The Court of Appeal, refusing an application for leave to appeal, observed that it would helpful if trial judges expressly referred in their judgments to the question of ‘reasonableness’ (Housing Act 1985 s84) and how they had resolved that question. As this judge had in fact considered whether it would be reasonable to grant possession there was no prospect of his order being disturbed.

In subsequent possession proceedings brought by the purchaser, the Court of Appeal held that no possession order could be made unless the conditions in Rent Act 1977 s98(1) (ie, a ground for possession and reasonableness) were satisfied.

The appeal was dismissed. Simon Brown LJ said that ‘an order such as this is not in law capable of being consented to unless the terms of the Act are satisfied’. A distinction has to be drawn between a form of order which contains an admission about those matters on which the jurisdiction to make the order rests (eg, reasonableness) and an order such as this one which did not. The bar against appealing against an order made by consent contained in CCR Order 37 r6(1) did not apply and the judge had jurisdiction to set aside the order. Nothing in the order itself or in the circumstances surrounding the making of the order indicated that Ms McBride had admitted that it was reasonable to make the order. Nor had the district judge taken sufficient steps to satisfy herself of the reasonableness of making the order. Simon Brown LJ said:

The tenants’ appeal was allowed. The court had not considered the validity of the notice to quit or whether it was reasonable to make a possession order.

The Court of Appeal granted his application, approving Glidewell J’s conclusion that:

The Court of Appeal held that the implied admission in the consent order that the tenant was not a secure tenant taken together with the fact that the order was made by the judge after at least some evidence was heard, enabled the order to stand despite the general rule that statutory protection cannot be undermined by a simple order based on consent. (See also Morris v Barnet LBC December 1995 Legal Action 18, CA, Housing Law Casebook 4th edition, E14.10.)

The Court of Appeal allowed the tenant’s appeal. The county court judge was wrong in refusing to allow the defendant to withdraw the admission made or to lodge a defence out of time. Furthermore, it said that courts must consider whether it is reasonable to make an order for possession at the date of the hearing and not at an earlier stage.

On appeal by Mrs Fadayomi, the Court of Appeal set aside the possession order and held that (a) the wife had an interest in the proceedings as a member of the family for whom the new accommodation was required to be suitable (she should therefore have leave to intervene and be joined as a defendant) and (b) ‘consent orders’ have no place in public sector proceedings, because the court must be satisfied that the appropriate grounds and conditions (eg, reasonableness) are made out. The court can have jurisdiction only if the necessary matters are proved by evidence or if there is express admission of the relevant facts.

In proceedings for judicial review Longmore J set aside the order on the basis that it was granted without jurisdiction. An order for possession can be made only if the court is satisfied both that a ground for possession is made out and that it is reasonable to order possession. Applying Hounslow LBC v McBride (Hounslow LBC v McBride) in the absence of any express or implied admission of those matters, there was no basis on which the order could be sustained.

Quashing the possession order, McNeill J held that, before a court can make a possession order under Case 9, three conditions have to be satisfied. First, the court must consider it reasonable to make an order. Second, it must be shown that the property is reasonably required. Third, the court must be satisfied on the question of greater hardship. The court has jurisdiction to make a consent order only where those conditions are proved or the tenant has plainly and expressly admitted them.

The Court of Appeal allowed the tenant’s appeal and remitted the case to the county court. Following Second WRVS Housing Society v Blair (Second WRVS Housing Society v Blair) the judge ought to have had more regard to the fact that current rent was being paid and that the benefit system was both causing and then dealing with the arrears. Looking at the overall position, this was a responsible tenant whose position had stabilised. The tenant should not be penalised for the fact that the Benefits Agency paid the council quarterly in arrears. On a new exercise of the court’s discretion, a possession order might not be made.

The defendant’s appeal was dismissed. The Court of Appeal held that, on the evidence, the judge was entitled to come to the conclusion that there was a service occupancy which came to an end at the same time as Mr Griffiths’s employment, see Ivory v Palmer [1975] ICR 340, CA. Second, although the judge did not specifically refer to the question of reasonableness (Rent (Agriculture) Act 1976 s7(2)), the Court of Appeal was satisfied that:

The Court of Appeal held that a reasonable tenant would have put aside the rent money to meet the eventuality of the counterclaim failing. The judge had rightly looked at the tenant’s history of late rent payment, his failure to make any provision to meet the arrears, and the fact that he was single and under-occupying premises in an area of great housing need. In answer to the assertion that it was not reasonable to make an absolute order and that the judge ought to have suspended any order made (Housing Act 1985 s85), Waite J stated that, in ordinary circumstances, it would not have been reasonable if the tenant had made arrangements, in the event of the failure of his counterclaim, for the early discharge of the arrears. However, in exceptional circumstances where there was a bad history of persistent delay in paying rent, it could be reasonable to do so. The appeal was dismissed and illustrates the difficulty of appealing first instance decisions on reasonableness.

