Bristol City Council v Hassan & Anor [2006] EWCA Civ 656

Case No B2/2006/0853 AND B2/2006/0854[2006] EWCA Civ 656
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE BRISTOL COUNTY COURT
District Judge Exton
District Judge Frenkel
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 23 May 2006
Before
LORD JUSTICE BROOKE,Vice-President, Court of Appeal (Civil Division)LORD JUSTICE DYSONLORD JUSTICE JACOB
Between
Bristol City CouncilAppellantMohamud HassanClaimant& AnrClaimantBristol City Council and Mohamud Hassan& Anr Claimant/Respondent Defendant/First Appellant- and between -Bristol City Council and Jane Glastonbury Claimant/Respondent Defendant/Second Appellant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Jan Luba QC and Robert Latham (instructed by South West Law) for AppellantsKelvin Rutledge and Genevieve Screeche-Powell (instructed by Bristol City Council Legal Services) for Respondent
Judgment
[1]These two appeals from orders made by District Judge Exton and District Judge Frenkel in the Bristol County Court in January and February of this year have been transferred for hearing to this court because they raise issues which are at present perplexing housing law practitioners and the judiciary in county courts up and down the country.[2]The problem arises in this way. When a court decides that a local authority landlord has established that statutory grounds for making a possession order exist and that it is reasonable to make such an order, the standard form currently in use in the county courts has the effect of terminating the tenant’s secure tenancy on the date set out on the face of the order. If the court also directs that the possession order is not to be enforced so long as the tenant complies with requirements set out in the order, the tenant enjoys the status of a “tolerated trespasser”, and not of a secure tenant, so long as he remains in possession of the premises after the date for giving possession has passed. This is the effect of the recent decision of this court in Harlow District Council v Hall [2006] EWCA Civ 156.[3]The standard form to which we have referred is Form N28. We have set out its salient provisions in Appendix One to this judgment. It is not obligatory for the court to use this form in any given case. Section 74A of the County Courts Act 1984 empowered the Lord Chancellor to make or to approve directions as to the practice and procedure of county courts, and CPR Part 4 and its practice direction deal with court forms in a very general way. In the present context Form N28 appears in the table that heads para 3.1 of that practice direction under the general description of a form “required by CPR 1-75”. CPR 4, for its part, provides:
“(1) The forms set out in a Practice Direction shall be used in the cases to which they apply. (2) A form may be varied by the court or a party if the variation is required by the circumstances of a particular case.”
[4]Although the current version of Form N28 was introduced in 2001 at the same time as CPR Part 55 (which provides generally for practice and procedure in connection with possession proceedings) came into effect, there is no reference to Form N28 (or indeed to any other prescribed form) in CPR Part 55. At best, therefore, it should be treated as the form to be used when a court wishes to make a possession order that is postponed to a fixed date but to suspend its execution so long as certain requirements are fulfilled.[5]This, however, is not the only order a court may make if it decides that a local authority landlord has established that statutory grounds for making a possession order exist and that it is reasonable to make such an order. The relevant statutory provisions are to be found in section 82(2) and 85 of the Housing Act 1985, the terms of which are set out in Appendix Two to this judgment. By the combined effect of those two sections, the tenant’s secure tenancy will end on the date on which the tenant is to give up possession in pursuance of the possession order (s 82(2)), and the court on making the possession order has the power to postpone the date of possession for such period or periods as it thinks fit (s 85(2)(b)). On such a postponement the court must impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent unless it considers that one of the criteria identified in s 85(3)(a) is satisfied, and it may also impose such other conditions as it thinks fit (s 85(3)(b)). By s 85(4), if the conditions are complied with the court may, if it thinks fit, discharge or rescind the order for possession.