Tenant’s son’s anti-social behaviour — Existence of ASBO — Possession order — Whether reasonable to suspend possession order — Recorder seeking court’s direction as to proportionality issue — Appeal allowed
The appellant local authority were the landlords of the property where the respondent lived with her three children. The tenancy agreement contained prohibitions on causing a nuisance or harassing other persons, and made the respondent responsible for the behaviour of all persons living in or visiting the property. One of her children, J, engaged in bullying behaviour, including assault, threats and vandalism, towards their next-door neighbour and her mentally disabled sons. That behaviour continued despite warnings given by the appellants to the respondent, the issuing of an injunction against her, and the making of an anti-social behaviour order (ASBO) against J. J was subsequently arrested, convicted of criminal damage and placed on an intensive supervision programme, which failed to control his behaviour.
The appellants sought possession against the respondent on grounds 1 and 2 in Schedule 2 to the Housing Act 1985.
At the hearing of the appellant’s claim, the recorder considered that it was reasonable to make a possession order, within section 84 of the 1985 Act, but that the order should be suspended for 18 months pursuant to section 85. He found that it would be unfair to hold the respondent solely and personally responsible for J’s behaviour, and that although the needs of the neighbours had to be taken into account, it would not be proportionate to order immediate possession and to accept that J would make no improvement.
The recorder gave the appellants leave to appeal on the basis that guidance was needed from the Court of Appeal with regard to the issue of proportionality. The appellants appealed against the suspension of the order.
Held: The appeal was allowed.
The discretion to suspend a possession order was unfettered, save that it had to be judicially exercised, bearing in mind all the circumstances of the case. If the conduct of the tenant or even a member of the household were serious and persistent enough to justify the making of an ASBO, that would be strong evidence that the tenant had forfeited entitlement to retain possession: West Kent Housing Association Ltd v Davies (1999) 31 HLR 415; [1998] EGCS 103, Bryant v Portsmouth City Council (2000) 32 HLR 906; [2000] PLSCS 122 and Canterbury City Council v Lowe (2001) 33 HLR 53 considered.
Having found that the making of the possession order was reasonable, the question of whether or not to suspend that order depended on the probability of the offending behaviour being repeated. In order to suspend, there had to be a sound basis for hope that the anti-social behaviour would cease. Genuine remorse on the part of the offender at the time of making the order, compared with previous unheeded warnings, would provide a basis for that assessment.
The court had to weigh up the competing interests of the parties in the matter, that is, the landlord, the tenant, the neighbours, and the public at large, taking into account the scarcity of public housing stock, and bearing in mind the provisions of Article 8 of the European Convention on Human Rights.
In the instant case, the recorder was in error to consider that J would reform his anti-social behaviour. Based on all the evidence, such a hope was not realistic. Although J’s mother was not herself guilty of the offending behaviour, she had failed to control J or to exhibit remorse or to understand her parental responsibility. The fact that she and the other members of the family would suffer by reason of the possession order did not outweigh the harm caused to the victimised neighbour so as to justify the suspension of the order.
Zoë Thompson (instructed by the legal department of Manchester City Council) appeared for the appellants; John Hobson (instructed by Shelter Housing Aid Centre, of Manchester) appeared for the respondent.
Sally Dobson, barrister