Sedley LJ gave permission to appeal, saying that, in his experience

The Court of Appeal allowed the tenant’s appeal and discharged the possession order. Chadwick LJ said that the first requirement for a judge who had found a ground for possession to be proved was to ask whether it was reasonable to make a possession order at all and then, second, to ask whether the order should be stayed or suspended under s100(2). He held that the trial judge had erred in law in holding that any suspended possession order should include terms about paying the licence fee and giving access. The correct approach was to determine the extent of the rent arrears and how quickly those were likely to be paid. If a suspended possession order had been made on the tenant’s offer of £10 per week the arrears would have been discharged within a year. Section 100(4) contemplates that it is usual to discharge a suspended possession order once arrears have been paid off. In those circumstances it would not have been futile to make a suspended possession order. The Vice-Chancellor indicated that the judge had been wrong to take into account matters which had not been pleaded (eg, the fact that the tenant had made it difficult for the landlord to carry out repairs). He should have constrained himself to those matters properly pleaded by the landlord to establish whether the order for possession should have been suspended. He said:

The Court of Appeal dismissed the appeal. A suspended possession order (SPO) had been the obvious order to make. Although the court practice was to be merciful to tenants and to give them a realistic opportunity to pay arrears, the question of whether it was appropriate for Ms Henry, 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. The order was fully permitted under the Housing Act as it stood. There were, in any event, cases in which long-term suspension of orders was appropriate and this was such a case.

The court held that the judge had erred in principle in failing to make any order for possession. The tenant was in clear breach and the bulk of the debt had been outstanding since 1992. Nothing had been put aside in case she was found liable to pay. The council was out of pocket and tenants as a whole were disadvantaged by non-payments. The fact that the bulk of the money would ultimately go to a privatised utility company was irrele-vant. A suspended possession order should have been made. However, the Court of Appeal decided that no order should now be made because deductions in respect of small repayments towards the arrears were being made directly from the tenant’s welfare benefits.

Dismissing the appeal, the Court of Appeal held that these were both matters which could have been put before the trial judge and that it was unlikely that they would have had an important influence on the result of the case.

The Court of Appeal set aside the order because the judge had failed to consider in detail the question of reasonableness and, in particular, the available welfare benefits. The case was sent back for reconsideration to ascertain ‘more fully the benefits which could be obtained from the DHSS in relation to arrears and more generally in relation to [the tenant’s] condition’. Dillon LJ stated:

The Court of Appeal found that the judge had erred and that it was not reasonable to make a possession order and allowed Mrs Stutchbury’s appeal. The judge was not entitled to take into consideration against her the fact that she had relied on her statutory rights. Kerr LJ approved the following passage in Woodfall volume 3, para 3-0166:

The appeal was allowed. Any suspension should be for a definite period of time and should not extend into the mists of time. The judge had been wrong to attach too much importance to the history of the matter and why the arrears had arisen and too little to the fundamental purpose of a suspended possession order which is to enable the arrears to be paid off within a reasonable time. Robert Walker LJ said

The Court of Appeal set aside the order, finding that no reasonable registrar (now district judge) could have found that it was reasonable to make the order. Waller LJ stated that it was ‘hard to understand a conclusion that it was reasonable to make an order turning them out of their house’ (at p99).

The Court of Appeal dismissed the appeal. In considering the issue of reasonableness, the likelihood of continuation of nuisance is obviously significant. The greater the likelihood of continuation, the more reasonable a possession order is likely to be. In this case, it was plain from the judgment that the judge asked himself the right question, namely whether or not it was reasonable to make a possession order. He considered some of the psychiatric evidence. He noted that the conduct of the defendants was the result of their mental illness, and equally noted the effect on the neighbours. He had abatement in mind, but considered that it did nothing to mitigate the effect on the neighbours. The decision on reasonableness was one that fell into the category of decisions with which the Court of Appeal would not interfere in the absence of a manifest error of principle, a failure to take a relevant consideration into account or the taking into account of an irrelevant consideration. The Court of Appeal detected no error of principle and found that all relevant factors were carefully considered.

The Court of Appeal dismissed her appeal. The appeal was ‘in reality [an] attack … upon the exercise of judicial discretion’ (para 28). It was not possible to argue that no judge could properly have made an immediate order for possession in this case. It could not be said that the judge had been plainly wrong to make the order. He had a very clear grasp of the detail of the case and had given proper reasons for his decision.

The Court of Appeal held that the propriety of the council’s policy was not a factor relevant to the exercise of discretion. The judge should not have been concerned with the propriety or impropriety of the policy rule. His concern should have been with the reasonableness in the particular case of ordering possession. The case was remitted for retrial.

HHJ Owen QC found that the grounds for making a possession order were proved and that it was reasonable to make a possession order. However, he decided to suspend the possession order on terms. Birmingham appealed, submitting that the judge had not given sufficient consideration to the matters set out in Housing Act 1985 s85A(2) (the effect of the tenant’s conduct in the past, the present and the future) and that he should have made an assessment of the effect of the tenant’s conduct.

