Swansea City & County Director Of Housing/Finance v Oben

After a possession order and judgment for rent arrears, a voluntary arrangement to pay the arrears does not ordinarily create a new tenancy or waive the possession order where the landlord merely accepts payment towards the judgment debt. Under section 85 of the Housing Act, the court retains discretion to suspend possession, but an appellate court will interfere only where the exercise is seriously wrong. A second appeal requires an important point of practice or principle, or another compelling reason. Sympathy for an evicted tenant cannot satisfy that threshold where the lower court properly exercised its discretion.

The application arose from a possession order made by District Judge Evans on 13 August 2001 when rent arrears were about £3,500. District Judge Lewis refused on 5 March 2002 to suspend execution of the order. His Honour Judge Hickinbottom dismissed the application to appeal on 30 April 2002. By the time of the Court of Appeal application, possession had been enforced.

The applicant argued that the Housing Department’s acceptance of a standing-order proposal to pay the current rent plus £4 weekly towards the arrears created a new tenancy or waived the possession order. He also argued that the discretion to suspend possession had been wrongly exercised. The central issues were whether the payment arrangement changed the legal relationship and whether there was an important point of practice or principle, or another compelling reason, for a second appeal.

The application for permission to appeal was dismissed.

1. Second appeal threshold. The application concerned a second appeal. The applicant therefore had to establish an important point of practice or principle, or some other compelling reason for the Court of Appeal to entertain it. His central argument proceeded on a false legal basis and disclosed no such point.
2. Effect of the payment arrangement. The August 2001 order included both possession and judgment for rent arrears. The Housing Department’s acceptance of £4 per week was an arrangement for discharging the judgment debt. It was not an offer and acceptance of a new tenancy. The authority had not waived the possession order or agreed to grant a new tenancy.
3. Suspension of possession. Section 85 of the Housing Act conferred a discretion to suspend possession. The court should consider proposals to discharge arrears carefully, including voluntary payments and the prospect of increased payments. Those matters did not require suspension where the arrears were substantial and would take many years to discharge at the proposed rate.
4. Appellate restraint. The exercise of discretion would not normally be disturbed unless seriously wrong. The judge had placed no undue weight on any factor and had weighed the relevant matters properly. His decision fell within the generous ambit of reasonable disagreement and disclosed no error warranting intervention. The allegation of racial bias was unsupported and was not pursued.

The formal order was that the application for permission to appeal was dismissed.

1. Court of Appeal (Civil Division): Application for permission to bring a second appeal dismissed.
2. Swansea County Court: His Honour Judge Hickinbottom dismissed the application to appeal against District Judge Lewis’s order on 30 April 2002.
3. Swansea County Court: District Judge Lewis dismissed the application to suspend execution of the possession order on 5 March 2002.
4. Swansea County Court: District Judge Evans made the possession order and judgment for rent arrears on 13 August 2001.