Manchester City Council v Higgins

When deciding whether to suspend a possession order made for anti-social behaviour, the court must focus principally on the future. Suspension requires a sound evidential basis for expecting the behaviour to cease. An existing anti-social behaviour order may provide adequate protection, but its existence is neither conclusive nor necessarily reassuring.

The discretion is unfettered but must be exercised judicially in the circumstances of the individual case. Particular weight must be given to the past, continuing and prospective effects of the nuisance on neighbours. An immediate possession order must be necessary and proportionate to protecting their rights and freedoms.

A secure tenant's son repeatedly harassed and assaulted neighbours and damaged their property. Injunctive relief, an anti-social behaviour order and intensive supervision failed to stop him. The Manchester County Court found breaches of the tenancy, held that possession was reasonable, but suspended the order for 18 months to allow time for the son's behaviour and the tenant's parenting skills to improve.

The council appealed only against suspension. The central issue was whether the recorder had a sound evidential basis for expecting improvement and had given sufficient weight to the protection of the neighbours.

1. Appeal allowed. The recorder had erred in suspending the possession order. The suspension was deleted and possession was ordered in 28 days. Ward LJ gave the leading judgment and Gage LJ agreed.

2. Sections 84 and 85 of the Housing Act 1985 involve two stages. The court first decides whether it is reasonable to order possession. Only then does it decide whether execution should be suspended. Factors may overlap, but the second stage has a greater focus on the future and on protecting neighbours against recurrence.

3. The power to suspend is unfettered, subject to judicial exercise in the circumstances of the particular case. Serious and persistent conduct sufficient to justify an anti-social behaviour order is strong, though not conclusive, evidence against continued possession. Suspension must rest on a sound basis for expecting the anti-social behaviour to cease. Previous unheeded warnings point against suspension, while genuine remorse, improved conduct and effective support may favour it.

4. Section 85A(2) of the Housing Act 1985 requires particular consideration of the past and continuing effect of nuisance on other people and the likely effect of repetition. It reflects the need to give adequate weight to neighbours. The recorder referred to their needs but could not have accorded them the weight they merited.

5. The recorder's hope that the son's conduct would improve was unsupported by the evidence. Warnings, an injunction, an anti-social behaviour order and intensive supervision had all failed. The continuing anti-social behaviour order therefore provided no sufficient protection. The tenant's significant personal responsibility, indifference and lack of remorse reinforced that conclusion.

6. Having regard to respect for the home under article 8 of the European Convention on Human Rights, the ultimate question was whether immediate possession was necessary and proportionate to protecting the rights and freedoms of neighbours. In the absence of remorse or a well-founded expectation of improvement, withholding immediate possession was disproportionate.

1. Court of Appeal (Civil Division): The council's appeal was allowed. The suspension was deleted and possession was ordered in 28 days: [2005] EWCA Civ 1423 .
2. Manchester County Court: Recorder Main QC found breaches of the secure tenancy and held that possession was reasonable, but suspended the possession order for 18 months on conditions.