Knowsley Housing Trust v McMullen [2006] EWCA Civ 539

[2006] EWCA Civ 539Case No B2/2005/1516
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Platts
4SW01195
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2006
Before
LORD JUSTICE AULDLORD JUSTICE RIXLORD JUSTICE NEUBERGER
Between
KNOWSLEY HOUSING TRUSTClaimant/ RespondentANITA McMULLENDefendant/ Appellant
Mr Jan Luba QC and Mr Robert Askey (instructed by Merseyside Welfare Rights) for AppellantMr Edward Bartley Jones QC and Mr Paul Burns (instructed by Messrs Anthony Collins) for RespondentHearing Hearing dates : March 28 th 2006
JudgmentLord Justice Neuberger :Introduction
[1]This is an appeal, brought with the permission of Jonathan Parker LJ, by Anita McMullen (”the defendant”), acting by her litigation friend, the Official Solicitor, against an order for possession in respect of her home, 173 Fincham Road Huyton, Knowsley, a three bedroom house. The order was made on 17 June 2005, at the suit of her landlord, Knowsley Housing Trust (“the claimant”), by His Honour Judge Platts in the Liverpool County Court. Although he thought it right to make an order for possession in 21 days, the Judge suspended its operation so long as neither the defendant nor any person residing with her caused nuisance or annoyance (“nuisance”) to anyone residing in or visiting the vicinity. The order further provided that, if no application had been made for a warrant for possession before 17 June 2006, the order was to lapse.[2]The claim for possession in this case was based on the contentions that (as was common ground) the defendant was, and had been since 2000, an assured tenant under Housing Act 1988 (“the 1988 Act”), of the house where she had been living with her son, Daniel (who was born on 15 August 1986), and that they had both been guilty of nuisance and of damage to the house.[3]The legal basis for the order for possession was grounds 12, 13 and 14 of Part II of Schedule 2 to the 1988 Act. Ground 12 requires a breach of a covenant in the relevant tenancy agreement to be established. In this case, that ground takes matters no further than grounds 13 and 14, save to establish that any (or at least most) complaints covered by those grounds also represent breaches of covenant by the tenant. Ground 13 refers to the demised premises deteriorating owing to acts of waste on those premises by the tenant or a person residing with her. Ground 14 refers to conduct on the part of the tenant, or a person residing with, or visiting, her “causing or likely to cause a nuisance or annoyance” to neighbours or others lawfully in the locality. By virtue of section 7(4) of the 1988 Act, an order for possession can only be made on any of these grounds if the court considers it reasonable to make such an order.[4]Where the court is contemplating making an order for possession based on ground 14, it is now specifically enjoined by section 9A of the 1988 Act to take into account the past, continuing and future effect the nuisance has had, is having and is likely to have on “persons other than the person against whom the order is sought”. Although section 9A does not apply to these proceedings, as they were started before it came into force, it did not in practice alter the previous approach of the court, at any rate in the great majority of such cases: its effect is to codify and mandate the already existing jurisprudence.[5]By virtue of section 9(1) of the 1988 Act, the court may adjourn any possession proceedings “for such period or periods as it thinks fit”. By section 9(2), where the court makes an order for possession, it may, at any time before the order is executed, stay or suspend the execution of the order. Section 9(3) provides that the court may attach such “conditions as it thinks fit” to any such order for adjournment, stay or suspension, except a condition which would “cause exceptional hardship to the tenant or would otherwise be unreasonable”.[6]At trial the claimant indicated that it would be content with an order for possession whose execution was suspended (a “suspended order”), and the defendant indicated that she would be prepared to submit to such an order. However, as the Judge rightly said, an order for possession could not be simply made by consent, as he had to be satisfied that it would be reasonable to make such an order, and that he otherwise had jurisdiction to make the order. Quite apart from this, there had to be a hearing, because the defendant was only prepared to agree the suspension being on terms which were dependent on her own behaviour, whereas the claimant was contending that the terms should also extend to Daniel’s behaviour. Accordingly, the Judge conducted a hearing at the end of which he gave a full and careful judgment.