The Court of Appeal allowed the appeal. There was still a significant risk of future harmful events occurring. The judge’s analysis of the situation was flawed. There was undoubtedly a past history of lapses from sobriety which did not appear to have been given any weight by the judge. It was clear that if Mr Ashton relapsed into abuse of drink or drugs, further highly unpleasant incidents of the sort which had occurred in the past were ‘very likely to recur’ (para 39). The judge did not appear to have made any assessment of that sort for himself. Treacy LJ said:

The Court of Appeal dismissed the appeal. May LJ stated ‘The judgment as to reasonableness is intrinsically one of judicial balance akin to the exercise of a judicial discretion. It is the kind of judgment with which [the Court of Appeal] is likely to be slow to interfere for well trodden reasons.’ He continued:

The Court of Appeal allowed the council’s appeal. The judge had misdirected himself. Whether the tenant would be rehoused was a matter for the council. The delay between the last allegation and the trial had largely been caused by the tenant’s failure to comply with the court’s directions. The proper approach in a case of the commission of a most serious breach of the tenancy agreement was that it would be reasonable to order possession in the absence of some exceptional circumstance. There were no exceptional circumstances and possession should be ordered.

The Court of Appeal dismissed the appeal. It was common ground that HHJ Trigger should only have made an immediate order if there was no lesser alternative which would realistically make sense. Jacob LJ stated that this boiled down to a simple question, ‘could the court be satisfied that there was no longer any real risk that the appellant would not do to the property that which he had done before?’ He could see no fault in the judge’s conclusion. ‘The consequences of getting this one wrong could be catastrophic.’ The judge had considered reasonableness and whether there should be suspension or postponement. ‘The judge was absolutely right in his judgment.’

The tenant appealed unsuccessfully to the Court of Appeal. It was clear that the judge had been fully aware that he had to consider reasonableness. He had differentiated between acts done by the defendant and acts done by her visitors. His approach had been fully consistent with Kensington and Chelsea RLBC v Simmonds (Kensington and Chelsea RLBC v Simmonds).

The Court of Appeal held that (1) what had happened after the making of the possession order was irrelevant when deciding the appeal; (2) the trial judge had erred in taking into account the availability of an injunction which had been made when considering making a suspended order; (3) reliance by the council on Bristol CC v Mousah (Bristol CC v Mousah) was misplaced because the circumstances were very different; but (4) taking all the evidence into account, and in particular the effect on the neighbouring family, it was not a case in which a possession order ought to have been suspended. An outright possession order was made.

The Court of Appeal, allowing the appeal in part, held that:

In Massey, a district judge decided that Ms Massey’s claim that she was unaware that a third party was growing cannabis in her property was untrue. However, the district judge suspended the possession order on conditions that she comply with her terms of tenancy, the person responsible for growing cannabis in her flat be prohibited from returning to the flat and allowing the housing trust the right to inspect the property on less than two hours’ notice. The district judge was satisfied that there was a sound basis for believing that such an order would prevent further instances of criminal behaviour.

In Roberts, the district judge found that Mr Roberts had not given a full and truthful account of how cannabis had come to be grown in the property. The district judge also suspended the possession order because he was satisfied that the tenant would not grow cannabis in his flat again because he was satisfied that Mr Roberts had expressed genuine remorse, understood what he had done was wrong, had pleaded guilty to the offence at an early stage and there had been no other breaches of tenancy.

Both landlords appealed to a circuit judge. The appeal in Massey was dismissed and allowed in Roberts. City West Housing Trust and Roberts appealed to the Court of Appeal.

The Court of Appeal dismissed City West’s appeal and allowed Mr Roberts’ appeal. It noted that the making of suspended possession orders is necessarily a fact-sensitive exercise and concluded that the district judges were entitled to make the orders which they made and so the orders were not open to review. Arden LJ referred to ‘the generous ambit of discretion which is allowed’ under Housing Act 1988 s9 [19]. In both cases, the tenants were not found to be primarily responsible for the cannabis cultivation and there was no evidence of previous offences or breaches. Both tenants expressed a willingness to comply with the terms of the tenancy in future. The Court of Appeal did give ‘some limited guidance’ for the future, although it made it clear ‘that a judge’s failure to follow this guidance would not of itself be a ground on which an appellate court could set the exercise by a judge of their discretion.’ Arden LJ noted that the leading authority as to the exercise of discretion is Sandwell MBC v Hensley (Sandwell MBC v Hensley) where the Court of Appeal overturned a suspended possession order because there was there was no basis on which the assistant recorder could have been satisfied that the tenant would observe the terms of his tenancy in future. In that case, Gage LJ, referring to criminal convictions at the premises, said ‘The more serious the offence, the more serious the breach. Convictions of several offences will obviously be even more serious. In such circumstances, it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates … a sound basis for the hope that the previous conduct will cease’[25]. Referring to ‘cogent’ evidence for the hope that the previous conduct will cease, Arden LJ said:

The Court of Appeal allowed the tenant’s appeal. The recorder was not entitled to reject the medical evidence and it should have been taken into account in considering reasonableness (Housing Act 1985 s84), particularly if there was a prospect of the tenant being treated so that his behaviour improved. In the alternative, the evidence was relevant to the question of whether any order should be suspended. Furthermore, the court doubted whether (notwithstanding Shrewsbury and Atcham BC v Evans (Shrewsbury and Atcham BC v Evans) and Bristol CC v Mousah (Bristol CC v Mousah)) a trial judge was precluded, when considering reasonableness, from considering the likelihood of a finding of intentional homelessness and the question of whether the tenant would be left without any accommodation at all.