[6]The facts of the two cases with which we are concerned are fairly typical. Mr Hassan and Mr Abdillahi were the Bristol City Council’s (“the council’s”) joint secure tenants of premises in Barton Hill, Bristol. Mr Abdillahi went off to Denmark, and because he was responsible for paying half the rent, arrears accumulated following his departure to the extent that they amounted to £1,628.61 at the date of the hearing on 9th January 2006. The full current net rent was now being paid by the housing benefit authorities, but a weekly payment of £4.77 was due from Mr Hassan in respect of a heating charge. The council sought a suspended possession order on terms that Mr Hassan, who was in receipt of benefits, continued to pay this sum and also instalments of £2.85 towards the arrears, this being the standard sum for a tenant on benefits. There was no dispute that a possession order could be made, or that it was other than reasonable to make an order. What had to be resolved at the hearing was the form of the order the court should make.[7]Ms Glastonbury was the council’s secure tenant of an 11th floor flat in Dove Street, Bristol. Her problems arose after payment of housing benefit ceased on 11th April 2005. At that time her account was £60 in credit. Because she received income support she was entitled to housing benefit, but she failed to provide information required by the council’s verification procedures, and this led to her housing benefit being stopped. It was reinstated on 5th September 2005, and the possession proceedings were originally adjourned twice to see whether payments of housing benefit could be backdated to cover the gap between April and September 2005. Eventually the housing benefit authorities decided not to take this course. At the time of the hearing before District Judge Frenkel on 13th February 2006 the rent arrears were £885.13. The housing benefit authorities were paying the full current rent, and since 10th January 2006 the Department of Work and Pensions (“DWP”) had been deducting £2.85 per week at source from Ms Glastonbury’s other benefits and paying them directly to the council four weeks in arrears. The council’s final stance at the hearing was that it asked the court to make a possession order suspended on terms that Ms Glastonbury paid £2.85 per week towards the arrears.[8]The solicitor advocate who appeared for both these tenants did not oppose the granting of a possession order on the proposed conditions. He contended, however, that no date for possession should be fixed. He suggested that an order should be made in these terms: 1. The Claimant is entitled to possession described in the Claim Form. 2. The Defendant do deliver to the Claimant possession of the premises on a date to be fixed on application by the Claimant. 3. The Claimant shall not be entitled to apply for an Order fixing the date for possession and termination of the Defendant’s tenancy for so long as the Defendant: pays the current rent as it falls due in accordance with the terms of the tenancy agreement and in addition discharges arrears amounting to £ as at the date of this Order by monthly instalments of £ . 4. Any application to fix the date on which the Defendant is to give up possession shall be made to the District Judge in private on 7 days notice to the Defendant. 5. There be no Order as to costs.[9]In the first of these cases District Judge Exton said that her colleagues in Bristol, and other colleagues nationwide, took the view that a court could not make an order in these terms, because they were required to fix a date for possession on the face of their order. In the second case District Judge Frenkel, after hearing argument, said that he was going to make an N28 order, and that he was not going to change the usual practice of the court unless there was a successful appeal. A particular feature of the second case was that it was apparently accepted that the flat was unsuitable for one of the defendant’s sons, and that it would be problematic whether a mutual exchange of tenancies with another council tenant could be achieved if the defendant was reduced to the status of a “tolerated trespasser”.[10]The first issue we have to decide is whether the district judges’ belief that a date for possession had to appear on the face of their orders was soundly based. If it was not, then we have to go on to consider whether variant forms of order which we were shown could lawfully be made. We were told that following the decision in Harlow DC v Hall on 28th February 2006 the Department for Constitutional Affairs appointed a working party, which includes two experienced judges, to advise on the alternative form(s) of order template the courts should adopt in those cases in which the judge making a possession order against a secure tenant did not wish the tenancy to terminate so long as the conditions set out in the order were fulfilled. The working party is understandably anxious to consider our judgment in this case. In the meantime the courts have been advised to delete paragraph 5 and to substitute a new paragraph 1 in Form N28 (for which see Appendix One):
“1. The defendant give the claimant possession of (address of the property) on or before (date) provided that the date for possession will be postponed and the defendant’s tenancy of the premises will continue, so long as the defendant pays the claimant the current rent and in addition the rent arrears and costs by the instalments set out below.”