The findings of the Judge in summary

[7]The defendant’s own acts of nuisance were relatively slight and historic and the Judge made it clear that he would not have thought it reasonable to make an order for possession if they had been the sole basis of the claim for possession, especially in the light of the defendant’s disability (as described below).[8]The making of an order for possession was, however, justified in the Judge’s view because of the damage to the house (ground 13) and, more importantly I think, because of the nuisance for which Daniel was responsible (ground 14). The case based on ground 13 involved damage to a door and furniture being thrown into the back yard of the house.[9]As to the case under ground 14, in the defendant’s own skeleton argument, Daniel is accurately described as “a recidivist young offender with a string of convictions and a history of relapsing into misconduct”. Evidence was put before the Judge of Daniel’s criminal convictions, an anti-social behaviour order (“ASBO”) made against him, and a large number of other complaints about his behaviour.[10]The convictions were for criminal damage, attempted criminal damage, theft from a motor vehicle, taking and driving away a motor vehicle, theft of a bicycle from a shop, and burglary. Most recently, in December 2004, he was sentenced to a term of 12 months in a Young Offender Institution for theft of a motor vehicle. The ASBO was obtained from the magistrates’ court at the instigation of the claimant in January 2005, while Daniel was detained. It refers to Daniel having acted in an anti-social manner, and causing “harassment alarm or distress” to others. It enjoins him, until 24 July 2007, from causing such harassment alarm or distress, from abusing others, from driving without a licence, and from setting fire to motor vehicles.[11]The many other allegations against Daniel were based on incidents involving nuisance by noise, shouting abuse, intimidation, damage to homes, throwing bricks and iron bars at motor vehicles, setting a motor vehicle alight, and dangerous driving.[12]All these allegations were found by the Judge to have been made out. It appears that they started in 2001 at the latest, and continued until the end of 2004, although there was a brief period of peace for a few months after Daniel was placed under a supervision order in April 2004. There had been no incidents since December 2004, but, as the Judge said, this “coincides with a number of features”. Daniel was detained in December 2004, and, although he was released in April 2005, he had since January 2005 been subject to the ASBO. In addition, there had been other fetters on his conduct, namely that he was released in April 2005 on licence (for a period expiring in April 2006), that he had been on home detention under curfew (the terms of which were due to expire in August 2005), and that he was electronically tagged. I shall refer to these fetters on Daniel’s conduct as “the other restraints”. Further, the area has been cordoned off in such a way as to be no longer so attractive to his associates.[13]The Judge also received evidence in the form of a report from a Dr Kumar, which showed that the defendant had an IQ of 63 and could not read or write beyond the standard of a nine year old. He described her as an “immature and vulnerable person [who] lacks assertiveness skills”. The report stated that she was “unable to discipline or control the actions of her son as he is now a young man of tall and large build”. The report went on to say that “she is not in a position to throw him out of the house for several reasons, including her emotional attachment, need for practical help and support around the house, need for security etc”.[14]The Judge first considered whether grounds for possession were made out. Unsurprisingly, he had no hesitation in deciding that grounds 12, 13 and 14 were satisfied. Secondly, he turned to the argument that he was precluded from making an order for possession by the provisions of the Disability Discrimination Act 1995 (“the 1995 Act”), and decided that he was not. He then addressed the question whether it was reasonable to make an order for possession and decided that it was. Finally, he discussed whether he should suspend the order for possession, and if so on what terms, and decided that he should suspend it on terms that, in effect, there were no further acts of nuisance on the part of the defendant or Daniel. In other words, he adopted the terms of suspension proposed by claimant, and not those advanced by the defendant.

The three questions raised on this appeal

[15]Mr Jan Luba QC, who appears with Mr Robert Askey for the defendant, contends that the Judge ought not to have made the order that he did as : i) The defendant tenant was unable to control her son’s behaviour and was mentally disabled; ii) The son’s behaviour was already effectively controlled, and the neighbours were already sufficiently protected, by the existence and terms of the ASBO and the other restraints; iii) The order for possession can be executed without prior application by the claimant to the court.[16]The first two points are said to support the conclusion that first, the Judge should not have made an order for possession at all or, in the alternative, he should not have suspended the order on the terms that he did. The third point goes to the way in which the order can be enforced.

