London Borough of Barking and Dagenham v Bakare [2012] EWCA Civ 750

Case No B5/2011/1802

[2012] EWCA Civ 750

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ROMFORD COUNTY COURT

(HIS HONOUR JUDGE PLATT)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 2 nd May 2012

Before

CHANCELLOR OF THE HIGH COURT

LORD JUSTICE HUGHES

LORD JUSTICE MCFARLANE

Between

The London Borough of Barking and DagenhamRespondent

BakareAppellant

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Mr Edward Fitzpatrick (instructed by Sternberg Reed) appeared for Appellant.

Ms Annette Cafferkey (instructed by the London Borough of Barking and Dagenham Legal Practice) appeared for Respondent.

Judgment

[1]This is an appeal from the decision of HHJ Platt sitting in the Romford County Court in June 2011 in the course of possession proceedings with respect to a property, 65 Althorne Way in Dagenham in Essex. The tenant of the property, Olufemi Olayinka Bakare, had been the tenant since December 1998 and, for most if not all of the material time, had lived there with her daughter, with her elder son, David, and with her younger son, Stephen, who was at the time of the hearing before the judge, and indeed now, 19 years of age.

[2]There was a history going back over a number of years of rent arrears and that was dealt with initially before a district judge in November 2005 when a suspended possession order was made. Provision was provided for the payment of arrears but the possession order was suspended on the basis that it would not be enforced so long as the defendant paid rent arrears at the rate of £10 per week. The defendant was in default and it was accepted before the judge that by 16 December 2005 her tenancy of the property had formally ended and thereafter at that time as a matter of law, she became a "tolerated trespasser in the premises". She continued to pay rent and at times there were further, albeit unsuccessful, attempts to enforce the warrant for possession against her.

[3]The statute law was changed and as a result from 20 May 2009 Schedule 11 of the Housing and Regeneration Act 2008 provided that she once again became a tenant under the terms of that statute on the same terms as the original tenancy.

[4]The live applications before the Romford County Court that were dealt with in 2011 by HHJ Platt were twofold. First of all final possession orders were sought under Schedule 2 of the Housing Act both under ground 1 in relation to rent arrears and ground 2 in relation to the behaviour of both of the two sons. Secondly antisocial behaviour orders (“ASBOs”) were sought in relation to the two boys under the Crime and Disorder Act 1998.

[5]The proceedings were part of a group of applications made by the local housing authority against a number of tenants and individuals who occupied this particular block of flats. HHJ Platt heard all the matters together over the course of some five days in February 2011 and in respect to this tenant and her sons he circulated a specific judgment to the parties on 14 March 2011. That judgment was formally handed down on 4 April.

[6]In summary, and insofar as is relevant to this appeal, HHJ Platt found as follows in this first judgment. In relation to rent arrears he did not deal with the matter because a hearing in relation to that issue had already been adjourned and fixed for June 2011. He focussed upon the complaints in relation to the boys' behaviour and he did so from the date of the new statutory tenancy on 20 May 2009. So far as ground 2 is concerned (I will set out the terms of grounds 1 and 2 in a moment) only ground 2(a) applies. Having heard what must have been a wealth of evidence he did not find any of the allegations of adverse behaviour proved against the older boy, David, but in relation to the younger boy, Stephen, the judge at paragraph 39 to paragraph 56 made a number of findings. In short they were these: that Stephen had been connected with class B drugs over a number of years and this was well established. Secondly, he found that Stephen was connected with a quantity of firearms and ammunition found hidden in or near the block in the autumn of 2009. Close to the date of the hearing before the judge and well after the time when Stephen will have been aware of the applications that were being made there were two events of behaviour of a criminal nature by Stephen in January 2011 when he was involved with the use of cannabis in the vicinity of the block.

[7]At paragraph 52 of this judgment

the judge summarised his conclusions thus:

"From all these facts as found by me I conclude to the civil standard that over a long period of time from about the late summer of 2009 up to the present Stephen has regularly been smoking cannabis and in possession of cannabis in the communal parts of Althorne Way and in the vicinity of the property. He is also linked to the presence of offensive weapons including a hand gun and Class B drugs in the communal areas of the block. That behaviour has caused and was likely to cause significant annoyance, nuisance and distress to other residents."

[8]Finally and not specifically related to Stephen the judge found that a quantity of class A drugs had been found in the flat itself in November 2009.

