Secure tenancy – Possession order – Suspension – Section 85(2) and 85A of Landlord Housing Act 1985 – Possession order made in favour of appellant landlords on grounds of anti-social behaviour of respondent tenant – Judge suspending possession order on terms – Whether judge wrongly focusing on current situation and giving inadequate weight to respondent’s past misconduct and risk of future repeat – Appeal allowed
The appellant local authority let a flat to the respondent on a secure tenancy. An incident that occurred at the property in June 2010 resulted in the respondent being convicted of offences of affray and possession of an offensive weapon and subjected to a community order that prevented him from returning to the property for a period of three years; he was also put under supervision for three years and required to live at an approved address and undergo mental health treatment.
In January 2011, the appellants served a notice of possession on the respondent, on the grounds that he had breached the obligations in his tenancy and caused an annoyance or nuisance, within grounds (1) and (2) in Schedule 2 to the Housing Act 1985. The appellants issued possession proceedings in January 2011. In addition to the June 2010 incident, they relied on three earlier incidents of anti-social behaviour between 2004 and 2007, directed at the same neighbour, that had also resulted in convictions.
A possession order was granted in the county court but was suspended, pursuant to section 85(2) of the 1985 Act, on terms that the respondent complied with his tenancy agreement and obeyed an injunction order. In making the suspension, the judge took into account evidence suggesting that the respondent was adhering to his medication and that the risk of further incidents was low, assuming the respondent continued to abstain from his previous alcohol and cannabis abuse, and the absence of evidence as to any long-term irremediable effects upon the neighbour or any continuing animosity.
The appellants appealed. They contended that the judge had given insufficient consideration to the factors set out in section 85A, namely the past, present and future effect of the anti-social behaviour, since he had given inadequate weight to the cumulative effect of the four past incidents and had focused too much on the respondent’s current condition, without looking at the situation from the point of view of those affected or at the effects on them if the respondent’s past misconduct were to be repeated in future.
Held: The appeal was allowed.
The judge’s analysis of the situation was flawed. Although there were a number of factors telling in favour of the respondent, including his efforts to get a grip on his life, his compliance with his medication and his currently stable condition, there was still a significant risk of future harmful events occurring. The medical evidence as to the low risk of recurrence was predicated on the respondent’s continuing abstinence from alcohol and cannabis. The judge had failed to give any weight to the history of past lapses by the respondent; it was apparent that if the respondent did relapse into abuse of drink or drugs, then further highly unpleasant incidents of the sort that had occurred in the past were very likely to recur. There was no evidence that the respondent had been cured or successfully treated for his problems. Consequently, there existed, at the time of the hearing, a significant risk for the future that had not been properly addressed. The judge had concentrated too much on the respondent’s present stable condition without adequately addressing the consideration that, if there were a repetition of past behaviour, it would represent a fifth incident for the respondent’s neighbours who had already suffered four incidents in six years.
The onus was on the party who sought to have the benefit of suspension of a possession order to provide cogent evidence to show that what could generally be characterised as anti-social behaviour would not recur, or was unlikely to do so. The judge had approached the matter from the wrong direction by asking whether there was clear evidence militating against the grant of a suspension. His decision would therefore be overturned and the matter remitted to the county court to be tried by a fresh judge.
Jonathan Manning and Rebecca Chan (instructed by the legal department of Birmingham City Council) appeared for the appellants; Michael Singleton (instructed by Community Law Partnership, of Birmingham) appeared for the respondent.
Sally Dobson, barrister
