CDS Housing v Bellis [2008] EWCA Civ 1315

Case No B5/2008/0614[2008] EWCA Civ 1315
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE TRIGGER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 28 th October 2008
Before
LORD JUSTICE PILLLORD JUSTICE SCOTT BAKERLORD JUSTICE JACOB
Between
CDS HOUSINGAppellantBELLISRespondent
(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)
Mr M Mukulu (instructed by Messrs Jackson & Canter) appeared for Appellant.Mrs C Ellis (instructed by CDS Housing Association) appeared for Respondent.
Judgment
[1]This is an appeal with permission granted by Sir John Chadwick from a judgment of HHJ Trigger sitting in the Liverpool County Court on 14 February 2008.[2]It is a sad case. The appellant is a secure tenant of the respondent, the CDS Housing Association. He is mentally unwell, and in particular suffered, and I think still suffers, from delusions. The details of these delusions medically are described by the psychiatrist who gave evidence, Dr Hellewell. In summary the delusions are that in the property concerned, the appellant’s flat, there was electro-magnetic radiation or something similar emanating from either the central heating or some other part of the electrical system of the flat, which was affecting the appellant. He has no qualifications in either electrical maintenance or gas maintenance, but nonetheless because of his delusions set about trying to find out what was causing them and to do something about it. He damaged the electrical and gas installations of the property. He did this twice and rendered the property not only unsafe for himself but unsafe for other tenants of neighbouring properties. There was a risk of an explosion. The judge accepted that he had rendered the property such that it was in a “highly dangerous condition”.[3]The appellant chose to leave the property quite some time before these possession proceedings were commenced. He was, and I understand still is, staying with a friend; but his possessions were in the property and not surprisingly the housing association wants to go in and effect repairs. A court order was indeed obtained against the appellant to remove his property so they could effect those repairs. As I understand it from the judge’s judgment that was not complied with.[4]So the position, when the housing association decided to apply for an immediate possession order, was that the appellant had been out of the property for some time, repairs needed to be done, and there was a real question as to what would happen if the repairs were effected and the appellant went back into the property. It was that last question which was the heart of what HHJ Trigger had to consider. This case involves no question of principle, it being common ground that he should only have made an immediate order for possession if there was no lesser alternative available to him which would realistically make sense.[5]That boils down, as I see it, to a simple question: could the court be satisfied that there was no longer any real risk that the appellant would not do to the property that which he had done before? I put it that way rather than a more generous way, which might be ‘was he likely to do it again?’, because I do not think that would be the right test. The reason the real risk test in the circumstances of this case is the appropriate test is the enormity of the consequences of getting that judgment wrong; great danger to the appellant and to the other tenants. So as it seems to me, the matter, when it came before the judge, boiled down to one simple question: could the judge be satisfied that there was no real risk that the appellant would do no further damage if the property were repaired?[6]And, to my mind, clearly the most important person giving evidence before the judge on this question was the psychiatrist Dr Hellewell. He gave evidence before the hearing in the form of written answers to questions posed to him pursuant to Part 35 of the CPR. He said this on 3 December 2007:
“Yes, in my opinion Mr Bellis continues to hold delusional ideas about the safety of his property and about there being electrical abnormalities. Although Mr Bellis continues to hold these ideas, it may be that these are less intrusive and compelling to him than was the case some time ago. This may be because Mr Bellis is not at present living in his property; it is entirely possible that, were he to do so, these ideas would once again becoming [sic] more pressing and compelling to Mr Bellis.”
Later on in his report he said:
“I have to say that I am not optimistic that Mr Bellis has a form of illness responsive to antipsychotic medication, although only time will tell. Clinical experience shows that systematised delusions, especially when established over several years, often prove highly resistant to antipsychotic medication. Even so, it would be worthwhile trying a number of antipsychotic medications, in sequence…”
Yet later in this report he said:
“…it is my opinion that, on the balance of probability, the effects on his delusional system are likely to be modest [and that is after working with people to help him]. It may be, however, that, in maintaining regular supportive contact with Mr Bellis, there will be general benefits, in terms of general activity and, possibly, in the extent to which delusional ideas come to dominate behaviour.”
He gave this important conclusion:
“I suspect that, if Mr Bellis were to return to his property and if he were to be left alone, without contact with the Community Team, it would be only a matter of time before there were further damage caused to the property. I remain of the view, however, that, if maintaining contact with Mr Bellis were to be made a priority of the CMHT [that is, the Community Mental Health Trust], it may well be possible to work constructively with him, such that, there would be no return to the previous destruction of property.”
[7]Dr Hellewell gave oral evidence. We were taken to a number of passages. Perhaps the best passage from the appellant’s point of view is to be found at page 120 of the bundle. I should interpolate that before that, the doctor had indicated that the delusional ideas were less troubling, perhaps because the appellant was no longer in that particular property. The doctor then gave this answer:
“If Mr Bellis is put back into that particular environment, and he feels that his concerns are not being heeded, then perhaps we might expect that the intensity of the ideas and the extent to which he is exercised by them may become bigger. But perhaps as, if he feels that his ideas are being listened to, if he is being supported, then maybe the ideas might persist but we might reasonably expect there would be fewer knock on effects in terms of behaviour and so on.”
And the doctor indicated that Mr Bellis had had greater contact with the community team. He was not able to say whether it was by Mr Bellis’ own motivation or their motivation. The doctor also said that Mr Bellis was on medication.[8]The heart of this appeal is that the doctor’s evidence showed that the appellant was better than he was and that if he maintained contact with the medical support team and stayed on medication then he was, as it was put by Mr Mukulu, “on the mend”.[9]The learned judge set out his few more details than I have done here, but he came to the conclusion, before he came to the decision on whether to make an immediate possession order, as follows:
“I am quite satisfied, having considered all the relevant circumstances including the nature and degree of the defendant’s disability, that the claimant through its offices were satisfied that these possession proceedings were necessary in order not to endanger the health and safety of either the defendant himself or a person in the vicinity of the property. Having damaged in a similar way the property twice as of each occasion there was a real risk of an explosion, a fire or partial collapse of the property. The claimants in my view would have been failing in their duty had they not instituted these proceedings. I am also satisfied it was entirely reasonable for the claimants to hold that opinion.”
[10]I cannot see any fault in that conclusion. Dr Hellewell never said that there was no risk in the future, and this case is quite different from other cases where a repeat of some kind of unacceptable behaviour may be unattractive but tolerable. The consequences of getting this one wrong could be catastrophic. The judge went on, having reached that conclusion, to consider the question of reasonableness under section 7 of the Housing Act 1988. He said at paragraph 24:
“So turning to the question of reasonableness, I shall try to encapsulate the reasons for and the reasons against making any form of possession order.”
I emphasise the word ‘any’ form; at that point he is considering a possession order as such. On the one hand, if a possession order were to be made the defendant would lose a secure tenancy and with it his potential right to purchase that property.” I interpolate that the right to purchase has played a part of little significance in this appeal, not surprisingly, since it seems wholly unrealistic to think that the appellant was ever going to be in a position to purchase.[11]Going back to what

