PP 2001/33

Q  A number of tenants in a council-owned block of flats are joining forces to complain about various disrepairs. However, some of the flats are the subject of suspended orders for possession requiring the occupants to pay off arrears over a specified period. Does such an occupier have the same right to complain as the other tenants? A  Yes, but only for so long as he abides by the terms of the order. Once a breach has occurred, his status is reduced to that of a “tolerated trespasser”, and he will carry that badge unless and until he successfully applies, under section 85 of the Housing Act 1985, for an order postponing the possession date. The mere fact that the council have left the order unexecuted will not (unlike an order under section 85) bring about a revival of the earlier secure tenancy: see Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594; [2001] 19 EG 140 (CS). For what amounts to “execution” of the order, see Dunn and another v Bradford Metropolitan District Council [2002] 32 EG 88 (CS). Q  A tolerated trespasser (as described above) applies for an order postponing possession. The council object. Are the council limited to the grounds upon which the original order was based? A  No. The discretion conferred by section 85 is not so circumscribed: see Sheffield City Council v Hopkins [2001] EWCA Civ 1023; [2001] 26 EG 163 (CS), admitting allegations of nuisance in a case which up to then had been concerned with non-payment of rent. However, to ensure that the additional ground(s) carry due weight the council would well advised to follow certain guidelines to be found in the full report. Related items: PP 2000/42 Swindon Borough Council v Aston [2002] EWCA Civ 1850; [2003] 02 EG 104 (CS)