Appellant in arrears of rent – Respondents obtaining possession order – Order suspended on terms that appellant pay weekly amount – Appellant failing to comply with terms of order – Respondents seeking warrant for possession – Appellant applying to set aside possession order made in her absence – Application refused – Appellant appealing – Whether decision unlawful – Appeal dismissed
The appellant was a secure tenant of 16 Beckham House, London, which was owned by the respondent council. In 1990 the county court made a possession order in the appellant’s absence. The order was subsequently suspended on terms that she paid her current rent and £1.85 per week towards the rent arrears. The appellant failed to comply with these terms.
In August 1998 the respondents applied for leave to issue a warrant for possession. The appellant applied to set aside the possession order on the basis that it was obtained in her absence. Both applications came before the court on 8 January 1999. The judge considered that the order had been properly made and that the making of the suspended order was inevitable. The court dismissed the appellant’s application.
The appellant sought to challenge the decision of 8 January 1999 on three grounds: first, that there was no merit in allowing an order that was unenforceable, or would only be enforced in exceptional circumstances, to continue; second, that the original order had been made in circumstances in which it was impossible for the judge to have been satisfied that it was reasonable to make a possession order; and third, that the length of time over which the conditions set by the suspended order would last, without the appellant ever being able to discharge the order, was too long.
Held: The appeal was dismissed.
There was no reason why the appellant, who chose not to appear at the original hearing, should be permitted, so many years after the making of the possession order, to challenge the appropriateness of that order. Moreover, since the order was made in respect of a secure tenancy, section 84(2) of the Housing Act 1985 required the court to consider whether any statutory grounds for possession existed and whether it was reasonable to make the order. It was plain that the court did consider those matters and concluded it was the obvious order: Shocked v Goldschmidt [1998] 1 All ER 372 applied. Furthermore, section 85(2) of the 1985 Act gave the court a wide discretion and expressly allowed the court to suspend the execution of an order, for such a period as the court thought fit. The court practice was to be merciful to tenants and give them a realistic opportunity to pay arrears. The question of whether it was appropriate for the appellant, who owed substantial arrears, to have the threat of losing her home hanging over her for years was a political question and did not go to the correctness of making the order. None of the appellant’s grounds showed an error of judgment in refusing to set aside the possession order.
Charles King (instructed by Flack & Co) appeared for the appellant; Christopher Baker (instructed by the solicitor to Lambeth London Borough Council) appeared for the respondents.
Sarah Addenbrooke, barrister