The title of the order was also to be changed from “Order for possession (rented premises) (suspended)” to “Order for possession (rented premises) postponed”.[11]At the hearing of the appeal Mr Rutledge, who appeared for the council, submitted that a court could not lawfully make an order in this form. Mr Luba QC, who appeared for the appellants, maintained that it could, although for reasons which we will explain later in this judgment, he proffered a more sophisticated form of order for our consideration.[12]The judgment of Lord Denning MR in McPhail v Persons Unknown [1973] 1 Ch 447 contains a scholarly analysis of the history of possession orders at pp 457-8. In short, although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court and obtain an order that he “do recover” the land, and to issue a writ of possession immediately. The sheriff would execute the writ, although once the owner had obtained his order he was entitled to take possession at once by his own hand. Because he could lawfully take possession at once without the help of the court, the courts of common law never suspended the order for possession. Lord Denning added that he was also satisfied that a court of equity would never intervene in aid of someone wrongfully in possession of land so as to suspend an order for possession. Under the Supreme Court of Judicature Act 1875 the old action of ejectment was replaced by an action for the recovery of land, but the practice remained the same. The judgment, as before, was that the plaintiff “do recover” possession. No time was mentioned, and no date given, and the plaintiff could at once issue a writ of possession which could be executed immediately.[13]When Lord Denning came, at pp 458-460, to consider the position of tenants, he said that an owner of land was obliged to obtain an order for possession if he was to avoid being charged with the offence of forcible entry. This position was at that time regularised by s 32(1) of the Rent Act 1965. Lord Denning continued (at p 459c): “Seeing that in the case of a tenancy the owner is not entitled to regain possession himself by his own self-help, and that he is bound to come to the court to recover possession, it follows that the courts are able to fix a date on which possession shall be recovered. At any rate, the House of Lords has proceeded on that assumption (see J. & F. Stone Lighting and Radio Ltd. v. Levitt [1947] A.C. 209, 216); and Parliament has done likewise. Thus in section 138 of the County Courts Act 1888, Parliament said that at the end of a tenancy the judge may order possession to be given" either forthwith or on or before such day as the judge shall think fit to name; ..." That section was repealed by the County Courts Act 1934 and replaced by a simple provision in section 48 that "A county court shall have jurisdiction to hear and determine any action for the recovery of land ..." But the Act of 1934 was a consolidating Act. It did not alter the previous law. It certainly did not take away the power given by section 138 of the Act of 1888. It proceeded on the assumption that at the end of a tenancy a court has power to fix a date on or before which possession should be given. All the textbook writers, without exception, say that the county court has this power. Likewise in the Protection from Eviction Act 1964, Parliament in section 2 (1) said that when the court made an order for possession by the owner against the occupier: "...the court may suspend the execution of the order for such period, not exceeding 12 months from the date of the order, as the court thinks reasonable." That section was repealed by the Rent Act 1965 [section 52 and Schedule 7, Part 1], but Parliament cannot thereby have intended to take away the power of the court at the end of a tenancy to suspend the execution of its order. It simply left intact its previous power. If the county court has the power at the end of the tenancy to fix a date, then the High Court must have the like power. The County Courts Acts have always provided for the transfer of actions from the county court to the High Court, and vice versa, as for instance sections 49 and 50 of the County Courts Act 1959. It cannot be that, on such a transfer, the High Court has less power than the county court. In my opinion, therefore, when a tenancy has come to an end, the landlord is not entitled to take possession except by an order of the court: and, on making the order, the court has power to fix a date for possession.” "...the court may suspend the execution of the order for such period, not exceeding 12 months from the date of the order, as the court thinks reasonable."[14]Lord Denning went on to say (at p 460A) that the way in which the power was to be exercised was a matter for the discretion of the court, but in the ordinary way, where the defendant had no statutory right to remain, the usual order was from four to six weeks.[15]It followed from this analysis that, whereas as against squatters owners of land who obtained an order for possession were entitled to enforce it immediately, in the case of a former tenant the courts had a power (but not a duty) to fix a date for possession, thereby postponing the effect of the order, although courts would not in practice postpone the effect of the order for a period longer than six weeks.[16]These, then, were the general rules, largely untrammelled by statute. In the present case, however, the courts’ powers are identified by statute, and the resolution of the first issue we have to decide depends on the proper interpretation of section 85 of the Housing Act 1985 (for which see Appendix Two).