Ashiana Housing Association v Ali & Anor

In possession proceedings based on serious anti-social conduct, the question whether it is reasonable to make a possession order is distinct from the later question whether execution should be suspended. Grave racial harassment and its effect on victims may justify possession even where no further incidents have occurred. Passage of time, ill health and other personal circumstances must be weighed, but do not necessarily make possession unreasonable. Suspension may provide the proportionate middle course between doing nothing and immediate possession. An appellate court will not treat the decision as perverse merely because the first-instance judge did not explain every step in detail where the relevant factors were considered.

Ashiana Housing Association sought possession of accommodation occupied by Mr and Mrs Ali after a serious racially connected attack and harassment on neighbouring residents. The claims relied on grounds 12 and 14, and those grounds were admitted. The central issue was whether possession was reasonable, having regard to the passage of more than two years, the absence of further incidents, Mr Ali’s poor health and Mrs Ali’s non-involvement in the conduct charged.

The Oldham County Court made a possession order suspended for 18 months. Permission to appeal was refused below. The applicants then challenged the decision, principally arguing that it was perverse and unreasonable to make a possession order without further findings of anti-social behaviour or a finding of future risk. They also relied in the papers on an alleged failure to distinguish the reasonableness of making an order from the question whether its execution should be suspended.

1. Application refused. The court rejected the challenge to the reasonableness of the possession order. The admitted grounds permitted the court to consider whether possession should be ordered, but the making of that order remained subject to reasonableness.
2. The court treated the decision whether to make a possession order as distinct from the later decision whether to adjourn proceedings or stay, suspend or postpone execution under section 9 of the 1988 Act. The transcript showed that the county court judge had made the necessary prior decision that possession was reasonable. He had then selected a suspended order as the appropriate relief.
3. The incident was exceptionally serious and involved racial harassment. Its effect on the victim and her family was substantial: they had left their home because they were frightened and felt unsafe. Doing nothing was not a realistic option. Given the gravity of the conduct, the judge would have been entitled to make an immediate possession order.
4. A suspended possession order was nevertheless a reasonable middle course. The judge considered the factors favouring the applicants, including the time since the incident and Mr Ali’s health. The absence of further incidents did not require a different result because the victim had left. The order also accommodated Mr Ali’s health by allowing the matter to be brought back before the judge.
5. The decision was not perverse merely because the judge had not articulated every reason in full. The transcript demonstrated that he had addressed the relevant factors and reached a permissible balance between the defendants’ circumstances and the seriousness and consequences of the conduct.

1. Court of Appeal (Civil Division): In [2002] EWCA Civ 1899, the application for permission to appeal was refused. A detailed assessment of the applicant’s Community Legal Services Funding certificate was ordered.
2. Oldham County Court: His Honour Judge Tetlow made a possession order suspended for 18 months after finding that possession was reasonable.