The Court of Appeal allowed the council’s appeal. The district judge’s judgment had not been vitiated by any error and there were no grounds on which the circuit judge, in exercising his appellate jurisdiction, was entitled to set it aside. It was not permissible for the court to require suitable alternative accommodation to be provided in a Ground 2 case when parliament had imposed only a requirement of reasonableness.

The Court of Appeal dismissed the appeal.

Hooper LJ said:

Hooper LJ also rejected a submission that the judge had failed to have regard to Baroness Hale’s remarks in ZH (Tanzania) [2011] UKSC 4; [2011] 2 WLR 148, that: ‘In making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration’ (para 33). In this case, the judge had given full weight to the interests of the children, particularly the older child and the four younger children. It was not arguable that the judge did not take the interests of the children into account as a primary consideration. The court also rejected the submission that the judge ought to have found out what would happen to the children. He was entitled to assume that the local authority would ‘comply with their numerous statutory and regulatory requirements which impose upon them duties towards children’ (para 26).

The tenant appealed on the ground that the judge ought to have suspended the order. The Court of Appeal allowed the appeal and suspended the possession order for 12 months. In exercising its discretion, the court could take into account the wider public interest. The tenant was a young man trying to live a life free of crime and there was a serious possibility that that attempt would fail if he lost his flat. It was in the public interest generally, and more likely in the interests of the community that he would live an honest life if he remained in the flat. The council had a duty to consider its other tenants and people on its waiting list, but the balance was in favour of suspending the order. If Mr Grogan committed any other offences, the chances of him remaining a tenant in Greenwich were very small indeed, whether the criminal conduct was before or after the period of suspension.

The Court of Appeal dismissed the appeal. The fact that Ms Tuitt was not personally responsible for her son’s behaviour did not prevent the judge from making an outright order for possession. The judge had taken a fair and complete view of the facts and had properly considered the lack of personal fault on the part of the tenant. His refusal to suspend the order was open to him on the facts.

The Court of Appeal dismissed the appeal but amended the order to provide that the claimant should apply on notice before seeking a warrant. It held that:

The appeal was dismissed. There comes a point when anti-social tenants must face the consequences of their actions. Mr Howard’s past obsessive harassment meant that he was in no position to dispel the fear that he had instilled in his neighbour and her daughter by any undertakings. The order for possession was appropriate and proportionate. Second, the county court judge was not obliged to consider the Human Rights Act 1998 because at the time it was not in force. However, because of its imminent arrival, the judge did consider whether or not an order for possession would conform with the Human Rights Act 1998. As the judge pointed out, there was a need to find a fair balance and accordingly protect the rights of the neighbours and other members of the public. The judge’s findings on this issue could not arguably be regarded as incompatible with the Human Rights Act 1998. The eviction had to be in accordance with the law in this case and had to be balanced against the neighbours’ right to live in peace. An outright possession order was necessary in consequence of the past obsessive harassment. There is nothing in Article 8 that should carry county courts to materially different outcomes when considering whether it is reasonable to make a possession order. The judge’s reasons, findings and conclusions could not be criticised.

The Court of Appeal dismissed the appeal. The offer of an undertaking did not constitute fresh evidence in any meaningful sense. If the undertakings were sincere, the place and time for them to have been offered would have been at or before the original trial. The making of a suspended order for possession involves an assessment of the tenant’s future conduct, his past behaviour, and the reliance to be placed on his promise. That was the province of the trial judge, who had intimate knowledge of the facts of a particular case and enjoyed the benefit of having seen witnesses in person. In this case, the judge had drawn on all that material and her conclusion that it was not appropriate to suspend the order did not fall outside the range of decisions open to her, but was instead plainly right. Those who committed persistent breaches of tenancy agreements had to understand that they were at risk of immediate possession orders in certain circumstances; it was not the case that because individual breaches of tenancy agreements were small, a suspended order would be made. In this case, the judge had been exemplary in her approach to the evidence, to the issue for decision and in performing the balancing exercise, and she had been entitled to make the decision she had made.

The Court of Appeal dismissed the appeal. It could not be said that the judge’s decision to make a final order was clearly wrong. It was a very bad case. Although it was Ms Root’s partner who caused it to be so bad, the relationship between Ms Root and her landlord had totally broken down and there was a limit to the extent to which the court could tolerate such behaviour for the sake of the tenant and her three children. Although the judge could have spelt out the reasons for his decision in more detail, it was clear that he had directed himself correctly on the law and had taken the correct matters into account.