The effect of the 1995 Act in this case

[17]Section 22(3)(c) of the 1995 Act renders it “unlawful for a person managing any premises to discriminate against a disabled person occupying those premises … by evicting the disabled person or subjecting him to any other detriment”. Section 24(1) provides that “…a person … discriminates against a disabled person if--(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and(b) he cannot show that the treatment in question is justified.” A justification can only satisfy section 24(1)(b) if it falls within section 24(3), paragraph (a) of which refers to the treatment in question being “necessary in order not to endanger the health or safety of any person”. (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified.”[18]The Judge was plainly right to conclude that, in the light of Dr Kumar’s evidence, the defendant was “a disabled person”. Accordingly, in view of the decision of this court in Clark –v- Novacold Ltd [1999] IRLR 318, he held that the test in this case must be whether someone without the defendant’s disability would be able to control her son – see per Mummery LJ at paragraphs 62 to 70.[19]The reasoning in Clark’s case was applied in the housing possession context in North Devon Homes Ltd –v- Brazier [2003] HLR 905. In that case the tenant was guilty of nuisance, but her misbehaviour was attributable to her psychotic state – her “disability” within the 1995 Act. After referring to Clark’s case, David Steel J said at 911, that “on the facts of the present case, the issue is one of fact: whether the breach of the tenancy terms was caused by the disability”. He then held that, as the evidence showed that the tenant “was unable [due to her disability] to prevent herself from behaving in [the objectionable] manner” the 1995 Act was engaged, and the landlord had to establish sufficient justification to satisfy section 24(1)(b) of that Act if an order for possession was to be made. The application of Clark’s case by David Steel J (although not his conclusion on justification) appears to have been approved, or at least referred to with implied approval, by this court in Manchester City Council –v- Romano [2004] HLR 878– see paragraphs 19-21 and 47.[20]In the present case, the Judge, having made it clear that he accepted that the defendant suffered from a disability, went on to consider the contention of the defendant that the disability “relate[d] to” her inability to control her son. He said:
“It seems to me that the defendant’s argument would have merit if the child were much younger so that one would expect there to be some kind of control, but in this case we have Daniel who is now an adult and who, at the time this behaviour was being complained of, was at the age of 16 or 17. I am not satisfied that his behaviour, at that age, is due to or related to the defendant’s disability for the purposes of the 1995 Act.”
That was a finding of fact, which is, quite rightly in my view, no longer challenged by the defendant.[21]The Judge went on, in paragraph 46 of his judgment, to say that, if, contrary to his view, the 1995 Act applied, he still would have thought it right to make an order for possession as it would have been “justified” under section 24(3) of that Act. I can well see, how, in the light of the past severe nuisance, a suspended order for possession, if it was otherwise appropriate, could have been said to be “necessary” to protect the “health [and] safety” of people living in the area. In this connection, since Brazier’s case, close consideration has been given to the meaning of “health or safety” in section 24(3) of the 1995 Act. In paragraphs 69 to 75 of Romano’s case, this court approved the definition of health as being “a state of complete physical, mental and social well-being and not merely the absence of disease and infirmity”.[22]I turn then to the arguments that(i) the order for possession should not have been made because of the inability of the defendant to control Daniel and because of her disability,(ii) the order for possession should not have been made because of the existence of the ASBO and the other restraints, and(iii) that the claimant should not be permitted to apply for the issue of a warrant of possession without making a prior application to the court on notice to the defendant. I shall deal with those three issues in principle and then turn to the facts of this case.

The tenant is unable to control the person causing the nuisance: general discussion

[23]It is clear from the wording of sections 7 and 9 of the 1988 Act and of ground 14 that, as a matter of statutory jurisdiction, the court can make an outright, or a suspended, order for possession against a tenant on the ground that a person living with her has been guilty of nuisance. Any doubt about that is put to rest by the decision of this court in Portsmouth City Council –v- Bryant (2000) 32 HLR 906. It is also clear that there is no express restriction on the making of an order for possession (whether outright or suspended on the good behaviour of the other person) in such a case simply because the tenant, for whatever reason, cannot control that other person’s behaviour.[24]Another decision of this court, Newcastle City Council –v- Morrison (2000) 32 HLR 891 contains a helpful review of the principles applicable to the question whether it is reasonable to make an order for possession against a tenant on grounds of nuisance. Those principles may be summarised as follows. a) When considering reasonableness, the Judge must take account of all relevant circumstances “in a broad common sense way”; b) The interests of neighbours and the obligations of the landlord to those neighbours are relevant in nuisance cases. This has been said to be established by “a long line of authority” as “a very pertinent factor” in Romano’s case at paragraph 19, and it is now specifically enshrined in statute; c) The fact that nuisance has ceased does not ipso facto prevent even an outright order for possession being made; d) Although the tenant’s conduct is a relevant factor, the fact that she has done her best to control the person responsible for the nuisance does not prevent the making of order for possession; e) The fact that there may be an alternative remedy (in that case an injunction) available to the landlord does not of itself justify refusing an order for possession; and f) An appellate court will only interfere with a decision on reasonableness where the Judge has taken an irrelevant factor into account, ignored a relevant factor, or reached a perverse conclusion.[25]These principles have been subsequently applied, for instance in Bryant’s case. In that case, Sedley LJ in an obiter observation, which is relied on by Mr Luba and which troubled

the Judge below, said this at 917:

