Council tenant – Conviction for cannabis cultivation at the property – Appellant council seeking possession on ground that tenant convicted of using property for immoral or illegal purposes – Ground 14(b)(i) Schedule 2 to Housing Act 1988 – Tenant having previous convictions for similar offences – District judge suspending possession order – Whether judge erring in exercise of discretion – Whether appropriate to grant outright possession order – Appeal allowed
The respondent was a tenant of a flat that he had occupied under a tenancy from the appellant council since 1993. The tenancy included the usual terms requiring the tenant to refrain from committing criminal offences or causing nuisance. In 2005, the respondent was convicted for cultivating cannabis at the property. He had previous convictions for similar offences dating from 1998 and 1999 and received a suspended sentence of 9 months with a supervision order for the latest offence.
In 2006, the appellants were apprised of the latest conviction and sought possession of the property on various grounds, including ground 14(b)(i) Schedule 2 to the Housing Act 1988, namely that the tenant had been convicted of using the dwelling-house for immoral or illegal purposes. The respondent accepted that the ground was made out, but contended that he had caused no nuisance to other residents and that he had “turned over a new leaf”, pointing to the absence of further offences since the 2005 conviction.
On the basis of written submissions, the district judge held that it was reasonable to make a possession order, but that it should be suspended for two years provided that the respondent complied with its terms. In reaching that conclusion, the judge placed weight on the absence of further offences and the respondent’s submissions as to his reformed character. The appellants appealed, contending that, in a case involving criminal offences, a possession order should be suspended only in exceptional circumstances.
Held: The appeal was allowed.
The commission of a criminal offence represented a serious breach, such that the court should suspend the possession order only if there was cogent evidence demonstrating a sound basis for the hope that the previous conduct would cease: Bristol City Council v Mousah (1998) 30 HLR 32 and Stonebridge Housing Action Trust v Gabbidon [2003] EWHC 2091 (Ch) considered. The district judge had erred in the exercise of her discretion. Her main reason for suspending the order seemed to have been the lack of further offences and her acceptance of the respondent’s assertion that he had reformed. However, that was contrary to the evidence of the respondent’s previous convictions and his general attitude towards his offences. Bearing in mind the seriousness of the offences and the respondent’s previous attitude, the district judge should not have accepted his submissions as to his reform without asking him to submit evidence on that point.
Exercising the discretion anew, the relevant factors were: (i) the seriousness of the offences, which involved substantial cultivation involving a large proportion of the premises; (ii) the fact that this was the respondent’s third offence of cultivation at the premises; and (iii) his general attitude, which showed complete disregard for the terms of his tenancy. Those factors were a more accurate guide to his future conduct than the lack of offences since 2005. The appellants, as providers of social housing, were under a duty to ensure that their properties were properly run and free from such activities. Unless there was cogent evidence that the respondent had mended his ways, the appellants were entitled to an outright possession order. Since there was no such evidence, an outright order would be made.
Catherine Rowland (instructed by the legal department of Sandwell Borough Council) appeared for the appellants; David Griffiths (instructed by Millichips, of Birmingham) appeared for the respondent.
Sally Dobson, barrister
