London Borough Of Barnet v Lincoln

When determining possession proceedings under the Housing Act 1985, the court must separately consider whether the statutory ground is established, whether possession is reasonable, and whether any order should be suspended or take immediate effect.

The decision whether to suspend an order requires a broad, common-sense assessment of all relevant circumstances at the hearing date. That assessment may include the history of nuisance, the likelihood of recurrence, the conduct of other persons associated with the tenant, the protection required by neighbours, and the consequences of homelessness. An appellate court will not interfere with that discretionary balancing exercise where the judge has properly directed himself and reached a conclusion open to him.

The London Borough of Barnet obtained an immediate possession order in the Barnet County Court against a secure tenant, Derek Lincoln, on ground 2 in Part 1 of Schedule 2 to the Housing Act 1985. The claim concerned prolonged nuisance and harassment affecting neighbours.

The tenant accepted that the ground for possession was made out. He sought permission to appeal, arguing that his improved behaviour, abstinence from alcohol and engagement with professional assistance justified suspending the possession order. The central issue was whether the county court judge had lawfully and properly exercised the discretion to make the order immediate.

1. Application dismissed. Permission to appeal was refused because the proposed appeal had no real prospect of success.
2. For possession under the Housing Act 1985, the court must determine: whether the statutory ground is established; whether it is reasonable to make a possession order; and, if so, whether the order should be suspended or immediate. This formulation was identified by reference to West Kent Housing Association v Davis [1998] 31 HLR 415.
3. The question whether an order should be suspended is governed by the same broad, common-sense approach as the assessment of reasonableness. The court must consider all relevant circumstances as they exist at the hearing and give such weight as it considers appropriate to the competing factors. The approach was taken from Cumming v Dansen [1942] All ER 653.
4. The judge was entitled to consider the prolonged history of serious nuisance, the uncertainty of the tenant overcoming his alcohol problems, breaches of earlier undertakings, the likely return of an associated person whose conduct had contributed to the nuisance, and the risk that a suspended order would not adequately protect the neighbours.
5. The judge had also properly considered the severe consequences of immediate possession, including probable homelessness and the possible loss of entitlement to rehousing. The balancing exercise was therefore not flawed, and the Court of Appeal had no basis to interfere with the exercise of discretion.

Order: application dismissed. Detailed assessment of the defendant’s costs.

• Court of Appeal (Civil Division): The renewed application for permission to appeal from the Barnet County Court possession order was dismissed. The possession order remained immediate.