Sheffield City Council v Hopkins

On an application under section 85(2) of the Housing Act 1985, the court may consider any relevant conduct. Its discretion is not confined to the ground on which possession was originally sought or ordered.

The discretion must further the policy of secure-tenancy protection and be exercised fairly and proportionately. The tenant must receive clear notice of new allegations and an opportunity to answer them. The court should also consider the timing of the alleged conduct, any earlier opportunity to raise it, and whether disputed facts can fairly be determined at a summary hearing.

A secure tenant fell into rent arrears, and the council obtained a suspended possession order. After the tenant failed to comply and a warrant was issued, she applied to suspend execution. The council sought to rely additionally on alleged nuisance involving animals at the property.

District Judge Oldham determined as a preliminary issue that consideration should be confined to the rent ground on which possession had been obtained. His Honour Judge Bartfield dismissed the council's first appeal. On the council's second appeal, the central issue was whether the discretion under section 85 of the Housing Act 1985 permitted consideration of matters outside the original ground for possession.

1. Appeal allowed unanimously. The discretion under section 85(2) of the Housing Act 1985 is circumscribed by relevance, but relevant matters are not confined to the ground upon which possession was sought or ordered. Later conduct may make it inappropriate to stay or suspend execution. Requiring a social landlord to commence fresh possession proceedings or plead precautionary grounds would create unnecessary delay and expense.

2. Per the Lord Chief Justice, with whom Tuckey and Arden LJJ agreed, the identification and notification requirements in sections 83 and 84 govern the grounds upon which a possession order may be made. They do not impose the same limitation upon the later discretion under section 85. The breadth of that discretion was consistent with the approach to reasonableness recognised in Cumming v Danson [1942] 2 All ER 653 and Darlington Borough Council v Sterling 29 HLR 309.

3. The breadth of the power does not oblige a district judge to admit every new allegation. Fairness requires clear notice and a proper opportunity for the tenant to respond. A proposed behavioural condition should be specific. Where its justification is disputed, some material amounting to prima facie evidence is required, although formal evidence is unnecessary.

4. The court identified relevant, non-exhaustive considerations: the protective policy of Part IV and Article 8; the overriding objective and the need for a summary and proportionate hearing; notice to the tenant; whether the allegation or an appropriate condition was raised earlier; whether the conduct occurred before or after the possession order; the practicality of resolving disputed facts; and the competing responsibilities owed by a public landlord to its other tenants.

5. Any Article 6 difficulty arising from execution without a fair opportunity to seek relief should be addressed by procedural safeguards when it arises. It does not justify restricting the statutory discretion. The established practice governing relief against forfeiture for non-payment of rent, discussed in Bland v Ingrams Estates Ltd [2000] 2 WLR 1638, did not govern an application under this separate statutory code.

6. The merits had not been determined below. The matter was remitted to Sheffield County Court for determination of the tenant's application to suspend the warrant.

1. Court of Appeal (Civil Division): The council's second appeal was allowed unanimously, the preliminary ruling was set aside, and the matter was remitted to Sheffield County Court.

2. Sheffield County Court, His Honour Judge Bartfield: On 7 December 2000 the judge dismissed the council's appeal, relying on the district judge's reasoning.

3. Sheffield County Court, District Judge Oldham: On 2 November 2000 the judge ruled that the application to suspend the warrant should be considered only by reference to the original rent ground.