“It may very well be unreasonable to make even a suspended order against somebody who will be powerless to rectify the situation and it will almost certainly be unreasonable to make an outright order against such a person.”
[26]It is clear that, in a nuisance case, where the court has decided that it is reasonable to make an order for possession, it should then consider whether it might not be right to suspend its operation on terms that the nuisance ceases (as in Bryant’s case, and see also Gallagher –v- Castle Vale Action Trust Ltd (2001) 33 HLR 810). Indeed, the fact that the order can be suspended may well be a factor of relevance in deciding whether to make order for possession at all. It also seems to me clear that the fact that the tenant is not responsible for, and cannot control, the nuisance, and the reason for that inability can, indeed should, be taken into account when considering whether it is reasonable to make an order for possession and, if so, whether to suspend it.[27]However, as I understand that it is often cited in cases where a landlord is seeking possession because of nuisance caused by someone living with the tenant, there are some points I would like to make about the observation of Sedley LJ relied on by Mr Luba. First, far from ruling out a suspended order for possession in such a case, Sedley LJ accepted that such an order would, if the facts of the particular case rendered it reasonable, be appropriate.[28]Secondly, although I sympathise with its basis, I regard the second part of the observation as going further than is justified by principle or authority. It appears to me wrong in principle to rule out an outright order for possession in a case when the 1988 Act clearly contemplates such an order provided that it is reasonable, especially given that reasonableness turns on the particular facts of each case as explained in Morrison’s case.[29]There is nothing in the reasoned judgments of Simon Brown or Staughton LJJ in Bryant’s case to support the second part of Sedley LJ’s observation. Indeed, the thrust of their reasoning is the other way. Thus at 913, Simon Brown LJ said it “would be …quite intolerable if they [i.e. the tenant’s neighbours] were to be held to be necessarily deprived of all possibility of relief in these cases merely because some ineffectual tenant next door was incapable of controlling his or her household” (applied in Morrison’s case at 898 and quoted and applied in Manchester CC v Higgins [2005] EWCA Civ 1423 at paragraph 36). At 920, Staughton LJ said that the requirement of reasonableness before an order for possession can be made “may in a particular case mitigate the hardship which might otherwise ensue from a requirement of strict liability [ie the tenant’s liability for the conduct of those living with her]”.[30]Thirdly, the second part of Sedley LJ’s observation is difficult to reconcile with the decisions of this court in Morrison’s case, in Higgins’s case and in London & Quadrant Housing Trust –v- Root [2005] HLR 439, where the nuisance was caused in part by the tenant’s partner who terrorised her, and whom, it would appear, she could not control– see at paragraph 14.[31]Fourthly, it appears illogical to countenance a suspended order for possession where the suspension is on terms whose breach would lead to execution of the order, if the terms are ones whose breach should not lead to an outright order. It can also be said, at least in many cases, that there is a stronger, not a weaker, case for not suspending an order for possession based on nuisance where the tenant’s point is that she cannot control the nuisance-maker. If reasonableness indicates an order for possession, what, it may be asked, is the point of suspending it, if the tenant is incapable of ensuring compliance? However, there can be some point in suspending in such a case especially if, as here, the nuisance-causer is no longer a child and is related to the tenant. If he is aware that, by continuing the nuisance, he will lose his home, and that the tenant will lose her home, there may be some hope that he will see sense, and behave.[32]In these circumstances, I reject the contention that, in this case, an order for possession, whether outright or suspended, could, or even should, not have been made as a matter of principle, simply because the tenant could not control the activities of the person in her household responsible for the nuisance. It is only fair to Mr Luba to add that he did not put the defendant’s case quite as starkly as this discussion might suggest, but at times his argument got close to suggesting that there might be such a general principle.[33]It seems to me that the fact that the tenant cannot control the nuisance-maker is a factor which would normally assist the tenant in resisting an order for possession in relation to past breaches, especially where she has done her best to stop the nuisance. However, unless the nuisance-maker has vacated, or will shortly vacate, the property, it seems to me to be a factor which may often assist the landlord if he is asking the court to make an outright order for possession or to suspend the order for possession on terms which relate to the behaviour of the nuisance-maker.[34]In some cases, it may well be that a Judge would conclude that it was not open to him to impose the sort of condition on a suspended order which was imposed in this case because (in the light of section 9(3) of the 1988 Act) it would “cause exceptional hardship” to the tenant or would be “otherwise unreasonable” to make suspension of the order conditional on terms compliance with which were beyond the tenant’s control. However, in many such cases, particularly where serious and persistent nuisance had been caused, the only realistic alternative to making a suspended order subject to such a condition would be to make an outright order. Accordingly, it seems to me that, on that basis, it would be hard for the tenant to argue that a suspended order on such terms fell foul of section 9(3).[35]Having made these general points, it is important to emphasise that, when it comes to deciding whether or not it is reasonable to make an order for possession, and whether or not to suspend the order, and, if so, on what terms, the weight to be given to a particular factor, and even the nature of the order indicated by that factor, must, almost by definition, depend on the particular facts of the case in question. In this case, the tenant’s inability to control her son, her need to live with her son, and her mental incapacity were obviously all factors which should have been taken into account when deciding what order to make on the claim for possession.

