Assured tenancy — Order for possession — Nuisance — Whether appropriate to make order where tenant unable to control behaviour of nuisance-maker and where ASBO in force — Whether terms of suspended order should require application to court on notice before obtaining warrant for possession — Part II of Schedule 2 to Housing Act 1988 — Appeal allowed in part
The appellant was an assured tenant of the respondent. She suffered from a mental disability and could not read or write beyond the level of a nine-year-old. The respondent brought a claim against the appellant for possession on grounds 12, 13 and 14 in Part II of Schedule 2 to the Housing Act 1988, citing the behaviour of the appellant’s teenage son, who had damaged the house and caused nuisance to neighbours in the form of abuse, intimidation and damage to property. He had a string of convictions for theft and criminal damage, and had been detained in a young offender institution. Since his release on licence, he had been subjected to an antisocial behaviour order (ASBO), electronically tagged and placed under curfew. These measures meant that by the time of the respondent’s application, no incidents had occurred for several months. An expert’s report indicated, however, that the appellant was immature and vulnerable, lacked assertiveness skills and was unable to control the actions of her son.
The judge found that all three grounds for possession were made out, that he was not precluded from making an order by section 22(3)(c) of the Disability Discrimination Act 1995 and that it was reasonable to make an order, suspended for so long as no further nuisance was caused.
On appeal, the appellant contended that the order should not have been made because: (i) she could not control her son’s behaviour; (ii) that behaviour was effectively controlled, and the neighbours sufficiently protected, by the ASBO and other restraints; and (iii) the judge had no jurisdiction to make a suspended order that entitled the respondent to apply for a warrant without first applying to the court on notice to the appellant.
Held: The appeal was allowed in part.
(1) It was clear from sections 7 and 9 of the 1988 Act that, as a matter of statutory jurisdiction, the court could make an outright or suspended possession order against a tenant on the ground that a person living with him or her had been guilty of nuisance: Portsmouth City Council v Bryant (2000) 32 HLR 906 applied. There was no express restriction upon making such an order simply because the tenant could not control the behaviour of the other person, and there was no reason, in principle, why an order should not be made in such circumstances. Where a landlord was seeking a possession order, outright or suspended, the fact that the tenant could not control the nuisance-maker would often assist the landlord. In such a situation, a suspended order might be appropriate, and the fact that the order could be suspended could be a relevant factor in deciding whether to make an order for possession at all: Newcastle upon Tyne City Council v Morrison (2000) 32 HLR 891 applied.
(2) There was no intrinsic reason why an ASBO against the person responsible for a nuisance should prevent the making of an order for possession, whether outright or suspended, based on ground 14. The two orders were conceptually quite different, and a landlord that had the benefit of a covenant against nuisance, and a statutory right to possession under ground 14, should not be forced to rely upon enforcing an ASBO rather than pursuing its own rights. A court should not refrain from making a possession order simply because the person responsible for the nuisance was subject to an ASBO that was, in effect, directed to preventing the same sorts of acts. An ASBO could, however, be a relevant matter when deciding whether to make or suspend an order, and might justify suspension where the court would otherwise have made an outright order: London & Quadrant Housing Trust v Root [2005] EWCA Civ 43; [2005] HLR 439 considered.
(3) The court had jurisdiction in principle to make a suspended order entitling the respondent to apply for a warrant without first applying on notice, if the terms of the suspension were infringed: Southwark London Borough Council v St Brice [2001] EWCA Civ 1138; [2002] 1 WLR 1537 considered. A suspended order should not normally include a term requiring an application on notice by the landlord, although, in exceptional cases, such a term might be justified. In the instant case, such a term should be included, given the appellant’s disability and the existence of the ASBO, and the judge’s order would be amended accordingly.
Per curiam: It would be wrong in principle to rule out an outright order for possession against a person who was powerless to rectify the situation, since the 1988 Act clearly contemplated that such an order would be appropriate if the facts of the particular case rendered it reasonable: obiter observations of Sedley LJ in Bryant disapproved.
Jan Luba QC and Robert Askey (instructed by Merseyside Welfare Rights Resource Centre, of Liverpool) appeared for the appellant; Edward Bartley Jones QC and Paul Burns (instructed by Anthony Collins, of Birmingham) appeared for the respondent.
Sally Dobson, barrister