the judge said:

“He runs the risk of being homeless, although it must be said he has lived in alternative accommodation for nigh on three years. He would probably only be offered less attractive and less secure accommodation. His mental health problems continue although they may be capable of being managed under the current support package provided, if of course the defendant fully cooperates. And I find he lacks much insight, so that cooperation for the future is perhaps suspect.”
[12]Mr Mukulu suggested the judge was unjustified in that last conclusion about lacking much insight, but the cross examination of the appellant to my mind shows just that. He failed to understand that actually there was nothing wrong with the property, and his immediate idea of what would happen if he thought the property was causing him ill-health was not to go to the medical team but his solicitor. That surely suggests a lack of insight as to what is happening.

The judge went on:

“On the other hand this property is in a dangerous condition. The claimants will not effect repairs until the defendant moves his possessions, which he has resolutely refused to do despite a court order. Understandably the claimants are concerned with the potential ramifications of repair works taking place during which loss or damage is caused to some or all of the defendant’s possessions. The claimants have over a lengthy period of time considered all possible options, in my judgment. They have tried reason. They have tried to give support to the defendant. This has all been done in an effort to avoid a claim for possession but quite simply, despite all these resources and all their efforts to avoid this intractable problem, a stalemate exists and it exists in my judgment through no fault of the claimants’.”
[14]The judge specifically considered whether there should be suspension or postponement in the next paragraph:
“In my judgment, considering all the history and all the relative circumstances the time has come for the possession order to be made. I do not feel that the defendant has the ability or the will to comply with any suspension or postponement.”
[15]It is suggested that the judge either failed to give sufficient reasons or failed to consider properly the question of suspension or postponement. Mr Mukulu has submitted that the judge should have specifically considered postponing a possession order, with conditions that he adhere to a care and medication programme.[16]I think the judge cannot be faulted in any way whatever in this most excellent judgment. I think that once the judge had come to the conclusion that there was a significant risk, as he did, that was the only conclusion he could have reached. There was simply no point in him considering a postponement or suspension of a possession order because either of those would involve the risk becoming live again, with Mr Bellis getting back into the property. It is true that there is in law the requirement to go through a series of stages. This is a case where the answer to each and every one of the stages is the same and depends upon the same facts: has the risk been reduced to the point where it is no longer tangible? That was what had to be shown. It was not shown. The judge was absolutely right in his judgment, and I will dismiss this appeal.[17]I agree[18]I also agree that the appeal should be dismissed for the reasons given by Jacob LJ. I only add and underline that in reaching his clearly stated conclusions the judge was entitled to take into account, in the context of the other evidence, his own assessment of the appellant and the possibilities for the future. The appellant had given evidence before him and had been properly examined and cross examined. The appeal is dismissed.

Order

Appeal dismissed