Surrey Heath Housing Association v Kingsdon & Anor [2007] EWCA Civ 562

Case No B5/2007/0092[2007] EWCA Civ 562
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ALDERSHOT & FARNHAM COUNTY COURT
(HIS HONOUR JUDGE T MILLIGAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 18 May 2007
Before
LORD JUSTICE LLOYD
Between
SURREY HEATH HOUSING ASSOCIATIONClaimant/KINGSDON & ANRDefendants/
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss K Olley (instructed by Messrs Lee & Co) appeared for Appellant.Miss J Hidgson (instructed by Healde Nickinson) appeared for Respondent.
Judgment
[1]This is a renewed application for permission to appeal in a case where the registered social landlord, which is called Accent Peerless Housing Limited, successor in title to Surrey Heath Housing Association Limited and successor ultimately of the local authority in respect of its social housing, sought and obtained an immediate unconditional possession order against their tenants, Mrs Patricia Kingsdon and Miss Karen Kingsdon, who are mother and daughter. The premises are in Frimley.[2]It is an unusual case and it is a troubling case. I have no doubt that the judge was troubled by it. I am told that the hearing took the best part of three days and the judge gave a fairly full extempore judgment at the end of the third day. The difficulty which gave rise to the proceedings is that the defendants, who are both tenants of the claimant, both suffer from serious mental difficulties, mental health problems as a result of post-traumatic stress disorder and other circumstances. They are ultra-sensitive to noise and they are ultra-vigilant. They are next door to a couple, Mr and Mrs Dixon, who own their own property, a property which when they bought it was relatively run down and which, not surprisingly from their point of view, they immediately proceeded to do a lot of serious DIY work to, in order to improve its state and modernise its condition. They did the work themselves outside working hours and to some extent at weekends, but one of the tenants never goes out at all and the other only to a relatively small extent and so inevitably they were exposed to a lot of noise from next door, as they have been to some extent on the other side of their property from a Mr and Mrs Jackson, who have since moved.[3]The difficulty was that the defendants’ response to the noise from their neighbours was to do a large number of things in respect of some of which maybe they could not help themselves. There were a lot of complaints to the police, there were a lot of complaints to the Environmental Health Department, there were complaints directly or indirectly to the claimants and there were a number of things done which were really altogether disagreeable including complaints to the Dixons and Mr Dixon’s employer, and there were incidents where it appears, and the judge held, that this happened to some extent, that the defendants solicited or caused unwanted mail to be sent to the Dixons, some of which was perhaps rubbish and some of which was of a disagreeable kind. I should say that the relevant history started in 2001 when the Dixons moved in. In those circumstances the claimant brought proceedings under ground 14 of Schedule 2 to the Housing Act 1988 on the basis that the defendants had been guilty of conduct causing or likely to cause nuisance or annoyance to a person or persons residing in the locality.[4]That was the ground on which the proceedings were brought, and the judge considered the facts and concluded that there had been substantial conduct of that kind. He also had to consider the Disability Discrimination Act 1995 because it is common ground that the defendants are disabled within the meaning of that Act. That meant in short that the claimants had to justify the possession order that they sought by showing that it was necessary in order to protect the health and wellbeing of Mr and Mrs Dixon, and that they reasonably held the opinion that it was so necessary.[5]I have mentioned that one of the defendants does not go out at all and the other hardly goes out. They did not attend the trial because they could not have faced it. They put in written evidence which the judge referred to and said that he gave more weight to than he would in other circumstances if there had not been a good reason for their being unable to attend court. He heard psychiatric evidence, he heard evidence from the defendants’ GP, who is said to be one of the very few men with whom the defendants can have an effective relationship. He heard evidence from a senior employee of the claimants, their housing manager, and he heard evidence obviously from the Dixons and also from Mrs Jackson. I have no doubt that the matter was gone into as thoroughly as could reasonably be expected, having regard to the circumstances. There was certainly an extremely long and full psychiatric expert report which was amplified by full answers to questions seeking clarification to supplement the report on both sides.