The effect of the ASBO on making an order for possession: general discussion

[36]The purpose of an ASBO and the purpose of ground 14 overlap to some extent, but they have significant features of difference, in terms of both purpose and procedure. An order for possession enables the landlord and, in many cases, neighbours, to get rid of a troublesome (or worse) individual or household, and a suspended order effectively gives the tenant a last chance to behave, while still affording real protection for the landlord and neighbours. Any breach of the terms of suspension leads to an application for a warrant of possession at the landlord’s option, and, if challenged, has to be established on the balance of probabilities. The purpose of an ASBO is to stop anti-social behaviour, with a criminal sanction attached. The enforcement of an ASBO is a criminal matter, and any breach has to be established by reference to the criminal standard of proof.[37]I can see no intrinsic reason why the existence of an ASBO against the person responsible for the nuisance should prevent the making of an order for possession, whether outright or suspended, based on ground 14. Indeed, it seems to me wrong that there should be some sort of rule or practice that a landlord, who has the benefit of a covenant against nuisance and of a statutory right to possession (if it is established to be reasonable) under ground 14, should be forced to rely on enforcing an ASBO, rather than pursuing its own rights. The two orders are conceptually quite different; further, the order for possession would survive the revocation of the ASBO, and the ASBO would survive notwithstanding the execution, or the reversal, of the order for possession.[38]There are three reported cases to which we have been referred in which an order for possession based on nuisance was made where there was an ASBO in place. None of them casts doubt on the view I have expressed. On the contrary.[39]In Root’s case, the landlord sought a possession order based on the tenant’s partner’s nuisance and sought an ASBO against him. Before the hearing an interim ASBO had been granted which effectively excluded the partner from the demised property, and that appears to have improved the situation (see at paragraphs 8 and 10). The Judge nonetheless made an outright order for possession against the tenant, and a final ASBO against her partner. On appeal, it was submitted on behalf of the tenant that the Judge had erred, and “ought to have considered first whether the ASBO provided appropriate protection and then gone on to consider whether, given the protection of the ASBO, he should nevertheless refuse to suspend the possession order”, on the basis that the ASBO “changed the position radically” – see paragraphs 16 and 19.[40]The Court of Appeal nonetheless upheld the outright possession order, because of the effect of the nuisance on the neighbours and because there had been “a total breakdown in the relationship” due not only to the tenant’s partner’s nuisance but also because of the tenant’s refusal to give access – see per Brooke LJ at paragraphs 27 to 30. However, at paragraph 29, he also expressed the view (with which, at paragraphs 32 and 33, Longmore LJ agreed) that, even on its own, “the shadow of the past was too heavy” (quoting Sedley LJ in Lambeth London Borough Council –v- Howard (2001) 33HLR 58) to prevent an outright order for possession being made in the case.[41]In Higgins’s case, the tenant argued that an outright order for possession should not be granted because there was an ASBO in force which was enough to restrain the nuisance. Ward LJ, in paragraph 35, suggested that the existence of an ASBO which had “served its purpose” might justify a suspended order (implicitly where an outright order would otherwise be made). In paragraph 36, he said that “if the misconduct by a tenant or even by a member of the household were serious and persistent enough to justify an ASBO then that will be strong but not conclusive evidence that the tenant will have forfeited his entitlement to retain possession”. However, as Mr Luba points out, that was said in a case where the ASBO had been breached – see paragraph 42.[42]There was also an ASBO in place in Moat Housing Group–South Ltd –v- Harris 2005 HLR 512, but it played no relevant part in relation to the order for possession, not least because the Court of Appeal discharged it.[43]I would therefore reject, on the basis of principle, practice and authority, the notion that, in a case where the landlord relies on ground 14, the court should not make an order for possession, whether suspended or otherwise, simply because it can be said that the person responsible for the acts of nuisance is subject to an ASBO which is, in effect, directed to preventing the same sort of acts. However, I accept that, as a matter of principle, and, in the light of Ward LJ’s observations, on the basis of authority, the existence of an ASBO can be a relevant matter when the court is deciding whether it is reasonable to make an order for possession, and whether to suspend it.[44]The existence of an ASBO may be of particular assistance to the tenant (especially in resisting an outright order for possession) where, as here, the person responsible for the nuisance is not the tenant, and the tenant cannot control the behaviour of that person.[45]The existence of the ASBO may thus justify suspending the order for possession when the court would otherwise have made an outright order, and, in some cases, it might, I suppose, justify dismissing the claim for possession, although in most cases where the nuisance has been grave enough to justify an ASBO, merely dismissing the claim for possession might well be difficult to reconcile with what Mr Luba conveniently called community protection, now statutorily enshrined in s 9A of the 1988 Act. As Mr Luba also says, the existence of an ASBO may persuade the court, in an appropriate case, to exercise its power under section 9(1) of the 1988 Act to adjourn the claim for possession, to see whether the ASBO prevents any further nuisance, as an alternative to hearing the claim.[46]Once again, it is important to emphasise that the weight to be given to the existence of an ASBO and the nature of the order it indicates must inevitably turn on the particular facts of the case in question.[47]The same considerations which I have discussed in relation to an ASBO would obviously apply to the other restraints in this case, namely, the licence and the curfew order.

