On 7 July 2016 the Court of Appeal (“CA”) handed down judgement in the joined cases of City West Housing Trust v Lindsey Massey; Manchester and District Housing Association v Vincent Roberts (2016). The CA considered in what circumstances it would be appropriate to make suspended possession orders (”SPO”). A welcome step for those who experience inconsistency in approach by district judges in the county courts?
Each of the tenants claimed they were not responsible for the cultivation of cannabis and had no knowledge their property was being used for that purpose. Their evidence was disbelieved, but SPO’s were granted on the condition the tenants complied with the terms of their tenancy agreements in future.
In both cases the conditions set out in the SPO included the tenant being required to allow the housing association access to the property upon two hours’ notice, in order for the housing association to inspect the property and ensure it was not continuing to be used for the cultivation of cannabis.
Both landlords appealed against the suspension of the possession orders. On first appeal, one SPO remained and one was overturned. Permission to bring second appeals to the CA was granted as it was argued that there was uncertainty in the way district judges should exercise their discretion.
Court of Appeal judgment
The CA deliberated how the judge should exercise discretion when granting an SPO, in particular in situations where a tenant has lied in their evidence before the court. The CA also questioned whether an SPO should impose conditions which place responsibilities upon the landlord.
In giving judgment, Arden LJ first addressed whether there were any errors made by the judges on first appeal; she concluded the orders made by the district judges did not demonstrate any error which would entitle an appellate court to intervene.
Despite the lies the tenants may have told the court, the district judges considered:
They were persuaded that the tenants would comply with the terms of their tenancy under a SPO tailored to each of their circumstances.
As to the future, Arden LJ issued guidance as to the approach to be adopted by judges exercising their discretion and considering to grant a SPO (accompanied, of course, with a health warning that these matters are case-sensitive). It is also worth bearing in mind that in cases brought on Ground 14 the structured discretion set out in section 9A Housing Act 1988 still applies.
Court of Appeal guidance
Cogent evidence for the hope the previous conduct will cease:
The leading authority as to the exercise of judicial discretion in these situations is Sandwell MBC v Hensley  HLR 22 which states: before deciding to grant an SPO the court must be satisfied that there is a sound basis that the tenant will observe the terms of the tenancy agreement in the future. Arden LJ held that there must be evidence which persuades the court that there is a sound basis for the hope the previous conduct will cease or not reoccur.
Resources of social landlords:
It was suggested that in some circumstances social landlords have to be prepared to take a more active role of checking on their housing stock. This will, however, remain an issue for district judges to evaluate as the real prospect of a surprise inspection may well be sufficient to suggest there is cogent evidence that the tenancy terms will be complied with in the future on this basis.
Dishonest evidence does not prevent the court from finding cogent grounds:
Giving false evidence may have serious implications, however each case should be considered on its own facts. The judge must be satisfied there is a sound basis for saying the tenant has changed their ways.
Decision to grant an SPO involves two stages:
Involves not just the exercise of discretion, but also the findings of fact on the basis of which discretion is to be exercised.
Reasons for judicial decision:
The principles governing the giving of reasons apply to decisions about SPO’s.
It is anticipated this case will be cited in the majority of ground 12/14 possession claims going forward. It is however important to note that the guidance is only guidance – it is not a test.
Whilst it is hoped that this will provide some consistency in decisions landlords may prefer to opt for a demotion order in similar circumstances, as many of our clients do already. The proceedings can prove to be quicker and therefore more cost effective. Landlords are also reminded about the use of the mandatory ground 7A where a serious offence has been committed in or in the locality of the property.
If the issues in this blog are of interest to you, please contact the housing management team on 02920 660589