City Council Of Bristol v Martin Mousah

Under section 84(2) of the Housing Act 1985, persistent serious criminal offending at premises let under a secure tenancy will ordinarily make possession reasonable. It is only in exceptional circumstances that possession should be refused.

The court may consider the effect of eviction on a tenant’s health and welfare. It must not speculate about the outcome of a homelessness application or treat homelessness as meaning that the tenant will necessarily be without shelter. Unsupported assumptions about danger to the public are irrelevant. The public interest includes protecting housing stock from serious criminal use.

The City Council let a secure council tenancy to the respondent. Police searches found repeated use of the premises for the consumption and supply of crack cocaine. The County Court found a serious breach of the tenancy condition but refused possession, relying substantially on the respondent’s schizophrenia, the possible effect of eviction on his health, and the possibility that he might become homeless.

The Council appealed. The central issues were whether the Assistant Recorder had misdirected himself by speculating about the respondent’s homelessness and future danger, and whether sufficient weight had been given to the seriousness and persistence of the criminal conduct.

1. Appeal allowed unanimously. The Court of Appeal was entitled to interfere with the discretionary decision because the Assistant Recorder had misdirected himself and had relied on irrelevant or unsupported matters. The appellate court could substitute its own exercise of discretion.
2. Under sections 84(1) and 84(2) of the Housing Act 1985, possession was available on ground 1 of Schedule 2 and depended on whether an order was reasonable. Where a serious criminal offence, particularly persistent supply of a Class A drug, had been committed at the premises in breach of the tenancy, it would be exceptional for possession not to be ordered.
3. The Recorder was entitled to consider the effect of eviction on the respondent’s health. He was not entitled to speculate about the outcome of a possible application under Part III of the Housing Act 1985. The judicial fact-finding function had to remain distinct from the housing authority’s administrative assessment of homelessness, priority need and intentional homelessness.
4. The medical evidence suggested that eviction might adversely affect the respondent’s mental health, but it did not establish that he would become dangerous to the public. The Recorder had also proceeded on the mistaken assumption that eviction would leave him on the streets. Lord Justice Otton regarded the decision as unreasonable in the Wednesbury sense, and Lord Justice Thorpe considered that the significance of the schizophrenia had been exaggerated.
5. The public interest supported recovery of premises used persistently for dealing in crack cocaine. The comparison with the isolated possession of a small quantity of a Class B drug in Abrahams v Wilson [1971] 2 QB 88 did not assist the respondent. The court ordered possession, awarded the Council its costs below subject to enforcement restrictions, made an order nisi concerning the Legal Aid Board, directed legal aid taxation of the respondent’s appeal costs, and refused leave to appeal to the House of Lords.

• Court of Appeal (Civil Division) — allowed the appeal and substituted an order for possession: [1997] EWCA Civ 1081.
• Bristol County Court — Assistant Recorder Privett refused the Council’s application for possession.