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Outright or suspended - The correct approach in discretionary residential possession cases

On 29 November 2012 the Court of Appeal handed down judgment in Birmingham City Council v Mr Neil Ashton [2012] EWCA Civ 1557.  Though the facts of the case were similar to many anti-social behaviour cases heard around the country it did throw up three particularly interesting areas of confirmation and clarification:

  1. The statutory requirements found at s85A Housing Act 1985/s9A Housing Act 1988 and setting down what, amongst other matters, the court must consider in those residential possession claims relying at least in part on the nuisance and annoyance ground – i.e. ground 2 of Schedule 2 of the Housing Act 1985 for secure tenancies and ground 14 of Schedule 2 to the Housing Act 1988 for assured tenancies – were relevant both to the stage when the court was considering whether it was reasonable to make a possession order and when considering whether such an order should be suspended/postponed or outright.
  2. It was wrong to categorise the “test” for suspending an order was whether the prospects for improved future behaviour were merely “better than fanciful” and rather the approach suggested by the local authority in this appeal (i.e. it was a question for the future and there must be a sound basis to hope that the anti-social behaviour would cease) was to be preferred.
  3. It is for the defendant to submit cogent evidence that such behaviour as has led to the making of any possession order will not be repeated so as to support their argument that such an order should be suspended (or postponed) on terms.

In Ashton the local authority appealed against a decision of a county court judge to make a possession order against a secure tenant who was found to have committed serious acts of nuisance and annoyance, but to suspend such an order on terms that Mr Ashton comply with the terms of his tenancy agreement and obey an injunction order made as to future behaviour.  The local authority landlord in fact elected at trial to simply rely on 4 incidents which had led to criminal convictions and were not therefore disputed by Mr Ashton.

In making the decision to suspend the possession order the trial judge accepted Mr Ashton’s statement that he no longer harboured ill feelings towards the primary victim of his criminal activities and had (on his evidence) benefited from the support of his family, an alcohol support group, a probation officer and psychiatric intervention.  There was extremely limited evidence of this however from the sources cited.

The local authority was particularly aggrieved that the trial judge had not, on its case, paid sufficient regard to the seriousness of the convictions, the continuing effect of Mr Ashton’s behaviour on his neighbour victim(s) – classic s85A points:

(1) This section applies if the court is considering under section 84(2)(a) whether it is reasonable to make an order for possession on ground 2 set out in Part 1 of Schedule 2 (conduct of tenant or other person).
(2) The court must consider, in particular—
(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;
(b) any continuing effect the nuisance or annoyance is likely to have on such persons;
(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

-and had little independent evidence before him to support his confidence as to future behaviour.

As to the proper approach to the “second stage” of judicial consideration – i.e. if a possession order were to be made whether it should be outright or suspended/postponed – Lord Justice Treacy said,in delivering the main judgment of the Court and allowing the appeal, this:

“35…although the court might not be mandated to take account of the factors at Section 85A(2) in considering whether to suspend an order for possession, they were clearly highly relevant factors to the exercise of the judgment to be made in relation to the power to suspend under Section 85(2).”

The Court also rejected that notion that Sheffield City Council v Shaw [2007] EWCA Civ 42; [2007] HLR 25 laid down a test in respect of the question of whether a possession order should be suspended which could be said to be that the chance of reform in the defendant’s behaviour was merely “better than fanciful”.

Rather Lord Justice Treacy rejected the trial judge’s approach which relied to a significant extent on a doctor’s assessment of a “low” risk of further incidents (though in the context that Mr Ashtion did not revert to alcohol or cannabis usage), the lack of up-to-date evidence as to the “irremediable effects” upon the victim, and lack of evidence as to any on-going animosity towards her by Mr Ashton and held that:

"42. Moreover, I consider that the tests that the judge effectively posed to himself inparagraphs 24 and 28 of his judgment approach the matter from the wrong direction. The onus should be on the party who seeks to have the benefit of suspension of a possession order, (which by definition the judge has already found it was reasonable in the circumstances to make), to provide cogent evidence to show that what can generally be characterised as anti-social behaviour will not recur, or will be unlikelyto do so."

Looked at from that perspective it was stark that:

“40. There was no evidence from Dr Van Woerkom that the Respondent had been cured orsuccessfully treated for his problems. There was no assessment from Dr Van Woerkom of the likelihood of the Respondent remaining abstinent, and it had to be borne in mind that his current stable state existed during the period when he had returned to the family home rather than in the situation to be considered if he returned to live on his own in the flat at which the incidents had occurred.

41. The judge does not appear to have made any assessment of this sort for himself. It seems to me that there existed at the time of the hearing a significant risk for the future which had not been properly addressed, and that the judge had over concentrated on the Respondent’s present condition. He did not adequately address the fact that, if there were repetition, it would represent a fifth incident for the Respondent’s neighbours who had already suffered four in six years.”

The matter was referred back to the county court to consider the question of suspension afresh but this case serves as a useful wider reminder to those acting for landlords and tenants alike that in anti-social behaviour cases (in particular) where a possession order is to be made it is for the tenant to demonstrate that the behaviour which has led to the order being made is unlikely to recur.  In many instances where alcohol, drugs or mental health plays a part in the behaviour complained of this means sound, cogent and sustainable evidence from those assisting the defendant in dealing with these issues is crucial.

The approach unsuccessfully adopted by the tenant in a recent possession case I acted in on behalf of the landlord, whereby there was no evidence as to the her alleged attempts to control her drinking (the catalyst for many of the anti-social behaviour incidents complained of by her neighbours) save for her own unlikely and unsupported assertions of sobriety, is equally unlikely to find favour with the trial judge and do not assist them in making the crucial judgment with regard to future behaviour.