[6]Miss Olley submits that there are several grounds on which the judgment can be challenged on appeal with a reasonable prospect of success. One is that some of the facts relied on could not qualify as relevant acts of nuisance because they were not done to the neighbour either directly or indirectly and they therefore do not count as conduct causing or likely to cause a nuisance or annoyance to a person residing in the locality. That may well be true, but the fact that the effect on the neighbour would be indirect because of, for example, invoking investigation by an authority which has the responsibility for investigating, would seem to me to make it relevant, albeit that there may be a number of acts in this particular history that are indirect, and I am told for example that there are continuing communications to the police but that the police basically ignore them, and certainly do not pass them on.[7]That may well be an arguable point, although it seems to me extremely unlikely that it would suffice to get rid of more than a relatively small amount of the conduct in question and unless it reduced the relevant conduct very substantially, it would not make a difference to the result.[8]A second point is, to put it this way, about complaints on the part of the defendants which the defendants honestly consider to be justified even if a person not suffering from the mental problems that they have would not consider to be justified: whether such conduct is relevant for the purposes of ground 14. That may well be a point which is arguable but it seems to me that there is almost certainly to be an objective test. I have not been shown any authority on this and it may be that there is none, because as Miss Olley says there is not thought to be any decided case under ground 14 where the conduct is remotely similar to this case, except one unreported case which has not been found. That may be a point which is arguable.[9]A more substantial point, as it seems to me, is that Miss Olley submits that the possession order which was made upon an unconditional basis, albeit postponed by some period of weeks coming over the Christmas period, should not have been made on an unconditional but on a suspended basis, particularly having regard to a) the mental problems of the defendants and b) the fact that the situation had abated very considerably since the commencement of the proceedings.[10]There was, I am told, no incident of any kind which was the subject of complaint during 2006. There had been an incident of some significance towards the end of 2005. That was followed by a notice from the claimant to the defendants preparatory to the commencement of proceedings that the proceedings would be brought under ground 14. There was then a multi-agency meeting in January 2006 convened by the claimants and attended by all sorts of people, including the GP, and the local authority and I think possibly also the police, and it is said that at that meeting, albeit that the minutes may not be as full as they might have been, partly for reasons of confidentiality, the decision was taken that the proceedings ought to be taken in order to protect the Dixons. Miss Olley says that the question which had to be considered of which the claimants had to be satisfied was that it was necessary to protect the health and wellbeing of the Dixons, and at any rate the minutes do not say that the question of necessity was addressed.[11]So that is another point under the Disability Discrimination Act and then, as I say, Miss Olley submits that given that there had been this very substantial abatement of the problem during 2006 without trial, albeit that the previous history had caused an accumulated tension which I can well believe made life very difficult for the Dixons, she submits that it was quite wrong to make an immediate order rather than a suspended order. Quite what the terms of the suspension were would have been for some consideration.[12]The judge addressed that point in the last two paragraphs of his judgment, having considered in particular the evidence of the doctor that the defendants would not accept any form of treatment, or at least any form of treatment that had been suggested, and he had said in considering the evidence of the psychiatrist that there was a real continuing risk, having regard to the defendants’ mental condition and their attitude, that perpetuating the present position would expose Mr and Mrs Dixon to further risk. That was the basis on which he was satisfied of the position under the 1995 Act. He says at paragraph 56:
“The effect on the Dixons, and all those drawn in by their persistent, and unfounded, or at least unreasonable complaints, is, and has been, severe and, like Professor Hersch [the consultant, the expert witness], I see no prospect of any real change with improvement in what has become an untenable position sadly for all concerned, including the defendants.”