[17]A similar statutory scheme was also to be found in the Rent Acts, with the important difference that once the original contractual tenancy had ended a statutory Rent Act tenant would retain the status of statutory tenant until possession was actually obtained: that scheme contained nothing similar to section 82(2) of the Housing Act 1985 (see Appendix Two) whereby the tenant’s secure tenancy ended on the date on which the tenant was to give up possession in pursuance of the order, and not on the date of actual possession.[18]In AmericanEconomic Laundry Ltd v Little [1950] 2 All ER 1186 an unconditional order for possession was made against a statutory tenant, and execution of the order was then suspended by the court from time to time pursuant to powers contained in s 5(2) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. Somervell LJ distinguished at p 1189H two different forms of order which might be made under those powers: i) (As in the Little case) an absolute order, the execution of which is suspended; ii) A conditional order. When a conditional order is made, Somervell LJ said that the order for possession did not become “operative” so long as certain conditions were fulfilled. These conditions might relate to payment of rent or the abatement of a nuisance.[19]In Sherrin v Brand [1956] 1 QB 403, another case involving a Rent Act statutory tenant, the county court judge had made a consent order in Form 138 in the appendix to the County Court Rules. Its salient terms were:
“It is adjudged that the plaintiff do recover against the defendant possession of the land. ... It is ordered that the judgment for possession shall not be enforced for 28 days and for so long thereafter as the defendant punctually pays the plaintiff...the arrears of rent, mesne profits and costs by instalments of £10 forthwith and 13s 7d per week in addition to the current rent... And it is further ordered that the judgment shall cease to be enforceable when the arrears of rent, mesne profits and costs referred to above are satisfied.”
A question then arose as to the status of the tenancy after the tenant had fallen into arrears under this order but the landlord had taken no steps to enforce the order before the tenant died.[20]Sir Raymond Evershed MR interpreted the consent order (at p 411) as meaning that the tenant was to remain on as tenant subject to the added obligation that he had to pay off the arrears by instalments “and subject also to this, that if default was made, the plaintiff could then take the appropriate steps mentioned by getting a warrant to execute the order without further or separate proceedings.”[21]In that case the court was concerned with the powers contained in section 4(2) of the Rent Restriction Act 1923, which are set out at pp 412-3 and are in terms remarkably similar, although differently arranged, to those now appearing in s 85 of the 1985 Act. At p 413 the Master of the Rolls said authoritatively:
“It is always within the jurisdiction of the court, in my judgment (assuming that the conditions for the exercise of the jurisdiction have arisen) to make an order for possession, but to postpone the effectiveness of the order by making the continued occupation of the tenant conditional, for example, on his paying arrears of rent and costs in such manner as is provided by the order - such a provision being within the language which I have read from section 4 (2) - or to postpone the date of possession for such period or periods as it thinks fit, and subject to such conditions, in regard to payment by the tenant of arrears of rent and otherwise, as the court thinks fit. That indeed is, as I think, plainly the effect of the order of December 2, 1953; and, if that is the effect of the order, it certainly does not necessarily involve the result (as I read section 15 (1)) that, during the period of the postponement of possession, the so-called statutory tenancy ceases altogether, and the tenant wholly ceases to have the protection of the Act.”
[22]Birkett LJ, for his part, placed stress at p 424 on the extremely wide powers conferred on the county court

judge by s 4(2) of the 1923 Act:

“[T]he widest possible discretion is given to the county court judge, and one can understand why it is done. He is told: ‘You can postpone possession if the facts warrant it; you can postpone the date for possession for such time as you think proper; and, moreover, you can lay down such conditions as you think proper.’ Then at the end of the section come the all-important words: ‘and, if such conditions are complied with, the court may, if it thinks fit, discharge or rescind any such order or judgment.’ What the Act of Parliament was clearly intending to do was to invest the county court judge with the widest possible powers, because of the infinite variety of circumstances in which people are placed in regard to their housing, and in which they are compelled to go to the county court either as landlords or as tenants. The statute says: ‘You can adjourn it if you wish when the facts are such that, if you do adjourn it, that may be an end of the whole matter. If the facts indicate that it is the proper thing to do, you may make an order for possession. If it is a reasonable thing to do, make it. It is quite true that you may suspend the order’ - and, as the county court judge pointed out, during that period of suspension, there may be any number of applications to the court for a suspension of the order; that, at any rate, is in a category by itself. Then the third matter is the wide discretion vested in the court for postponing the date of possession as it thinks fit for such period as it thinks fit and on such terms as it thinks fit; and if those conditions are fulfilled, the court may also, if it thinks fit, discharge the order altogether.”