The Court of Appeal allowed the appeal. The discretion of the court to make a possession order under Housing Act 1985 s85 is unfettered, but it has to be exercised judicially. It follows that all the circumstances of the case which are material are to be borne in mind. In one case, the facts giving rise to the making of an ASBO might be so serious that both the making of a possession order and the refusal to suspend it would be self-evident. In another case, making an ASBO might have served its purpose of restraining future misbehaviour so that, although past conduct might make it reasonable to order possession, suspension might still be possible. If the misconduct by the tenant or even by a member of the household is serious and persistent enough to justify an ASBO, that is strong but not conclusive evidence that the tenant would have forfeited any entitlement to retain possession. Since the court would already have found that it was reasonable to make a possession order, the question whether or not to suspend its execution has to be very much a question of the future. Previous unheeded warnings point one way, genuine remorse the other. The level of support available to a parent who is making proper efforts to control an errant child is relevant. However, there has always to be a sound basis for the hope that the anti-social behaviour will cease. Ultimately, given the respect for a tenant’s home, guaranteed by Article 8, the question is whether an immediate possession order is necessary in order to meet the need to protect the rights and freedoms of others, the neighbours, and is proportionate. In this case, the behaviour of Ms Higgins and her children, especially the son, had been quite intolerable. The son had shown himself unrepentantly anti-social. In the absence of any expression of remorse or any well-founded expectation of improvement, it was disproportionate not to make an immediate possession order. The mere fact that the ASBO would remain in force until the son attained the age of 16 would not give the neighbours sufficient protection. Ms Higgins was without remorse and totally indifferent to the effect her children’s behaviour was having on her neighbours. She had forfeited her right to respect for her home. The recorder should have made an order for possession in 28 days.

Auld LJ refused an oral renewal of Mr Langridge’s application for permission to appeal. Although it was argued that there had only been findings of acts of nuisance and annoyance on 17 out of almost 700 days and that this was not enough to justify a possession order, Auld LJ could not say that the trial judge’s reasoning was so wrong as to give Mr Langridge a real prospect of success if the matter were to go forward to appeal. Although another judge might have taken a different view, the proposed grounds for appeal were simply an attempt to re-argue the case on the facts.

The Court of Appeal allowed the tenant’s appeal on the ground that it was not reasonable to make an order for possession. The incidents were, ‘on the history, fairly to be regarded as no more than a pretext for enabling the landlord to expand the overcrowded accommodation which he occupied’.

The Court of Appeal allowed the appeal. There was no reason to suppose that Ms Ashcroft would take the opportunity to curb her son’s conduct. She had herself uttered threats to neighbours about what would happen if she was evicted. She failed to show any regret for her son’s conduct or any basis on which she sought to put it right. The judge had failed properly to consider the position and rights of the neighbours. It was appropriate to interfere with the judge’s exercise of discretion and set aside the order suspending the order for possession.

The Court of Appeal allowed the council’s appeal. The court noted that the tenant herself had not been involved, had been a secure tenant of the house for ten years and, as a single parent with another younger child, had been unable to control her eldest ‘rampaging, destructive, intimidating and sometimes dangerous sons’. However, there had been a catalogue of ‘quite appalling behaviour over a period of more than six years’ involving ‘plain, repeated and grave breaches of the tenancy agreement, numerous offences affecting the neighbourhood and a dreadful catalogue of incidents’ which was like ‘a reign of terror’. On those facts the case ‘obviously’ called for the making of an order. The judge had been wrong to consider that the council could have controlled the activities of the sons by the alternative remedy of an injunction (applying Sheffield CC v Jepson (Sheffield CC v Jepson)). Equally it had been wrong to take account of the fact that the sons might continue to cause mayhem in the locality even if their mother were evicted (applying West Kent HA v Davies (West Kent Housing Association v Davies)). The Court of Appeal substituted a 28-day possession order.

The Court of Appeal dismissed the appeal. There was no error in the judge’s decision and his conclusion was one that was open to him. The judge was not engaging in the illegitimate exercise of speculating about whether or not Ms Batchelor would be rendered homeless. He merely held that, on the facts, her conviction for possession of cannabis was not sufficiently serious to warrant the making of a possession order. The judge was entitled to hold that Ms Batchelor’s breaches of the tenancy agreement were not such as to make it unreasonable for him to decline to make a possession order.

The Court of Appeal allowed the appeal. The judge was wrong, when deciding whether it was reasonable to make a possession order, to rule out the possibility that the court could meet the circumstances of the case by postponing the date for possession and imposing conditions (ie, a suspended possession order). It was wrong to assume that a suspended order would be absolutely pointless and a recipe for disaster. The judge had overlooked the possibility that, by postponing the date for possession on appropriate conditions, the situation could be controlled by the court. In exercising his discretion in this way, he had therefore erred in principle. The Court of Appeal, exercising the discretion itself, decided that it was reasonable to make an order for possession, but the date for possession would be postponed. The case was remitted to the county court to consider what terms should be imposed under Housing Act 1985 s85(3).

The Court of Appeal allowed Sandwell’s appeal and substituted an outright order. Where an individual commits a criminal offence, a possession order should only be suspended in exceptional circumstances where there is cogent evidence to demonstrate that the offender’s particular conduct had ceased (Bristol CC v Mousah (Bristol CC v Mousah)). The judge’s reasons for suspending the order did not stand up to scrutiny since they were sparse and provided little explanation of which facts she considered were relevant. It was of particular concern that the decision was made without hearing oral evidence from the defendant. Although the judge made a passing reference to the defendant’s previous convictions, she did so without referring to the impact they had had on her decision. In the circumstances, the judge had exercised her discretion poorly, as the defendant had run a sophisticated operation with complete disregard for his tenancy agreement and those around him. Local authorities and providers of social housing have a duty to keep areas free of criminal conduct where possible and, unless a court is provided with evidence demonstrating real hope that an individual has changed his or her ways, those landlords are entitled to an outright possession order.

