New Charter Housing (North) Ltd v Ashcroft

Under Ground 14 of Schedule 2 to the Housing Act 1988, possession may be ordered for nuisance or annoyance caused by any person residing in or visiting the dwellinghouse. The tenant need not have been personally at fault. Whether to suspend a discretionary possession order requires a broad assessment of all relevant circumstances, including the prospects of future breaches, the tenant’s willingness and ability to control the conduct, family hardship, the interests of neighbours and the practical difficulty of proving further breaches. A suspension should not be granted merely to provide an opportunity for future improvement where the evidence supplies no sound basis for expecting it.

New Charter Housing (North) Ltd sought possession of a secure tenancy held by Ruth Ashcroft. The claim arose from extensive nuisance, intimidation and anti-social behaviour by her 17-year-old son, who was also made subject to an Anti-Social Behaviour Order and later detained for breach of it.

The Tameside County Court found Ground 14 of Schedule 2 to the Housing Act 1988 made out. It ordered possession but suspended the order for 12 months. The landlord appealed, arguing that the judge had misdirected himself and had failed to give proper weight to the lack of any realistic prospect of improvement and to the difficulties faced by neighbours and witnesses. The central issue was whether suspension was a proper exercise of discretion.

Appeal allowed. Lord Justice Potter gave the leading judgment. Lord Justice Latham and Lady Justice Arden agreed. The possession order was set aside and replaced by an order giving the claimant possession six weeks from the date of judgment, with costs.

1. Ground 14 of Schedule 2 to the Housing Act 1988 concerns conduct by the tenant or by any person residing in or visiting the dwellinghouse. The absence of personal fault by the tenant was therefore no bar to possession. This was consistent with Kensington and Chelsea Royal London Borough Council v Simmonds [1998] 29 HLR 507.
2. The discretion to suspend possession under section 85(2) and (3) of the Housing Act 1985 is broad and must be exercised by considering all relevant circumstances existing at the hearing. The Court of Appeal should interfere only where an irrelevant matter has been considered, a relevant matter omitted, or the decision is plainly wrong or otherwise demonstrates a mis-exercise of discretion. The same approach applied under section 100(2) and (3) of the Rent Act 1977.
3. The likelihood of future breaches was material. The judge was not optimistic about the son’s conduct after release, yet suspended possession solely to give the tenant an opportunity to demonstrate future control. His own findings showed no sound basis for that opportunity: she had not responded to the proceedings, had made a threat concerning the neighbours and had expressed no intention to control her son’s conduct.
4. The judge also failed properly to account for the interests of neighbours and the difficulty of proving future breaches where witnesses had left or feared reprisals. Those considerations were important in Camden City Council v Lowe [2001] 33 HLR 583. The approach in West Kent Housing v Davies [1999] 31 HLR 415 did not assist because that case involved a real prospect that the offending family had learned its lesson.

• Court of Appeal (Civil Division): [2004] EWCA Civ 310. Appeal allowed. The suspended possession order was replaced by an order for possession six weeks from judgment.
• Tameside County Court: On 19 August 2003, His Honour Judge Armitage QC made an order for possession under Ground 14 of Schedule 2 to the Housing Act 1988, suspended for 12 months subject to conditions.