The power to seek a warrant without applying to the court: general discussion

[48]It cannot be argued that the Judge had no jurisdiction in principle to make a suspended order which entitled the claimant to apply for a warrant without first applying on notice (or otherwise) if the terms of the suspension were infringed. In Southwark London Borough Council v St Brice [2002] 1 WLR 1537, a suspended order for possession on such terms was held to be valid notwithstanding articles 6, 14 and 18 of the ECHR. In that case the order for possession and the terms of suspension were related to payment of rent, but that makes no difference to the principle. At paragraph 19, Kennedy LJ stated that “the routine enforcement of court orders …should not normally entail a separate hearing” and the need for “court administration [to be] flexible and efficient”. To much the same effect, Rix LJ observed at paragraph 40 that “An efficient procedure for routine execution of the court’s orders is in the public interest”.[49]There is plainly nothing in St Brice’s case which forbids a suspended order for possession in any case from requiring the claimant to apply for permission from the court before obtaining a warrant of possession. Each case must turn on its own facts. Nonetheless, as Mr Edward Bartley Jones QC, who appears with Mr Paul Burns for the claimant, says, when the court is invited to include such a term, two factors should be borne in mind. The first is the principle identified in the two observations I have quoted from St Brice’s case, namely the need for the efficient administration of justice. The second is the fact that, where a claimant has applied for a warrant, the defendant will, or at least should, receive notice of the issue, so that she will have the means of bringing the question of the execution before the court, and under section 9(2) of the 1988 Act the court could then stay or further suspend the execution of the order.