The Court of Appeal held that: (a) the matters of evidence should have been, but were not, put before the trial judge and the court could not consider them afresh; (b) where there was an admitted breach of covenant and an intention to continue with the breach, a landlord should only be refused possession in a ‘very special case’ (Bell London and Provincial Properties Ltd v Reuben [1947] KB 157, CA); and (c) in those circumstances, there was nothing the court could do to assist the appellant, who could only seek the ‘mercy’ of the council to waive the breach.

The Court of Appeal directed a rehearing, because there had been no evidence at trial in the county court to justify the judge in so exercising his discretion. The term in the tenancy agreement was necessary and the breach of the term was deliberate and persisted in after requests that it cease. It is in the public interest that necessary and reasonable conditions in tenancy agreements are enforced fairly and effectively. Although the council could have obtained an injunction, there was no reason why it should be expected to do so. A suspended possession order which can be extended or set aside is in many cases a better remedy than a fine or imprisonment.

The council’s appeal was dismissed. There is no general principle that, where the harassment of neighbours is such that the fear and tension cannot be dispelled, an immediate possession order must be made. That is simply a possible judgment to take depending on the facts of the case. Judging sincerity is the province of the trial judge. Mr Shaw’s potential homelessness was not the judge’s sole consideration. There were various other considerations in his judgment, primarily the optimism shown that Mr Shaw was capable of reform. In this case, the previous opportunistic apology by the defendant to the police, and the fact that he had denied all or most of the historic allegations at the hearing, did not compel the conclusion that the judge’s assessment for the future had to have been wrong. Although the defendant might have shown no more than embryonic remorse, and had failed, for many years, to understand the effect of his conduct, that did not preclude the assessment that proper psychiatric help could help him mend his ways. In that regard, the judge had not misunder-stood the evidence of the probation officer. Although she had expressed reservations about whether he would continue his unacceptable behaviour, she had said that Mr Shaw was capable of reform, and had been prepared to back that judgment in her proposals to the sentencing judge. It was, moreover, a matter of fact that the girl no longer lived close to the defendant. It followed that the order had not been made outside the judge’s discretion, and was not plainly wrong. The judge had made no error of law.

The Court of Appeal dismissed the appeal. There was no error in the way in which the judge had admitted the hearsay evidence, or the weight he had given to it. The reason for not adducing live evidence was the witnesses’ fear of reprisals. That was clearly a reason that the judge had been entitled to put into the balance in deciding what weight to give to the evidence. Second, when deciding whether to suspend an order for possession, the court has to consider whether the anti-social behaviour is likely to happen again. It is relevant that it may be difficult to prove breach of a suspended order, or who was responsible for an alleged breach. The suspension of an order may not diminish the fear that neighbours feel but that fear may be removed by an immediate order for possession. Furthermore, the Court of Appeal will not interfere with a judge’s discretion unless it is plainly wrong. In this case, the judge was entitled to make the order that he had made. The severity of the conduct which he found proved overlaid any subsequent improvement in the defendants’ conduct, and they had, in any case, been unrepentant about their behaviour.

The Court of Appeal dismissed the council’s appeal against a refusal of the county court judge to order possession. The court held that: (a) the judge had to take into account all the circumstances; (b) that would include the risks to other tenants, the landlord’s duty towards those other tenants, and the effect on each party of a possession order; and (c) since the judge had expressly found that the tenant had not taken an active part in the events leading to the fire and there had been no problems since his return, the judge had not erred in dismissing the claim on the basis that it was not reasonable to make the order.

The Court of Appeal allowed the appeal and set aside the order for possession. The unsuccessful prosecutions had formed a material part of the judgment, and the judge had erred in taking such matters into account. If a fact has to be proved, a judge has to decide whether or not it happened. There is no room for a finding that it might have happened, B (Children) (Sexual Abuse: Standard of Proof), Re (2008) UKHL 35, (2009) 1 AC 11. The evidence upon which the landlord relied amounted to no more than evidence that the son might have breached the order.

Sedley LJ observed that it was not permissible to use a possession order as a means to bring pressure to bear on a tenant to modify the behaviour of an individual over whom he or she had no control.

The Court of Appeal allowed the landlord’s appeal. The covenant in the tenancy agreement prohibited not only ‘permitting’ but also ‘allowing’ racial harassment. Similarly, Ground 14 clearly covered the conduct of the son. Knowledge or approval of the conduct was not an essential factor in the statutory ground. The tenants had failed to prevent their son’s behaviour (see Kensington and Chelsea RLBC v Simmonds (Kensington and Chelsea RLBC v Simmonds)). The judge should have considered whether it was reasonable to make an order for possession in all the circumstances (Housing Act 1988 s7). He had seriously underestimated the effects of the behaviour on the neighbours and on a socially responsible landlord. In circumstances such as this, it would usually be unreasonable not to order possession. Such an order was necessary to preserve the interests of the landlord and its other tenants in the quality of life and in the maintenance of physical and mental health on the estate. The fact that a number of the tenants who had been threatened were no longer on the estate did not make the matter less serious. The Court of Appeal made a possession order, suspended on terms, for two years.