[23]The Housing Act 1980 introduced for the first time the concept of a statutory secure tenancy enjoyed by the tenant of a local authority landlord (and, originally, the tenants of other social landlords as well), and its terms are now to be found in the Housing Act 1985, which was a consolidation Act. What is now s 82(2) of the 1985 Act formed part of that scheme from the outset, and in Thompson v Elmbridge BC [1987] 1 WLR 1425 this court identified an important respect in which this scheme was different from the Rent Act scheme.[24]In that case a local authority had obtained a possession order in the then current terms of prescribed form N28. Its salient provisions were:
“It is adjudged that the plaintiff do recover against the defendant possession of the [identified] land. ... It is ordered that the judgment for possession shall not be enforced for 28 days in any event, and for so long thereafter as the defendant punctually pays ... [the arrears of rent...and] costs by instalments of £10 per week in addition to the current rent. And also that the judgment shall cease to be enforceable when the [arrears of rent ...and] costs referred to above are satisfied.”
[25]Russell LJ (with whom Sir Denys Buckley agreed) commented at p 1428G:
“It is to be observed that on the face of the order it does not purport to terminate the tenancy. The tenancy, in my judgment, plainly continues and is recognised by the order as continuing. The judgment for possession, however, is suspended so long as the current rent is paid in addition to the arrears. If that were not the true interpretation of the order, then plainly the words ‘the current rent’ to which I have adverted, would not appear as they do.”
He went on to hold, however, (at pp 1430H – 1431A), that “[O]nce the defendant in proceedings of this kind where there is a suspended order for possession, ceases to comply with the conditions of the order, namely, ‘the punctual payment of the current rent and arrears,’ and there is a breach of the terms of the order, the tenancy, whatever it may be, from that moment comes to an end.”[26]The decision in Thompson v Elmbridge BC led to a certain amount of disquiet (see, for instance, Jim Driscoll, Rent Arrears, Suspended Possession Orders and the Rights of Secure Tenants (1988) 51 MLR 371 and an authoritative suggestion for different wording for a suspended possession order (Judge John Platt and Nic Madge, Suspended Possession Orders (1991) NLJ 853)). However, the revised version of Form N28 that was issued in 1993 did not adopt this suggestion. Instead, it was in these “user-friendly” terms:
“1. The court has decided unless you make the payments as set out in paragraph 2 you must give the plaintiff possession of (premises) on...[insert date]. ... 3. You must pay the plaintiff the total of £ by instalments of £ per ... in addition to the current rent. When you have paid the total amount mentioned, the plaintiff will not be able to take any steps to evict you as a result of this order. 4. If you do not pay the money owed and costs by the dates given and the current rent, the plaintiff can ask the court bailiff to evict you and remove your goods to obtain payment.”
This was followed by the 2001 revision (for which see Appendix One).[27]Although the 1993 version of Form N28 could reasonably be interpreted as postponing possession after the date mentioned in para 1 so long as the tenant complied with the condition set out in the order, the stark language of the 2001 revision permitted no such interpretation. Possession was postponed until the date fixed in para 1 and the tenancy would then come to an end through the operation of s 82(2). Thereafter execution of the order would be suspended so long as the conditions set out in the order were complied with: see the judgment of Sir Andrew Morritt C in Harlow DC v Hall at para 13. “In my view the Possession Order and its effect is clear. Paragraph 1 of the order required Mr Hall to give possession on 9th February 2005. As the order was made on 12th January 2005 it was suspended in the sense that it was to take effect on a specified future date, but the obligation to give possession on or before 9th February was not qualified by the postponement of its enforcement in the event of compliance with paragraph 5. The distinction between suspending the execution of the order and postponing the date for possession is also made in s.85(2). Accordingly it is, in my view, plain that the date on which the tenant ‘is to give up possession [of the dwelling house] in pursuance of the order’ for the purposes of s.82(2) was 9th February 2005 whether or not the conditions prescribed by paragraph 5 for the postponement of its enforcement were observed. It follows that the secure tenancy had ended before the bankruptcy order was made on 10th February 2005.”[28]In his concurring judgment Chadwick LJ observed (at para 23) that when a court is considering the exercise of its powers under section 85(2), it must first decide (under para (b)) whether to postpone the date for possession, and then decide (under para (a)) whether execution of the order for possession should be stayed or suspended for a further period. He went on to say (in para 25) that when construing a possession order made under Part IV of the Housing Act 1985 the object was to ascertain whether the court, when making the order, had specified a date in the future – and, if so, what date – when possession had to be given by the tenant.