The suspended order for possession in this case

[50]In this case, a person still living with the tenant had been guilty of numerous and very serious acts of nuisance, which had led to a number of convictions, including a term of imprisonment, and an ASBO, and which must have caused significant upset, annoyance, even fear, to many neighbours, over a long period, albeit that there had been a period of two months peace since he left prison (bearing in mind that there had been a temporary period of peace before).[51]One can well understand the Judge’s decision that it was therefore reasonable to make an order for possession. Indeed, to have refused an order for possession, that is, effectively to have dismissed the claim, would have been, at least arguably, so outside the admittedly wide range of the Judge’s powers as to have been perverse, even taking into account the difficulties of the defendant. That view is based on the seriousness and frequency of the acts of nuisance, the long period over which they had occurred, the interests of the long-suffering and scared neighbours, the message a dismissal of the claim would send to Daniel and even the defendant, and the fact that any order for possession could be suspended.[52]It is said that the Judge did not properly consider whether it was reasonable to make an order for possession. It is true that his reasons for making an order for possession were relatively briefly expressed, namely that it was reasonable to make an order in the light of “Daniel’s behaviour” and the fact that the damage to the house was “quite serious”, and that it was common ground that such an order should be made. However, the Judge had fully considered, and obviously had well in mind, the nature of Daniel’s behaviour and its effect on neighbours, and the apparent effect of the ASBO and the other restraints, when fully setting out the facts, and had discussed the defendant’s disability and her consequent inability to control him when considering the impact of the 1995 Act. Furthermore, while not of course decisive, it was, as the Judge said, common ground that an order for possession should be made, and indeed that the order should be suspended.[53]In this latter connection, the Judge rightly approached the case on the basis that he had to decide three questions in turn (after that arising under the 1995 Act). They were:(i) whether one or more statutory grounds for possession had been established, and, if so(ii) whether it was reasonable to make an order for possession, and, if so,(iii) whether to suspend that order, and, if so, on what terms. However, it seems to me that, in some cases, the second and third questions are not unconnected, in that the Judge may think it reasonable to make an order under (ii) only if it can be suspended on satisfactory terms under (iii).[54]In the present case, where it was agreed that a suspended order was appropriate, it is scarcely surprising that, having already set out the relevant facts in careful detail, the Judge devoted much more of his judgment to the terms of the suspension than to the question of reasonableness. Accordingly, I do not consider that the Judge can in any way be criticised for the relatively brief way he expressly dealt with the question of reasonableness.[55]It was also pointed out by Mr Luba that the Judge could have adjourned the case under section 9(1) of the 1988 Act, with a view to seeing whether the ASBO and the other restraints on Daniel’s behaviour continued to have their alleged effect of stopping the nuisance. The Judge was not invited to take that course, and, if he had been, he would have been acting well within his powers if he had refused an adjournment. I therefore consider that this is not a point which is worth taking further, save to mention that, if he had adjourned the case, it would either have left the claim entirely in the air or the adjournment would have been on terms that there were no further acts of nuisance. The former order would have left all concerned in a state of uncertainty; the latter order would have had the same effect as that of the order he made, save that it would have had no teeth.[56]The remaining options open to the Judge were an outright order for possession, an order for possession suspended on terms that the defendant causes no nuisance, and an order for possession suspended on terms that neither Daniel nor the defendant cause nuisance. The first option would have been harsh in the light of the attitude of the claimant (and the defendant), the inability of the defendant to control Daniel, the defendant’s disability, and the recent period of peace, and it was rejected by the Judge. He thought, quite understandably in the light of the circumstances to which I have referred that it would not have been “a proper order to make on the evidence I have heard”.[57]Accordingly, the choice facing him was whether or not to make the terms of suspension dependent on Daniel’s behaviour. In that connection, it was, in my view, to put it at its lowest, a rational and proper, indeed a proportionate, exercise of the Judge’s powers to have made the suspension of the order dependent on Daniel’s good behaviour, as well as that of the defendant.[58]First, having decided that Daniel’s behaviour, but not that of the defendant, justified an order for possession, it would have been a little odd or even, to use the Judge’s expression, “wholly inconsistent” to suspend the order on terms that the defendant, but not Daniel caused no further nuisance. Secondly, when one considers the seriousness and duration of Daniel’s conduct and the effect that it must have had on others, it seems to me that the Judge was amply justified in concluding that it was reasonable to make such an order for possession.[59]Indeed, in light of the frequency and seriousness of the acts of nuisance, the existence of the ASBO, the effect of the past nuisance on neighbours, and the effect on them of dismissing the claim, I find it a little difficult to accept that the Judge could have reached any other conclusion, even bearing in mind the unfortunate circumstances of the defendant. It is not as if those circumstances were not taken into account by the Judge, or indeed the claimant. There must be a strong possibility that, had the defendant not suffered from a disability, the claimant would have sought, and the Judge would have granted, an outright order for possession. Certainly, the Judge would have had much more difficulty than he did in deciding to suspend the order.