent a tenant arguing for an adjournment, however "just" such an application may otherwise be.

In the recent judgment in the case of The Marr-Munning Trust v Frederick Turner though HHJ Oppenheimer, sitting at Brentford County Court, dealt with this very issue following Mr.Turner's appeal against a district judge's decision that ground 8 was satisfied and therefore she had no alternative but to order possession.  This was despite the fact that a significant housing benefit payment was due to be paid to Mr.Turner.  It was in fact paid the following day and reduced the arrears to below 8 weeks figure.

The Judge allowed Mr.Turner's appeal and found that the court retained an inherent power to adjourn despite the statutory exclusion of such a discretion.  In support of such a proposition he cited Birmingham Citizens Permanent Building Society v Caunt [1962] 1 Ch.883 and R v A Circuit Judge, ex parte Wathen and others (1976) 33 P & CR 423.   He also used in support of his general position the recent Court of Appeal authority of Coltrane v Day [2003] EWCA Civ.342 where the effect of a cheque presentation prior to a ground 8 hearing was considered.

Miss Recorder Adrienne Page QC in the case of Razack v Ozman (Current Law, September 2001 para 426) had previously decided that there was no inherent power to adjourn in ground 8 cases though HHJ Oppenheimer's view of this decision was:

"…if the Learned Recorder was holding that there was no inherent power to adjourn, even for a short time for the housing benefit to be paid such as would reduce the arrears below two months and provided there were good grounds for believing that the short adjournment would achieve that object, then I disagree with that decision."

Interestingly, HHJ Oppenheimer decried the practice of many courts, faced with the possible "inequity" of having to order possession where there was likely to be a housing benefit payment taking the rent arrears figure below the ground 8 level, of adjourning the hearing before hearing evidence:

"It is of course strongly arguable, however, that the use of that device would disenable a Court from being satisfied; it is, however, a highly debatable question as to whether the use of such a device is legitimate."

Is that therefore the end of the matter?  The answer of course is "no".   Aside from the obvious point that the Turner case is not binding authority, and there is the county court decision in Ozman which decides to the contrary, there are a number of issues and questions which remain unclear and undecided despite HHJ Oppenheimer's considered judgment:

  • to what degree must there be evidence of a forthcoming housing benefit payment and its total?  How imminent must the payment be?
  • Do courts now have to at least hear the evidence of the landlord and then consider any adjournment request?
  • The Coltrane case does not deal directly with the issue of inherent power to adjourn as it concerns the treatment of a cheque received prior to the possession hearing and the retrospective assumption of a reduction in the rent arrears figure if the cheque is honoured on first presentation;
  • In both Caunt (ability to clear the mortgage) and Wathen (time to give the lessee to vacate in a forfeiture action) the court were not satisfied of all the matters it had to decide whereas in the Turner case the landlord had agreed to the maximum 6 weeks possession date and were not seeking costs;
  • Further, the authorities relied on by the judge in the Turner case did not have to have regard to legislation which specifically restricted adjournment powers to non-mandatory grounds.