[29]It will have been noticed that it was not until the 1993 revision of the prescribed form (see para 26 above) that a date for possession was set out at the start of the order (albeit in conditional terms in that version of the form). In our judgment there is nothing in s 85 of the 1985 Act that fetters the discretion of a district judge to make such order for postponement of possession as he thinks fit. This statutory provision is the lineal successor, in a different context, of the provision which this court interpreted in Sherrin v Brand (see paras 19-22 above), and the width of the discretion available to the judge is precisely the same.[30]The answer to the first question we have to decide is therefore that a judge is not obliged to set out an absolute date for possession on the face of his order. There is, indeed, a vivid contrast between the expression “for such period or periods as the court thinks fit” in s 85(2) and the phrase “a date specified in the order” in s 82(3), 82A(3), 83(3) and 84(4). In our judgment, given that the judge is not obliged by statute to specify a date in this type of order, it is lawful for him to make an order in the revised form suggested in para 10 above. This sets out a date for possession but provides that the date will be postponed and the tenancy will continue so long as the conditions set out in the order continue to be satisfied. The court will be postponing the date of possession for a fixed period in the first instance and thereafter for such period as the tenant complies with his obligations under the order. This fits naturally the statutory language in s 85(2).[31]We turn to consider the second issue in the appeal. As we foreshadowed in para 11 above, Mr Luba championed a form of order in rather more sophisticated terms: Conditional possession order 1. The D is to deliver to up C possession of [address] 2. The date on which the D is to deliver possession of premises to the C is postponed to a date to be fixed by this court on application by the C. 3. The D must pay the C £ for rent arrears calculated up to [date] and £ for costs. The total judgment debt is £ to be paid by instalments specified in para. 4 below. 4. The C shall not be entitled to apply for an Order fixing the date for possession and termination of the D’s tenancy for so long as D pays C the current rent, in respect of which the next payment shall be made on or before [date] together with instalments of £ per [week/fortnight/month] towards the judgment debt. In respect of which the first payment must be made on or before... 5. Any application to fix the date on which the D is to give up possession shall be made to District Judge on 7 days notice to the D and shall be heard in private. 6. The Order shall cease to be enforceable when the judgment debt is satisfied.[32]He said that such a form of order would expunge at a stroke all the difficulties that have been encountered in this field since the effect of s 82(2) was illuminated by this court in Thompson v Elmbridge BC. Under the rule in that case, any breach of a condition of a postponement order will terminate the tenancy, however innocent the tenant may be: a failure by the housing benefit authorities that cannot be ascribed to any shortcoming by the tenant, for instance, or even arrangements made between the DWP and the landlord which provide for payments four-weekly in arrears when a failure to pay each week will represent a breach of the order such as to terminate the tenancy.[33]In an annex to his written submissions Mr Luba set out very clearly a number of reasons why the status of “tolerated trespasser” is profoundly unsatisfactory. This status will arise after a secure tenancy has been terminated (whether because the date stated for possession to be given has passed or because the conditions of a conditional order have been breached), and when the former landlord will not necessarily evict the former tenant but may be content to allow him/her to remain in occupation, paying mesne profits and a contribution towards the accumulated arrears. Although the former secure tenant would be entitled to apply for a further postponement of the date for possession he/she will not always be successful in that respect. For authoritative descriptions of the legal position see Burrows v Brent LBC [1996] 1 WLR 1448 per Lord Browne-Wilkinson at pp 1455D-F and Marshall v Bradford MBC [2001] EWCA Civ 594, [2002] HLR 22 per Chadwick LJ at para 35.