[60]The defendant raised a number of specific arguments as to why the Judge should not make the order that he did, and some of those arguments have been repeated before us. First, it was said that Daniel’s behaviour had improved since he was let out of prison. It seems to me that there were two answers to that. The first is that there were no guarantees that that state of affairs would continue. The period of peace had been only two months since his release from prison, and there had been a previous period of improvement in 2004, which had proved only temporary, and had ended with an act of nuisance, which was sufficiently grave to justify Daniel being detained.[61]Secondly, if Daniel really had improved so that there would be no further act of nuisance, then the defendant would not lose her house as a result of the suspended order for possession: the suspension would apply until the order for possession expired pursuant to its terms. It is true that there might be one or two minor and isolated acts of nuisance on the part of Daniel, which could result in the suspension being lifted, and the order for possession being enforced, which could be said to be harsh on the defendant, and indeed on Daniel. However, the answer to that point lies in the fact that, even if the form of order made by the Judge stands, and the claimant applied for a warrant for possession, it would be open to the defendant to apply for the warrant to be set aside because there had been no further acts of nuisance, or for the terms of suspension in the original order to be varied or for the warrant itself to be stayed on terms – see e.g. per Kennedy LJ in St Brice’s case at paragraph 14.[62]The defendant thirdly argued that the claimant was partly to blame because it should have acted earlier in alerting the local authority’s social services to the plight of the defendant. While accepting that the claimant could have acted more promptly in this connection, the Judge held that it was not a sufficient reason for making a different order in these proceedings from that which he would otherwise have made. That seems to me to have been a view which he was plainly entitled to take.[63]Fourthly, and most strongly, Mr Luba argues that it was simply inappropriate, on the facts of this case, to suspend the order on terms which related to Daniel’s behaviour. To put the defendant tenant’s home at the mercy of Daniel’s conduct, he said, was unreasonable when she could not control Daniel, and when she needed Daniel living with her, especially in the light of her mental impairment. I accept that, from her viewpoint, such an order may look harsh. However, the interests of the claimant landlord and of the neighbours have to be taken into account also, and, from their viewpoint, an order suspended on the terms he thought appropriate was, in the Judge’s opinion, requisite. In the light of the history of Daniel’s past acts of nuisance and the risks of recurrence in the future, it is not sensibly possible to quarrel with that conclusion.[64]Finally, it is said that the Judge’s sole stated reason for suspending the order “is to send a message to the tenant that …if there is no further repetition of the behaviour … then the order will not be enforced against you”, and that this(a) ignores the fact that the defendant cannot control Daniel, and(b) demonstates that the Judge was not basing his decision on the effect of the nuisance on the neighbours. I reject both contentions. As to (a), there are two points. First, the Judge was discussing the purpose of suspension generally, as the sentence concerned began with the words “The whole purpose …. of suspending an order for possession” (emphasis added). Secondly, the message was also clearly for Daniel, as well as for the defendant. So far as (b) is concerned, it appears to me fanciful to suppose that the Judge did not have the interests of the neighbours firmly in, indeed in the forefront of, his mind, when discussing nuisance, especially in view of the full discussion in his judgment of the facts of this case.[65]Accordingly, I would reject the arguments advanced against the Judge’s decision to make an order for possession suspended on the terms that he did. However, where I consider that the appeal is on stronger ground is in the complaint that, on the facts of this case, the claimant should not be entitled to apply for a warrant without first applying on notice to the court for permission to do so. I would not want to detract from the principle established in St Brice’s case even if I could do so, and I am equally anxious not to undermine the well-founded observations of Kennedy and Rix LJJ, quoted above, as to the appropriate course in the normal run of cases. Normally, a suspended order for possession should not include a term that the landlord should have to apply to the court for permission before applying for a warrant. However, as I have emphasised more than once, the appropriate order in a particular case must depend on the facts of that case, and, accordingly, in some exceptional cases, such a term may be justified.[66]In this case, it seems to me that the facts do require such a term to be included in the order. First and foremost, there is the defendant’s disability. That renders the defendant peculiarly deserving of the protection of the court. Although the ability of the claimant to apply for a warrant without the court’s permission does not mean that the defendant cannot seek a stay, suspension or discharge of the warrant, it does put the onus on her to apply to the court for that purpose. With her disability and with the involvement of the Official Solicitor, there is greater room for unfairness to her, and of an administrative oversight, than in the case of a normal tenant. Secondly, and perhaps less significantly, there is the ASBO (and the other restraints on Daniel’s activities); their existence and subsequent enforcement as a result of any subsequent acts of nuisance may justify refusing execution of the order for possession. Thirdly, in two reported cases involving suspended orders for possession against tenants subject to a disability under the DDA, the landlords had to apply to the court before being entitled to obtain a warrant– see Gallagher’s case at paragraphs 37 and 60, and (as a matter of inference) Romano’s case at paragraphs 6 and 76.

Conclusion

[67]In these circumstances, I would dismiss this appeal, save that I would amend the order made by the Judge so that, in the event of the claimant wishing to apply for a warrant of possession, it shall first apply to the court, on notice to the defendant and her litigation friend, the Official Solicitor, for permission to do so. I would be prepared to hear counsel on the appropriate period of notice, but I would have thought that the period of notice should be around 14 days, save in the case of emergency. Lord Justice Rix[68]I agree. Lord Justice Auld[69]I also agree.

Cited in 1 later judgment