On the council’s appeal, the Court of Appeal held: (a) the judge’s finding could not be sustained, as there had been no evidence of the character of the neighbourhood and its occupants; (b) insufficient emphasis had been given to the highly relevant fact that the nuisance was continuing and to the obligations which the council had to the other tenants; and (c) the appropriate course was to make a suspended order for possession on terms that any further such conduct would lead to repossession in 28 days.

Blair J allowed the appeal and made an outright order for possession. No good reason was given for Mrs Prescott not giving evidence. It followed that her witness statements were to be given very little weight, and in reality Knowsley’s evidence was unchallenged. After referring to Manchester CC v Higgins (Manchester CC v Higgins), Canterbury CC v Lowe (Canterbury CC v Lowe), Sheffield CC v Shaw (Sheffield CC v Shaw) and Sandwell MBC v Hensley (Sandwell MBC v Hensley), Blair J said that ‘in general terms the more closely the criminal conduct in question is connected to the house in respect of which possession is sought, the more compelling the case for an immediate order of possession’ (para 20). HHJ MacMillan had failed to make any findings about Mrs Prescott’s knowledge of her husband’s ‘activities’. The inference to be drawn from her decision not to give oral evidence was that she did not consider that her denials would stand up to cross-examination. Blair J concluded that HHJ MacMillan had erred in principle because he:

Cranston J allowed Lincoln’s appeal. Mr Bird’s neighbours had described Mr Bird’s behaviour as both threatening and intimidating; the judge had failed to consider this properly when reaching his decision and he had therefore failed to consider the impact of Mr Bird’s behaviour on his neighbours in accordance with Housing Act 1985 s85A. It was unnecessary to remit the matter to the county court as there was only one rational decision available to the court and that would be to make a possession order. However, as Mr Bird’s behaviour had improved from the date of the injunction it was appropriate to suspend the possession order.

Turner J allowed the appeal. Ms Begum, Mr Rohim and their children had moved out of the flat to live with her mother. They had stopped occupying the flat as their only or principal home and had thereby breached their tenancy agreement. Ms Rehana and Mr Ahmed had paid £400 per month to live at the flat. Ms Begum and Mr Rohim had not offered the court any explanation for their conduct nor had they expressed any remorse for it. Mr Rohim had also used the flat as a base from which to further his interest in illegal drugs. Referring to Cumming v Danson (Cumming v Danson), Enfield LBC v McKeon [1986] 1 WLR 1007, Raeuchle v Laimond Properties Ltd (2001) 33 HLR 10, Leeds and Yorkshire Housing Association v Vertigan (Leeds and Yorkshire Housing Association v Vertigan) , Sandwell MBC v Hensley (Sandwell MBC v Hensley) and Manchester CC v Higgins (Manchester CC v Higgins), Turner J stated that ‘the decision of the Recorder was fatally and demonstrably flawed.’ He made a serious error in stating that this was ‘not a case where tenants were unscrupulously making a profit by subletting’. He ‘had plainly overlooked the fact that’ Ms Begum and Mr Rohim were ‘pocketing’ housing benefit and, ‘at the same time, fraudulently harvesting an additional £400 per month from Ms Rehana and Mr Ahmed’. He was ‘entirely satisfied that the Recorder was taken in.’ The fact that the Recorder exercised his discretion on a demonstrably flawed basis meant that Turner J had to exercise that discretion afresh. He concluded

With regards the application for an unlawful profit order, ‘each and every condition’ under PSHFA 2013 s1(4) had been fulfilled. There was however an issue as to the calculation of the maximum amount payable. The Recorder had concluded that the rent which Mr Begum and Mr Rohim were collecting was less than the rent they were paying the landlord and so assumed that the maximum payment was zero. In so doing, he left out of account the fact that the rent for the flat was covered entirely by housing benefit and so the monies received from Ms Rehana and Mr Ahmed were pure profit. Turner J was satisfied that the ‘total amount’ did not exclude the element of housing benefit. The inclusion of the word ‘total’ in Step 1 in s5 which requires the court to ‘Determine the total amount the tenant received as a result of the conduct described in subsection (4)(c)’ indicated that the gross receipts secured and consequent upon the dishonest relinquishment of possession should be considered. ‘To hold otherwise would be to render all but nugatory the clear purpose of the section.’ Turner J made an unlawful profit order in the sum of £1,550.

Lewison J rejected that contention. Although section 110 confers jurisdiction on the county court in relation to matters arising under Housing Act 1985 Part 4, it does not oust the jurisdiction of the High Court. However, he dismissed Ms Fletcher’s appeal. When considering whether to postpone or suspend a possession order that had been obtained on the basis of anti-social behaviour, the court was required to take into account the effect that a continuation of that behaviour would have, or might have, on neighbours. That required the court to look to the future Manchester CC v Higgins (Manchester CC v Higgins). The judge had not erred in principle or reached a decision which was outside his ambit. Past unheeded warnings tell against a suspension of the possession order. Furthermore, the evidence put before the judge showed no expression of remorse or any assurances for the future. Although the defendant had children, there was nothing about them to which the judge ought to have paid special attention. The fact that the defendant had lived in the area for 16 years was of little weight because of the seriousness of the allegations of anti-social behaviour. Although there had been no previous proceedings against the defendant, the judge had been entitled to form the view that, in light of the degree of anti-social behaviour, an immediate order had been inevitable.

