Assured tenancy – Possession claim by respondent landlord on ground of appellant tenant’s conviction for indictable offences – Ground 14(b)(ii) in Schedule 2 to Housing Act 1988 – Appellant not tenant of premises in question at time offences committed – Possession order granted – Whether ground 14(b)(ii) applying where conviction relating to offences committed before commencement of tenancy – Appeal dismissed
The appellant was an assured tenant of the respondent housing association. In 2004, he was arrested on suspicion of offences under the Protection of Children Act 1978, but was not charged until 2006. In the meantime, he transferred his tenancy to another nearby property of the respondent, no 5. He was subsequently convicted of offences relating to the downloading and possession of indecent photographs of children, committed while he had been living at the previous property.
When the respondent learnt of the convictions, it served notice on the appellant seeking possession of no 5 and brought possession proceedings under section 7 of the Housing Act 1988. It relied upon ground 14(b)(ii) in Schedule 2 to the 1988 Act, namely that “the tenant… has been convicted of an indictable offence committed in, or in the locality of, the dwelling-house”. The judge found that ground 14(b)(ii) was made out and that it was also reasonable in the circumstances to make a possession order.
On appeal, it was not disputed that the appellant had been convicted of indictable offences while a tenant of no 5, and that those offences had been committed in the locality of that dwelling. However, the appellant contended that ground 14(b)(ii) was not made out since he had not been a tenant of no 5 at the time the offences were committed. He contended that ground 14(b)(ii) applied only to offences committed by the tenant during the period of his tenancy of the dwelling in question. He submitted that such a construction was supported by a comparison with ground 14(b)(i) (conviction for using the premises for immoral or illegal purposes), which, he submitted, required the tenant to be in occupation of the premises at the time the conduct in question occurred.
Held: The appeal was dismissed.
Even if ground 14(b)(i) was limited to convictions arising out of the use of the premises during the tenancy agreement, there was no reason why ground 14(b)(ii) should be construed in the same way. The tenant could properly be held responsible for the way in which he had behaved in the locality both before and after he became a tenant. The mischief at which ground 14(b)(ii) was aimed was the presence within the locality of persons who had demonstrated by their previous behaviour that they were likely to annoy, intimidate or otherwise cause a serious nuisance to other residents and thereby adversely affect their quality of life. In that respect, a person continued to be a threat even if the offences of which he was convicted were committed before, rather than after, he became a tenant. It was relevant that ground 14(b)(ii) was merely a precondition to the exercise of the court’s power to order possession; the court also had to be satisfied that it was reasonable to make the order. In making that decision, the effect of the tenant’s behaviour on others in the locality, including any likely continuing effects and the likely effect of any repetition, had to be taken into account. Accordingly, there was no reason to limit ground 14(b)(ii) in the way contended for by the appellant.
Richard Egleton (instructed by Gales Solicitors, of Bournemouth) appeared for the appellant; Philip Glen (instructed by Dutton Gregory, of Bournemouth) appeared for the respondent.
Sally Dobson, barrister
