Case law: Understanding a judge’s discretion in suspending an order for possession

A judgment from the England and Wales Court of Appeal will be relevant to any social landlord wishing to recover possession of a dwelling due to a tenant’s alleged breach of tenancy conditions.  This judgment sets out guidance on:

• what amounts to cogent evidence for the hope that any previous conduct will cease:
• the impact of the tenant’s credibility: and
• the requirement to provide reasons justifying the granting of a suspended possession order (SPO).

In the case of City West Housing Trust V Massey. Manchester and District Housing Association v Roberts [2016] EWCA Civ 704, the England & Wales Court of Appeal considered joined cases where social landlords attempted to recover possession of dwellings which had been used for the cultivation of cannabis.  The Court of Appeal had to consider whether it was appropriate to grant a suspended possession order in these cases, given that the tenants’ evidence had been wholly or partially disbelieved and that the SPOs included conditions placing a responsibility to carry out inspections on the landlords.

Path to the Court of Appeal

In each case, the property had been used by someone known to the tenant to cultivate cannabis.  One tenant denied any knowledge of the offence, while the other claimed he was forced to make his property available by a criminal gang.  Evidence submitted by each tenant was disbelieved in whole, or in part, but a SPO was granted in each case based on the hope that the tenant would refrain from similar behaviour in the future.  The landlords appealed these decisions. 

In the Massey case, City West Housing Trust appealed the SPO, but the High Court refused the appeal, with the judge concluding that the making of a SPO was a non-reviewable exercise of discretion and that, although it was charitable towards the tenant, it was a decision the judge was entitled to come to.

Manchester & District Housing Association successfully appealed the granting of a SPO, with the judge granting an outright possession order. The Court ruled that a judge making an order could only rely on the tenant’s behaviour and not on the fact that the landlord would be carrying out inspections, stating “reasons which depend upon imposing a positive obligation upon a landlord going well beyond those ordinarily present are not an appropriate factor upon which to found a sound basis for hope”. The tenant made a further appeal and the cases were consolidated in front of the England & Wales Court of Appeal.

Matters considered by the court

The Court of Appeal in considering the appeals looked at two questions, firstly, whether the orders of the County Court were wrong and secondly the question of any guidance for the future.

On the first question, in both cases the Court of Appeal held that the District Judge had been persuaded that the tenants would comply with the terms of their tenancy if conditions, tailored to their circumstances, were imposed. The assessment of a tenant in these circumstances is in all cases a question for the trial judge. There were a number of factors common to each case, which had influenced the judge’s assessment of the tenants’ assurances for the future, namely:

1. the tenant was not found to be primarily responsible for the cannabis cultivation. 
2. there was no evidence of previous offences or breaches by the tenant of the terms of the tenancy agreement. 
3. each tenant expressed a willingness to comply with the terms of the tenancy in the future.

The landlords argued that the conditions of the SPOs placed additional requirements to inspect properties on them and that this had been done without fully considering the landlords’ resources.  The Court of Appeal accepted that a judge should not expect a social landlord to do more than is reasonable, but felt that the prospect of inspections or the perception of a risk of inspection did not place a greater burden on social landlords than that already there by virtue of their inherent responsibility to monitor and maintain housing stock.

In answering the second question, the Court issued limited guidance for the future, but stated that: “Anyone applying this guidance must bear in mind that the grant of an SPO is case-sensitive. The proper resolution of every case must turn on its own facts, as well as the law, and so guidance must be applied appropriately to the circumstances of a particular case.”

What factors should influence the judge’s decision?

The landlords had argued that the judge should factor in the tenant’s dishonesty when exercising his or her discretion and had suggested that the tenant should have to satisfy a checklist showing

• co-operation with housing authorities and prosecuting authorities
• honesty and full disclosure of previous inappropriate behaviour
• genuine remorse
• early acceptance of culpability
• the duration of any illegal activity.

The Court of Appeal declined to provide a checklist of factors, which should be taken into account, dismissing this course of action as “not appropriate” and cautioning that this approach “gives rise to an expectation that other matters are not relevant or should have less weight attached to them”.  The Court did, however, issue guidance on the factors which should contribute to the suspension of an order. The judgment, incorporating this guidance, is available from Bailii, but its key elements are that

• There must be cogent evidence that there is a sound basis for hope that the previous conduct will cease. To be cogent the evidence must be more than simply credible: it must be persuasive
• The focus must be on the future, rather than the past
• There is no principle that the future behaviour must stem solely from the tenant.
• In framing conditions, the judge should have regard to all the circumstances, including the resources of the social landlord
• Dishonest evidence does not prevent the court from finding cogent grounds
• The decision to grant or not to grant an SPO involves two stages,

1. findings of fact and
2. a decision on whether or not to exercise discretion

• It is not appropriate to provide a check-list of matters which a judge should take in to account in deciding whether or not to suspend a possession order
• A court making a suspended possession order should give adequate reasons as to why it has decided to exercise its discretion

Learning points for Northern Ireland

These cases concerned the provisions of the UK legislation, Housing Act 1988

The equivalent provisions in Northern Ireland are contained in the Housing (Northern Ireland) Order 1983 which sets out the grounds under which a court may grant an order for possession to a social landlord and sets out the court’s ability to stay or suspend the order or postpone the date of possession.

A UK Court of Appeal judgment is “persuasive” in Northern Ireland courts. While it is not binding, it will generally be followed by the courts in Northern Ireland unless the Northern Ireland Court of Appeal had made a contrary finding.

The crucial learning point is the court’s emphasis that the granting of an SPO is case-sensitive. The proper resolution of every case must turn on its own facts, as well as the law.  Guidance must be applied appropriately to any case and should not be adopted into a restrictive checklist, as this could bring in a “tick-box “approach in place of a true exercise of judgment