Gallagher v Castle Vale Action Trust Ltd

Establishing a discretionary ground for possession does not itself justify an immediate eviction. Under the Housing Act 1985, the court must separately decide whether possession is reasonable and then which form of order is proportionate, including suspension or postponement. A judge must give adequate reasons for rejecting those less severe alternatives.

Article 8 requires the statutory assessment to respect the tenant’s home while protecting neighbours’ right to live in peace. An outright order requires a clear, proportionate necessity. The tenant’s role in the nuisance, ability to control visitors, current future risk and individual circumstances are material.

The tenant had occupied the property as a secure tenant since 1987. Her daughter and the daughter’s boyfriend, who had lived at or frequently visited the property, had committed offences and engaged in serious antisocial conduct causing substantial nuisance to neighbours.

The Birmingham County Court found Ground 2 in Schedule 2 to the Housing Act 1985 established and made an outright 28-day possession order. During the hearing, however, the daughter bought another home and intended to live there with her boyfriend.

The tenant appealed, contending that the recorder had not properly considered the reduced likelihood of future nuisance, a suspended order, and her Article 8 right to respect for her home. The central issue was whether an outright order remained reasonable and proportionate.

Disposition

The appeal was allowed. The outright order was varied to a possession order suspended for two years, conditional upon there being no further significant breach of clause 8 of the tenancy agreement. The Housing Action Trust had liberty to apply for permission to enforce the order if there were such a breach. If no breach occurred during the two years, the order would be discharged.

1. Blackburne J held that the unchallenged finding that Ground 2 was established, and the conclusion that it was reasonable to make a possession order, did not answer the separate question under section 85(2) of the Housing Act 1985: whether the order should be immediate, stayed, suspended or postponed. The recorder gave no adequate reason for choosing the outright order over the less severe alternatives. The Court could therefore exercise the power afresh.

2. The relevant circumstances showed that immediate possession was disproportionate. The tenant had lived in the home for about 15 years. The principal misconduct was that of her visitor and, to a lesser extent, her daughter, rather than her own. Her fault was principally an inability or unwillingness to prevent their conduct. The future risk had materially reduced because the daughter and her boyfriend no longer lived at the property.

3. Sedley LJ explained that section 3(1) of the Human Rights Act 1998 requires the statutory concept of reasonableness to be applied compatibly with Article 8 of the European Convention on Human Rights. An eviction engages respect for the home. It may be justified to protect neighbours’ right to live in peace, but the court must assess whether an immediate order is necessary to meet a pressing social need and proportionate, including in its effect on the tenant. Blackburne J’s reasoning was consistent with that approach.

4. Sedley LJ also held that section 77(6) of the County Courts Act 1984 bars an appeal on primary facts, but not, in a proper non-marginal case, appellate review of the assessment of statutory reasonableness. Schiemann LJ agreed with the proposed order and accepted that the recorder’s failure to explain the refusal of suspension required the Court to act afresh, while reserving wider human-rights questions not fully argued.

• Court of Appeal (Civil Division) Allowed the tenant’s appeal and substituted a two-year suspended possession order: [2001] EWCA Civ 944.
• Birmingham County Court Mr Recorder Cleary found Ground 2 established and made an outright 28-day possession order on 4 December 2000. A citation for that decision was not stated in the judgment.