The Court of Appeal considers suspended possession orders

01 Jan 2018

Housing, Public Law and Judicial Review

On Thursday, 7 July 2016 the Court of Appeal handed down judgment in City West Housing Trust v Lindsey Massey; Manchester & District Housing Association v Vincent Roberts [2016] EWCA Civ 704.  It concerned the proper approach to the suspension of possession orders made on discretionary grounds, and Andy Lane considers its effect.

Facts: In the City West case the tenant’s partner had converted one of the bedrooms into a cannabis farm, where he cultivated some 300 plants. The tenant denied any knowledge or involvement in the enterprise and was never prosecuted.  The district judge did not accept this version of events however and found that she was lying in order to stop losing her and her children’s home.  Despite this the district judge was prepared to suspend the inevitable possession order:

“However, I am satisfied that you have now had your position made clear to you. You having acceded to terms of suspension to control the future situation, you have sufficiently demonstrated willingness to comply for the future with the terms of your tenancy….”

The housing association’s first appeal was dismissed on the basis that the district judge was entitled to come to the conclusions he did upon hearing the live evidence.

In the Manchester & District case cannabis was found growing in the bedroom of a one-bedroom flat.  The tenant said he had no access to that room and he had been threatened by a gang. The district judge hearing the subsequent possession claim clearly did not accept the tenant’s full account (he was successfully prosecuted for permitting the cannabis production and had received money for allowing it) but took into account his early guilty plea, the contrition shown and absence of any other problems with his tenancy.

The housing association successfully appealed this order, HHJ Platts finding:

“It seems to me therefore that on his own analysis the District Judge has found that there is no sound basis for such a hope and that is the error into which, in my judgment, he has fallen.”

Appeal arguments
City West argued that there was no cogent evidence for the prospect of change – the tenant had failed to engage, had been found to have lied to the court and had shown no remorse. A judge in suspending such an order should give reasons why the tenant could be relied upon as to future conduct (especially if they had been found to have lied).

The tenant in Manchester & District argued that the district judge was best placed to consider the question of suspension, and the imposition of conditions to encourage adherence (such as allowing regular inspection of the demised premises) would assist the tenant, who had shown remorse and accepted responsibility, keep his word.

The Court of Appeal allowed the appeal in the Manchester & District case but dismissed the appeal brought in the City West case. Lady Justice Arden provided the leading judgment and she found:

When Lord Justice Gage talked of ‘cogent evidence’ being required to show the defendant had “mended their ways” before suspending any possession order in Sandwell MBC v Hensley [2008] HLR 22, in which Catherine Rowlands of Cornerstone Barristers acted for Sandwell Metropolitan Borough Council:

“47…To be “cogent”, the evidence must be more than simply credible: it must be persuasive. There has to be evidence which persuades the court that there is a sound basis for the hope that the previous conduct will cease or not recur.”

The focus is very much on the future (48) and may involve the input and support of others (49).

Dishonesty in a tenant’s evidence is not a complete bar to the making of a suspended possession order (51), though it is a serious matter and could lead to a court not accepting the tenant’s assurances about future conduct (52).

A judge should identify what elements of a tenant’s evidence is accepted and not accepted, and to assess credibility the court should normally hear from the tenant (55). District judges are well-placed to consider and assess such evidence (58).

“66… But the fact of the matter is that the assessment of evidence of a tenant is in all cases a question for a trial judge. The product of that assessment is not properly described as mere speculation, but an assessment by the court based on demeanour. The judge was entitled to make that assessment. He could, if he thought it right, cross-check that assessment by reference to objective facts and other matters. The judge was entitled to ask himself about Ms Massey’s motive for lying and being unco-operative because he had to decide if that affected the credibility of her assurance about future conduct.”

In the Manchester & District case the appeal judge was wrong to find the trial judge had erred in taking account the inspections that would be undertaken by the landlord when assessing whether there was ‘cogent evidence’ (68). A tenant has to be willing to comply with their tenancy conditions but it may be that they are only be able to do so with a third party’s help.

This judgment has already attracted some unjustified and exaggerated comment.  It does not depart from existing jurisprudence and rather helps to clarify the meaning of what the ‘cogent evidence’, which a tenant must demonstrate to allow for a suspended order to be made, in fact means.