[9]The judge in particular held that Section 85A of the Act required him to consider the effect of the behaviour upon the other tenants and those visiting the block and he held that these matters will have been of real and continuing concern to those individuals, not least because it had served as a magnet for the criminal activities of others. The judge went on to hold that if these were straightforward possession proceedings he would have "no hesitation" in concluding that these findings were sufficiently serious to justify making a possession order on the basis that the tenant as a matter of law was responsible for the acts of the son who was living with her. However, as the housing authority had chosen to style their application within the adjourned possession proceedings in relation to rent arrears, the application for possession which arose from Stephen's behaviour had to be adjourned to be dealt together with the rent proceedings at the June hearing. The judge did however impose an ASBO upon Stephen, the terms of which prohibited him from possession of cannabis anywhere in the vicinity of the block and from loitering in the common parts of the block with one or more of three named individuals.

[10]In June the matter came back before the judge for the conclusion of the various applications. It was accepted by the parties and by the judge that the court had jurisdiction to proceed with the application for a possession under ground 2 within the already established possession proceedings in relation to the rent arrears. The authority for that was Manchester City Council v Finn

[2003] HLR 41

[11]In addition to the earlier findings of fact, three more allegations were found proved by the judge. They were these: that on 22 February 2011, that is, only some eleven days after the original oral hearing before the judge and prior to the giving of judgment, Stephen had been found with cannabis and eleven wraps of white powder which we are told later on conviction were established to be class A drugs and which the judge for the purposes of his judgment assumed were class A drugs, on a motorbike within 250 metres of the block. The flat was searched on that occasion and two sets of weighing scales were found and a quantity of cash; secondly, on 22 March 2011 Stephen was arrested, having been in a car in the vicinity of the block. Cannabis was found on his person and the car contained more bags of cannabis. It is of note that that date was less than a week after the original draft judgment will have been sent out to Stephen and his mother; thirdly, on 4 April Stephen was arrested for being in breach of the ASBO, having been found in company with one or other of the named youths very close to the block.

[12]Counsel for the tenant conceded before HHJ Platt that these findings were of themselves clearly of sufficient gravity to justify making a possession order. The sole question for the judge was to determine whether or not that possession order should be suspended.

[13]I turn now briefly to look at the legal context. I have made reference to grounds 1 and 2 of Schedule 2 of the Housing Act 1985:

“Ground 1E+W Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed. Ground 2 The tenant or a person residing in or visiting the dwelling-house— (a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or (b) has been convicted of— (i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or (ii) an indictable offence committed in, or in the locality of, the dwelling-house.”

Ground 2

The tenant or a person residing in or visiting the dwelling-house—

[14]Section 84(2)(a) of the Act requires that no order may be made on any of grounds 1 to 8 of Schedule 2 unless the court thinks it is reasonable to make the order. It is settled law that the court must take account of all of the relevant circumstances at the date of the hearing.

[15]When considering an order under ground 2 specific provision is made in Section 85A which requires the court to consider in particular:(a) the effect that the nuisance and annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons;

[16]By Section 85(2) on making a possession order or at any time before the execution of the order the court may stay or suspend the execution of the order or postpone the date for possession. If there is a stay, suspension or postponement the court may impose such conditions as it thinks fit under Section 85(3)(b).

[17]In the course of the written and oral submissions made for the purposes of this hearing the court has been referred to a number of previous authorities. Whilst grateful to counsel for their assistance in this regard, for my part I regard those authorities as being little more than illustrative of where, on the facts of any particular case, the line has been drawn as to when or when not suspension of a possession order should be imposed.

[18]We have discouraged counsel from descending to detail in relation to this case law and certainly my view is that this particular case raises no matter of principle that falls for decision and which would require closer analysis of the authorities. For the record the cases in particular to which we have been referred are Bristol City Council v Mousah

[1998] 30 HLR 32

, Kensington and Chelsea LBC v Simmons

[1997] 29 HLR 507

, West Kent Housing Association Limited v Davies

[1999] 31 HLR 415

, Portsmouth City Council v Bryant

[2000] 32 HLR 906

. Both counsel in particular have highlighted amongst these cases Manchester City Council v Higgins

[2005] EWCA Civ 1423

which underlines the need for the court, when considering whether or not suspension should be made part of the order, to focus upon the future but equally that authority stresses as others do the unfettered nature of the court's discretion and the need for the court to take into account all the circumstances of the case.

[19]The Manchester City Council decision is also authority for the need for the court to look at the factors that point one way or the other and for the need for there to be "a sound basis" for the hope that any previous antisocial behaviour would cease in the future.

[20]Further reference has also been made to Knowsley Housing Trust v McMullen

[2006] EWCA Civ 539

. I do not propose to quote from that authority but within it Lord Neuberger MR sets out a number of factors which have to be borne in mind in these cases. It is also argued, and I for my part accept, that the case of Manchester City Council v Pinnock

[2010] UKSC 45

underlines the need for the domestic law to have in mind the need for proportionality when considering in particular whether or not a possession order should be suspended.