[34]Mr Luba has listed nine reasons why the status of “tolerated trespasser” is unsatisfactory for both landlord and tenant: i) He/she cannot enforce any covenant to repair or any other contractual term of the former tenancy. This will be equally true of any statutory rights contingent on “tenant” status, such as the statutory right to buy, to effect a mutual exchange of tenancies, or to assign the tenancy. ii) It is not clear whether he/she has a “right to occupy … by virtue of any enactment” for the purposes of s 33 of the Family Law Act 1996. iii) No statutory rights of succession can arise if he/she were to die. iv) An application to resurrect a previous joint tenancy by postponing the date of possession can only be made under s 85(2) if both former joint tenants agree, and this may give rise to practical difficulties if one of the former joint tenants cannot be traced. v) If a tenant clears the outstanding arrears before making a s 85 application, he/she will have no standing to reinstate the tenancy and sue for breach of a repairing covenant in that tenancy (see Marshall v Bradford MDC). vi) The landlord cannot enforce any covenant with regard to the former tenant’s behaviour or any other covenant of the former tenancy agreement (eg “to maintain the garden”). See Sheffield City Council v Hopkins [2001] EWCA Civ 1023; [2002] HLR 12 per Lord Woolf CJ at para 29 and Manchester City Council v Finn [2002] EWCA Civ 1998; [2003] HLR 41 for some of the difficulties that may result. vii) The statutory framework for increasing the rent payable by a secure tenant does not apply once the occupier has become a trespasser. viii) It has now been established that a secure tenancy will be lost by a breach of the conditions in a possession order, and that it will only revive if there is an application pursuant to s 85 (see Marshall v Bradford MDC at [29] and Lambeth LBC v O’Kane [2005] EWCA Civ 1010; [2006] HLR 2 per Arden LJ at [58]. ix) Problems arise in respect of a stock transfer between a local housing authority and a registered social landlord, because it is only the rights of tenants which survive the transfer.[35]Mr Luba told us that there are now tens of thousands of occupants living in this “twilight zone” because they have breached suspended orders for possession, often because of housing benefit delays. A much smaller number of occupants remain in occupation after immediate orders for possession have been made.[36]Although the Law Commission has now recommended the steps to be taken whereby this very unsatisfactory position may be corrected (see Renting Homes: The Final Report, Vol 1: Report (2006) Law Com No 297, p 75, paras 4.54- 4.56), by the very nature of things, even if its recommendation were accepted, it would take time for a new legislative solution to come into effect. In the meantime it appears to us to be appropriate to make it clear that even under existing legislation the courts possess more flexible powers for setting the terms of a postponed possession order than is generally appreciated.[37]But we do not consider it necessary or appropriate to give a fair wind to any procedure which will require a further hearing before a date for possession can be fixed, with all the attendant expense and delay that this might involve. It would in our judgment be sufficient for possession to be postponed on the terms that if a claimant landlord wishes a date to be fixed, it must write to the defendant giving details of the current arrears and its intention to request a date to be fixed at least 14 days before it makes that application. If the tenant does not respond, or if the landlord wishes to apply for a date to be fixed notwithstanding the tenant’s response, it will then be at liberty to apply to the court on a “without notice” basis requesting a date to be fixed. With its application the landlord must submit to the court a copy of its letter (and the tenant’s response, if any), together with a copy of the rent account since the date of the order postponing possession. Other evidence will seldom be required.[38]If the landlord knows that the DWP pays amounts towards the arrears as a matter of practice four-weekly in arrears it will no doubt desist from applying for a date on that ground alone, because it will know that even if the tenant does not mention this in his response (if any), the tenant is likely to apply to have the court’s order set aside if the apparent failure to comply strictly with the terms of the order has occurred for this reason alone.[39]It is, in our judgment, both lawful and appropriate to make an order along the following lines: 1. The defendant is to give up possession of [address] to the claimant. 2. The date on which the defendant is to give up possession of the property to the claimant is postponed to a date to be fixed by the court on an application by the claimant. 3. The defendant must pay the claimant £[_____] for rent arrears and £[_____] for costs. The total judgment debt is £[_____] to be paid by instalments as specified in paragraph 4 below. 4. The claimant shall not be entitled to make an application for a date to be fixed for the giving up of possession and the termination of the defendant’s tenancy so long as the defendant pays the claimant the current rent together with instalments of £[_____] per week towards the judgment debt. 5. The first payment of the current rent and the instalment must be made on or before [date]. 6. Any application to fix the date on which the defendant is to give up possession may be determined on the papers without a hearing (unless the district judge considers that such a hearing is appropriate) provided that(a) the claimant has written to the defendant at least 14 days before making its application giving details of the current arrears and its intention to request that a date be fixed; and(b) a copy of that letter (and the defendant’s response, if any) together with the rent account showing any transactions since the date of this order are attached to the application. 