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14 December 2015 | Comment | Article by Bethan Gladwyn

The mandatory ground: A cautionary tale


It is worth revisiting the use of Ground 7A (the mandatory possession ground for assured tenants introduced by the Anti-Social Behaviour Crime and Policing Act 2014) following the recent case of Goode v Paradigm Housing (October 2015, unreported). This was a County Court appeal of a Ground 7A possession claim.

In summary, the Appellant was a recovering drug addict and assured tenant of Paradigm Housing. The police had successfully obtained a 3 month Closure Order. Whilst the Closure Order was in place, Paradigm Housing also served the Appellant with a Notice Seeking Possession relying on Ground 7A, in addition to grounds 12 and 14 to Schedule 2 Housing Act 1988. Paradigm Housing then issued possession proceedings and a possession hearing was listed in June 2015. By the date of the hearing (some 2 months after proceedings had been issued) the Closure Order had expired and the Police had not applied to extend it. The Appellant’s behaviour had also improved by the date of the possession hearing.

At the possession hearing, the Appellant sought an adjournment to enable her to secure legal representation. This was refused on the basis that Paradigm Housing were relying on a mandatory ground for possession and the Court was satisfied that the ground was made out and consequently an outright possession order was made. As it was a mandatory ground rather than a discretionary ground, the Court did not have to consider whether it was also reasonable for an order to be made and could deal with the matter summarily.

Following the possession hearing, the Appellant sought legal advice and lodged an appeal on the basis that the failure to grant an adjournment amounted to a breach of her Article 6 Rights (Right to a Fair Trial). The Appellant also raised an Article 8 Human Rights defence and argued that as her behaviour had improved, an outright possession order made on a mandatory ground was not proportionate. Finally, it was argued that Paradigm Housing had failed to offer the Appellant a review of their decision to seek possession on a mandatory ground. Permission to appeal was granted and the parties settled by way of a Suspended Possession Order, having to rely on the discretionary grounds pleaded rather than the mandatory ground.

This case clearly demonstrates the importance of approaching the mandatory ground with caution. Ground 7A is a useful tool to deal with serious anti-social behaviour but will not be appropriate in every case. Landlords should adhere to the Home Office Guidance (Anti-Social Behaviour, Crime and Policing Act 2014) which states “the new absolute ground is intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively.”

In addition to ensuring the ground is made out, Landlords must also ensure that they follow the correct procedure which involves first serving a Notice Seeking Possession, containing certain prescribed information within 12 months of the finding or conviction or within 3 months when the property has been subject to a closure order. Although not legally required to do so, Housing Associations are advised to offer a review procedure to the tenant. A failure to do so could lead to a public law challenge by the tenant. The request for a review should be made in writing within 7 days of the Notice Seeking Possession being served on the tenant. The review should be carried out by the Landlord before the expiry of the Notice Seeking Possession. The outcome of the review should be made in writing and if a decision is made to proceed to court, reasons must be given to the tenant. It is vitally important to have a watertight review policy in place and to follow this closely prior to issuing proceedings, as a failure to do so could lead to costly court proceedings and an unsatisfactory settlement. The case also demonstrates the usefulness of pleading grounds 12 and 14 in addition to 7A – if Paradigm Housing had not done so, the procedural errors with 7A would have led to no order at all being made.

Author bio

Bethan Gladwyn is head of the housing management team as a result of her capability and specialist knowledge in her field of law. A specialist in social housing law and practice, anti-social behaviour and landlord and tenant (residential), Bethan assisted in setting up Wales’s first anti-social behaviour unit at Hugh James.

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