The appeal was dismissed. It is not for the court to make a pre-emptive decision on the possible outcome of an application that might or might not be made to the local authority. Entitlement to Part 7 accommodation is confined to the judgment of the local authority. It is not for the court to anticipate the outcome of that decision. The judge was well aware of the self-evident consequence of a possession order. The legal and practical consequences of homelessness, however, were not before the court, nor need they have been as they were for the local authority to determine. (See also Rushcliffe BC v Watson (Rushcliffe BC v Watson).)

On appeal, the tenants conceded that the recorder had been wrong. The Court of Appeal held that it was by no means a foregone conclusion that, if the council had been told of the house in the Philippines, such information would not have affected the position. It was the false representation that the tenants were still in need of housing that induced the grant of the secure tenancy. The reasonableness of making a possession order needed very careful appraisal. The case was remitted to a different judge.

The Court of Appeal confirmed that, when considering whether or not to grant possession, the county court should bear in mind that Housing Act 1985 s84(2)(a) applies a test of reasonableness to Ground 5. A very real consideration in applying that test is the prospect that, if evicted, the tenant would probably be found to be intentionally homeless. However, the judge’s finding that she could cope with her homelessness and that it was otherwise reasonable to grant possession was upheld.

The Court of Appeal dismissed her appeal. Beldam LJ, after considering earlier authorities (including Darlington BC v Sterling (Darlington BC v Sterling) and Bristol CC v Mousah (Bristol CC v Mousah), said (at 132):

Laddie J dismissed the appeal. Appeals against the exercise of discretion by a judge should succeed only if it can be shown that the judge exceeded the generous ambit of his discretion. It is not the role of the appellate court to substitute its views for the judge at first instance. There was nothing to suggest that the judge had exceeded the ambit of his discretion. His decision should stand.

The Court of Appeal dismissed the landlord’s appeal, holding that it was impossible to fault the exercise of the judge’s discretion.

Dismissing the tenant’s appeal, Roch LJ stated that the court would only overrule a county court judge on the question of reasonableness ‘on very strong grounds’ and would ‘assume that the county court judge has taken all the relevant matters into account unless the contrary is clearly shown’.

The Court of Appeal refused to overturn the judge’s finding. It held that the environmental considerations were relevant in deciding between the two flats and that it was difficult to imagine a case where the court would interfere because a judge had given too much weight to one factor and not enough to another factor.

The Court of Appeal allowed the appeal and dismissed the possession claim. Rimer LJ said:

The Court of Appeal allowed the tenant’s appeal, holding that the judge’s failure to consider reasonableness made the order a nullity. Slade LJ stated that he would have expected the judge to refer to other factors ‘which would appear to have been relevant in relation to the context of reasonableness’, including:

The Court of Appeal dismissed the appeal. In relation to reasonableness, the recorder had directed herself correctly as to the relevant principles, properly considered the evidence before her and identified the material considerations and weighed them with great care in arriving at her conclusion. She made no error of principle and did not arrive at a conclusion which was plainly wrong. The points made on the appeal were all matters which the recorder had considered in ‘her long and careful judgment’ (para 39). She specifically took into account the length of Ms Holt’s residence, the evidence from her doctor that she became agitated when she was away from the property and that it contained a lifetime of belongings and, no doubt, memories. She also expressly mentioned Ms Holt’s anxiety and depression at the thought of having to move and found that there was a real risk that she might not settle elsewhere. Kitchin LJ said that:

The Court of Appeal dismissed the council’s appeal. Mummery LJ said:

Woolf LJ held that the issue ‘was essentially one of fact for the learned judge’ and that his judgment ‘was one which could not possibly be impugned’ by the Court of Appeal.

The Court of Appeal dismissed the tenant’s appeal. In cases such as this, judges should take into account the potential loss of the garden and all other circumstances in assessing whether the accommodation offered is ‘suitable alternative accommodation’. The weight to be given to the tenant’s needs is a matter of degree in each case and some needs are more important than others. In considering the reasonableness of ordering possession, judges should also take into account the housing allocation policy of the authority if it is a reasonable one.

The tenant’s appeal was allowed. The Court of Appeal held that he had been under no legal obligation to do anything to the garden until he became the tenant. The Court of Appeal reiterated that it can only intervene in relation to a county court judge’s finding on reasonableness if the judge has taken something irrelevant into account, has failed to take something relevant into account or has reached a perverse decision. In this case, the judge had failed to distinguish between the tenant’s moral responsibility before he became a tenant and his legal responsibility after his mother’s death. It was not reasonable to make a possession order without giving the tenant the opportunity to tidy up the garden. The Court of Appeal made a suspended possession order requiring the tenant to keep the garden in a reasonable condition of tidiness for one year.