When to suspend a possession order

City West Housing Trust v Lindsey Massey, Manchester and District Housing Association v Roberts [2016] EWCA Civ 704, 7 July 2016

In these conjoined appeals the Court of Appeal gave guidance on the approach to be taken by county court judges in deciding whether to suspend a possession order in cases involving anti-social behaviour in breach of tenancy. In both cases the police had discovered that cannabis was being cultivated in the property. In both cases the tenants claimed not to have known and argued that they were not responsible. In both cases their accounts were rejected.

Arden LJ, with whom Floyd and Sales LJJ agreed, gave the following guidance at [47]-[62]:

• To justify suspending a possession order, there must be cogent evidence that there is a sound basis for hope that the previous conduct will cease: a judgment about the future.
• To be ‘cogent’, the evidence must be more than simply credible: it must be persuasive, though the tenant does not have to give a ‘cast-iron guarantee’.
• The evidence required does not necessarily need to stem solely from the tenant. For example support provided from a third party for a tenant with mental health problems would be relevant. Likewise, ‘the inclusion of an inspection condition in a SPO might provide support for an assessment that the tenant will comply in future’.
• In deciding whether an inspection condition would be reasonable, a judge should have regard to the resources of the social landlord.
• Dishonesty in a tenant’s evidence does not prevent the court from finding cogent grounds. Though tenants should realise that if they lie in their evidence to the court they run the risk that the court will find that their evidence is not to be trusted on other matters and that the court will not accept assurances from them for the future.
• The decision to grant or not to grant an SPO involves two stages. An application for a suspension involves not just the exercise of discretion but also the making of findings of fact on the basis of which the discretion is to be exercised. The tenant should normally give evidence in court so that the court can assess his credibility.
• In deciding whether to suspend the possession order factors such as cooperation with housing authorities and prosecuting authorities, honesty and full disclosure of previous inappropriate behaviour, genuine remorse, early acceptance of culpability may be matters which a court wishes to consider in any individual case. But this is not an immutable checklist which a court should adhere to slavishly.
• The judge must give sufficient reasons to adequately explain why one party has lost and the other has won.
• An appellate court will be slow to hold that a trial judge who referred to a point at one stage in his judgment but not when he came to exercise his discretion had therefore failed to give adequate reasons for the exercise of discretion.

Click here for the judgment.