[13]That produces a most intractable situation in which there was evidence that there had been an attempt to provide alternative housing by the claimant for the defendants but that it was not possible; that one detached property had been offered but was turned down because it was outside the catchment area of their general practitioner who, as I said, is a most important person in their lives. Who is to say that that refusal was unreasonable, but the consequence of that refusal was that there is no alternative that the claimant could offer. It is a real social problem and I have no doubt that the defendants would qualify as vulnerable in terms of the homelessness legislation, which I happen to have been considering in the last application before me. But that is a side issue not relevant to the question of whether I ought to grant permission to appeal in this case.[14]I should say that permission was refused by Tuckey LJ on the papers and he said that it was impossible to contend that the defendants’ conduct was incapable of amounting to nuisance or annoyance, and I would agree with what he says, at any rate to the extent of saying that there is at least a substantial part of the conduct which must be regarded as capable of falling within ground 14.[15]He then went on to say that the judge’s finding that it was likely to continue was entirely justified, and that he could detect no material error in the judge’s detailed consideration of reasonableness and disability discrimination. I think Miss Olley would, above all, take issue there with the conclusion as to whether the conduct was likely to continue, given that it had not continued during 2006; and that, she would submit, is highly relevant to the question of whether a suspended order should be made.[16]I should mention that shortly before the application came on the court received a letter from the defendants which sent a letter from Surrey Heath Borough Council dated 27 April 2007, which says a certain number of things about the present situation. It says nothing that is strictly relevant to the appeal, which must be determined on the basis of the evidence before the judge and the circumstances as they were at that time.[17]I find this unusually difficult. It seems to me that there is a good deal in what Mrs Hidgson says on behalf of the claimant in support of the proposition that the judge took a great deal of care over this and applied his mind correctly and came to legitimate conclusions. It seems to me that if there is an arguable ground of appeal, it lies really only on the question of whether the judge gave proper regard to the fact that there had been no incidents of any kind, as I understand it, in the course of 2006, and as to the relevance of that fact for a) the question of whether the conduct will continue, and b) the question of whether the appropriate and reasonable order, because reasonableness is of course at the heart of the relevant jurisdiction, would not be a suspended order rather than an outright order.[18]In the end I come to the conclusion that on that ground, or those related grounds, it would be right to grant permission to appeal. I am conscious that I may be granting permission to some extent because of the intractable nature of the underlying situation, but it seems to me that in a sense that provides a compelling reason why the court should be able to consider this appeal. It would not provide a sufficient reason without there being an arguable ground of appeal, and in my judgment there is an arguable ground of appeal in respect of the question of whether in the light of the abatement history, so to speak, in 2006, whether or not the nuisance was likely to continue, and whether the reasonable order would have been to make a suspended order rather than an outright order.[19]Looking at the grounds of appeal as they have been formulated in the appellant’s notice I would not grant permission on the first ground, which is the question about whether a sincere complaint is relevant for ground 14. That may or may not be a real point, but I do not see that that would make a sufficient difference to the overall relevant conduct.[20]The second ground of appeal is that the finding that the nuisance was likely to continue was contrary to the evidence before the judge. I think that is part of the point which I have referred to.[21]The third point is also, in a sense: in concluding that it was reasonable to make a possession order, the judge took into account irrelevant considerations and left out of account relevant considerations. That is formulated in perhaps a rather over-general way.[22]It seems to me that the ground of appeal on which I would grant permission is that, in concluding that it was reasonable to make an immediate possession order, the judge went wrong in failing to take into account the abatement of the nuisance during 2006 and in failing to give proper consideration to whether a suspended order would be a reasonable form of order.[23]The fourth ground of the appeal is under the Disability Discrimination Act and, despite Miss Olley’s submissions on that, I will not grant permission on that score.[24]Accordingly, what I will do is I will refuse permission on grounds 1 and 4. I will grant permission on ground 2 and on a version of ground 3 which ties it specifically to the abatement of the nuisance during 2006. Application granted on ground 2 and amended version of ground 3. Stay continued until outcome of Appeal.