[21]Against that background I turn to look at the judgment in June of HHJ Platt. By the time of that hearing the tenant had done much to put her financial circumstances in order so far as the rent is concerned and the judge held that if this were simply a rent arrears case he was in no doubt that the warrant for possession should remain suspended. The judge recorded that the tenant had pointed out that (a) the breaches arose from the behaviour of her son who the judge found "she is plainly unable to control" and not from any express or direct behaviour of herself. Secondly, the defendant asserted that Stephen had been staying away from the flat on a temporary basis since 11 May and that her expectation was that he would remain away from the property in the future. She offered to be bound by a condition requiring her to ensure that he stayed away from the block and for his part Stephen applied for the ASBO, which he accepted would remain in force, to be varied to forbid him from going near the block.

[22]Finally the tenant referred to the fact that her adult daughter was still living at the property and that an order for immediate possession would effectively render the tenant and the daughter homeless.

[23]The judge identified five factors in favour of an outright order relied upon by the authority at paragraph 17. In summary these are(a) a very long history of rent arrears,

(b) serious allegations proved against Stephen, some of which postdated the issue of proceedings,

(d) the effect of those further incidents notwithstanding the court order and

(e) the absence of any acceptance by the mother that her son had misbehaved or any expression of remorse on her part.

[24]The judge expressly referred to the case of Knowsley v McMullen and the case of Manchester v Pinnock, to which I have made reference, as authority for making a possession order notwithstanding the fact that the tenant herself may be blameless and unable to control her offspring. He set out his conclusions in short but clear terms at paragraphs 20 and 21 of the judgment which I will now read. At 20 he said this:

"As the Court of Appeal has pointed out in Knowsley v McMullen these cases are highly fact specific. In my judgment the crucial factors which point against any suspension of the order in this case are (a) the continuance of the Third Defendant's behaviour not only after issue of proceedings but after the draft judgment had been issued (b) the breach of the ASBO (c) the gravity of the findings which I have made which indicate a significant escalation in the Third Defendant's criminal activities (d) the fact that it was not until 15th May 2011 that the First Defendant took any practical steps to acknowledge that her son's behaviour presented a serious threat to the wellbeing of other residents and to address that issue by moving Stephen away from living in her property. This is simply too little too late. 21. Applying the proportionality test as set out in Manchester DC v Pinnock I have no doubt that the action of the claimant in seeking a final order and the decision of the court to make a final order are a proportionate response to the facts as I have found them to be. The court simply has no confidence that this very grave behaviour is going to stop."

[25]He therefore made an immediate possession order and it is against that order that the tenant now seeks to appeal. Permission to appeal was initially refused on paper by the Master of the Rolls but granted following an oral hearing by Lloyd LJ on 28 November 2011. The point, particularly, that Lloyd LJ felt justified full consideration by the court was whether or not the judge had engaged, or sufficiently engaged, with the package of proposals that the tenant was putting forward for her future policing, as it were, of her son's attendance at the block.

[26]Mr Edward Fitzpatrick has presented the case before us on this appeal with conspicuous professional skill and charm. He may have detected that the flow of the court's approach to the case was against him at the beginning of his oral submissions but I for my part am grateful to him for the clarity with which he has spelled out the narrow but firm way in which this appeal is argued. He accepts that there were grounds for the making of a possession order and accepts that the only issue before the court was whether or not that order should be suspended.

[27]Four grounds of the five originally pleaded are pursued in the course of the appeal and they are, again in summary terms,(1) that there was a failure to give proper consideration to the sufficiency of the protection of neighbours provided by the package put forward by the tenant,

(2) that the finding that the tenant had done "too little too late" was unfair and not supported by the facts,

(3) the judge failed to take proper account of the fact of the tenant's own personal circumstances and therefore the disability she had in doing anything to control her son's behaviour and

(4) that in assessing whether other orders were workable the court failed to take account of the ongoing presence of the police in the area and the likelihood that the orders would be able to be enforced without difficulty.

[28]Although at times in the Notice of Appeal and the skeleton these grounds are couched as errors of law, in reality the attack brought in this appeal is upon the exercise of judicial discretion. One particular matter to which I draw attention is in paragraph 16 of the skeleton where it is said:

"...this is not a case where the level of criminality ruled out the making of a suspended possession order."

[29]I draw attention to that because it seems to me that the test is not whether suspension was or was not "ruled out" as an option before the judge. The question for this court is whether in exercising its discretion to order immediate possession the judge was plainly wrong. In that context today Mr Fitzpatrick has confirmed that he is unable to put his case at that high level. It is not possible to argue that no judge could properly have made an immediate order for possession in this case. The focus of his submissions is therefore upon the structure and content of the judgment and behind that the failure of the judge, as he submits it, to engage with and give proper weight to the package that the tenant was putting forward.

