Manchester City Council v Finn

Under section 85(2) of the Housing Act 1985, the court may reconsider postponement of possession at any time before execution of a possession order. This jurisdiction remains available while an earlier postponement is running and may result in possession being ordered forthwith.

The court must determine any new grounds afresh under sections 84 and 85. Separate possession proceedings are unnecessary. The tenant must receive clear notice, must not be taken by surprise and must receive the same substantive protection as if a fresh claim had been brought.

A secure tenant was subject to a possession order which postponed possession while she paid current rent and weekly instalments towards arrears. She complied with those conditions, but subsequently committed offences involving stolen property kept at the dwelling.

The local authority applied in the existing proceedings to vary the order by relying on the later conduct. District Judge Needham dismissed the application for want of jurisdiction, holding that the court was functus officio. His Honour Judge Holman allowed the authority's appeal and held that section 85 of the Housing Act 1985 conferred jurisdiction.

The tenant appealed. The central issue was whether the court could reconsider or vary a postponement which remained in force and had not been breached, rather than requiring the landlord to serve a fresh notice and commence separate possession proceedings.

1. Appeal dismissed. Lady Justice Arden, with whom Lord Justice Ward agreed, held that section 85(2) of the Housing Act 1985 empowered the court to act at any time before execution of a possession order. The court could therefore make a new order while an earlier postponement remained in force, even if the tenant had complied with its conditions and the new order required possession forthwith.

2. The controlling statutory words were “at any time”. An order satisfied section 85(2) where it postponed possession beyond the date originally fixed for surrender. Liberty to apply while the order remained operative was implicit. No express reservation of liberty, express power of variation or new proceedings were required.

3. The Act was to be construed purposively so that its protections remained workable. Requiring a landlord to obtain a second and potentially inconsistent possession order would create unnecessary procedure and expense without materially improving the tenant's protection. The approach in Sheffield City Council v Hopkins [2002] 1 HLR 12 and Burrows v Brent London Borough Council [1996] 1 WLR 1448 supported that construction.

4. Lord Justice Ward added that the court must judge the new case afresh on its merits. It must decide under section 84 whether possession on the new ground is reasonable and then exercise the section 85 discretion whether to postpone possession. Any variation of the existing order is the procedural means of giving effect to that fresh exercise of statutory power.

5. The existing proceedings must afford the tenant equivalent substantive safeguards. The tenant must receive clear notice of the allegations and must not be taken by surprise. The court must apply sections 84 and 85 as it would in a fresh claim, observe the policy of evicting a secure tenant only following a serious breach when reasonable, and deal with the application proportionately.

6. The matter was remitted to District Judge Needham for determination of the local authority's application. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The tenant's appeal was dismissed unanimously. The court upheld the finding that jurisdiction existed and remitted the authority's application to District Judge Needham for determination.

2. Manchester County Court, His Honour Judge Holman: The local authority's appeal was allowed. The judge held that section 85 of the Housing Act 1985 permitted the court to entertain the application in the existing proceedings.

3. Manchester County Court, District Judge Needham: The local authority's application was dismissed because the court was considered functus officio after making the possession order.