7. This order shall cease to be enforceable [on [date]] [when the judgment debt is satisfied]. 8. All further proceedings pursuant to the present application are adjourned.[40]In his very helpful submissions Mr Rutledge told us that what his clients and other local authority landlords desire is certainty, together with the avoidance of the expense and delay that would necessarily be associated with a two-stage procedure. The form of order which we have suggested will provide certainty in the sense that it will be clear to everyone that the tenancy will continue until the court fixes the date on which the defendant is to give up possession. On the second point, his clients will obtain a fixed date as soon as the court is satisfied, from perusing the documents filed with the court, that the tenant has defaulted on the terms on which possession was postponed and that there is no good reason not to fix the date for possession (and termination of the tenancy) forthwith.[41]It would, in our judgment, be consistent with good practice if the landlord were to notify the tenant of the adverse consequences of the termination of his/her tenancy when embarking on the process that may lead to a possession order. Skilled housing lawyers may understand the legal consequences of the tenancy being terminated, but not everyone is a skilled housing lawyer, and in the interests of transparency it would be useful if they were stated clearly to the tenant as an additional spur to ensuring that arrears do not continue to accumulate.[42]It goes without saying that when the court receives the landlord’s request to fix a date it will have no jurisdiction to revisit the question whether it was reasonable to make a possession order at all (compare, in a different context, Southwark LBC v St Brice [2001] EWCA Civ 1138 at [17] and [18]; [2002] 1 WLR 1537 at pp 1544D-E, 1550H- 1551A).[43]In this judgment we have been concerned only to identify the terms of an order for postponement of possession that a court has power to make. What order the court will in fact make in any case will be a matter for the discretion of the judge on that occasion, although the working party (and in due course the Rules Committee) will no doubt wish to prescribe or recommend simple forms of alternative order for the use of courts. If a tenant has a particularly bad record of payment, for instance, but is not yet deserving of an outright possession order, the court might wish to make an order along the lines of the current form N28, although the use of the phrase “in addition to your current rent” would be inapposite since the contractual tenancy would have been brought to an end by the making of the order.[44]It will be for the working party and the Rules Committee to consider whether it might be desirable to alter the provisions of CCR 26 r17(2) (which forms part of Schedule 2 to the CPR). On the proper construction of this rule it is currently not permissible for a landlord to make a combined application to fix a date and request a warrant for possession, and it may be thought desirable for the landlord to make such an application in an appropriate case.[45]So far as the present appeals are concerned, we are satisfied that for very understandable reasons the district judges fettered their discretion too narrowly. For the reasons set out in this judgment the court will therefore allow the appeals and order that in each case the district judge’s order for possession and money judgment shall stand but the claim will be remitted to the county court to determine what, if any, terms of postponement of possession are appropriate. APPENDIX ONE Operative Parts of Form N28 46. and the court orders that[1]The defendant give the claimant possession of on or before 20 .[2]The defendant pay the claimant £ for[3]The defendant pay the claimant’s costs of the claim £ .[4]The defendant pay the total of £ to the claimant on or before 20 .[5]This order is not to be enforced so long as the defendant pays the claimant the rent arrears and the amount for use and occupation [and costs, totalling] £ by the payments set out below in addition to the current rent. Payments required [£ on or before 20 and] £ per ,the first payment being made on or before 20 . APPENDIX TWO Housing Act 1985 Section 82(2) 52. Where the landlord obtains an order for the possession of the dwelling-house, the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order. Section 85 (1). Where proceedings are brought for possession of a dwelling-house let under a secure tenancy…the court may adjourn the proceedings for such period or periods as it thinks fit. (2). On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—(a) stay or suspend the execution of the order, or 55. for such period or periods as the court thinks fit. (3). On such an adjournment, stay, suspension or postponement the court— (a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits), unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and(b) may impose such other conditions as it thinks fit. (4). If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.

Cited in 8 later judgments