[30]It is submitted that the judge simply did not address this option and certainly did not give his views upon whether or not it presented a proportionate way forward in response to Stephen's past behaviour.

[31]For the respondent Ms Cafferkey in the course of her detailed written submissions and more briefly orally first of all submits that there is no error of law here, that this was an exercise of discretion by the judge and, having taken the court to the detailed case law to which I have made passing reference, her primary submission is that, rather than the judge being "plainly wrong" here, he was on the facts "plainly right" and that really no judge properly approaching the facts of this case could have done other than make an immediate possession order. Ms Cafferkey accepts that for the purposes of succeeding at this appeal hearing she does not need to go that far.

[32]Looking at the matter in conclusion, Mr Fitzpatrick is right to accept that the circumstances of this case fall fairly within the discretion of a judge who is approaching the matter on a reasonable and proper basis. It is not a case where we can look at the outcome and simply say that the judge was plainly wrong not to suspend the order here. The issue is whether the judge took proper account of the package of measures put forward designed to keep Stephen away from the block of housing. The submission is that the judge did not properly engage with this in the course of his judgment. As a matter of express semantics that might be correct in the sense that there is no paragraph in the judgment, after he set out the details of that proposal, where the judge returns to it and puts it into the concluding words in which he expresses his final decision. But this was a case where there was simply a single argument put forward by the tenant. That is the way Mr Fitzpatrick puts it before us and that is the way it was before the judge. There was therefore a straight choice between suspending the order on the basis of the package put forward (or some other refined version of that) or making an immediate order and that was the only decision the judge had to take that day in this case.

[33]This was an experienced county court judge and it is possible very clearly to conclude from all that he says about the law and the facts in the course of his two judgments that he had a very clear grasp of the detail of this case. It was a reserved judgment. He made express and correct reference to the package put forward at paragraph 14 of his judgment and then at paragraph 15 he referred to two further points supporting the tenant's case, first of all that she faithfully complied with the terms of the suspended order and secondly that the antisocial behaviour order, that had already been made, had proved sufficient reassurance of protection for others residing in the block. The judge had those matters firmly in mind and made express reference to them. He then went on, as I have already rehearsed, to summarise the factors against.

[34]Stepping back for a moment it is right not to lose sight of the structure of these two hearings before the judge. As a procedural requirement in this case -- and I know not what happened in other cases in relation to other tenants -- the court was forced to adjourn the decision on the possession order from the March determination to June. What the judge said in his earlier judgment and the orders that he made were, it seems to me, a shot across the bows for this lady and her son; the writing was on the wall as to the seriousness with which the judge viewed the behaviour, the detail of that behaviour which, whether or not she knew about it at the time but she will have known when she read the judge's conclusion, and the sorts of orders that the judge was going to consider when the matter came back before him in June. What happened thereafter was that the young individual, Stephen, committed three further acts either shortly before the judgment was issued or thereafter and the judge found, rightly on the facts, that this was not simply a continuation of the criminal behaviour but an escalation of it. Shortly before the hearing Stephen had moved out to temporary accommodation. The judge found however also that the mother displayed no remorse.

[35]Against that background we then have the conclusions at paragraph 20 and 21 of the judge's judgment to which I have already made express reference. It is plain to me that the judge must have engaged with the tenant's proposals. That was, as I have said, the only decision that he was being called upon to make. This was a one issue case. The judge gave careful consideration to all of the other factors in play at both hearings and it is clear to me from what he says in the course of his June judgment, but in particular to the paragraphs to which I have made reference, that he had these matters at the forefront of his mind in deciding to impose an immediate possession order. Although he does not in terms bring the package of proposals back in at or around paragraphs 20 and 21, the reasons that he gives in those paragraphs are in my view sufficient to justify the conclusion to which he comes which is in terms:

"The court simply has no confidence that this very grave behaviour is going to stop"

. In coming to that conclusion he was focussing entirely upon the future and it is that conclusion which drove him to make the order that he did.

[36]I can see no basis upon which this court should interfere with the exercise of the judge's discretion conducted as it was in my view on a proper and sound basis. I would dismiss the appeal.

Sir Andrew Morritt:

[1]I agree. Despite Mr Fitzpatrick's tenacity it is abundantly clear that the challenge to the judge's exercise of his discretion was on inspection hopeless. It is simply not correct that he did not assess the tenant's alternative proposals. He did and he set them out in his judgment. Moreover their worth was the only question at issue at the hearing. He found that those proposals would not stop the grave misbehaviour, he was entitled so to find and that is an end to the matter.

Lord Justice Hughes:

[2]I agree with both judgments.

Order

Appeal dismissed