Knowsley Housing Trust v McMullen

A tenant’s inability to control a household member who causes serious nuisance does not remove the court’s jurisdiction to make an outright or suspended possession order. It is a material consideration in the statutory assessment of reasonableness, together with the interests of neighbours, the history and gravity of the nuisance, and the prospect of recurrence.

An ASBO or comparable restraint against the nuisance-maker does not preclude possession proceedings under Housing Act 1988 ground 14. It may nevertheless affect whether the order should be outright, suspended, or adjourned. A condition of suspension may properly extend to the nuisance-maker’s conduct, even where compliance is not wholly within the tenant’s control. Normally a landlord may obtain a warrant without prior permission, but exceptional vulnerability may justify a requirement to seek permission on notice.

The claimant housing trust sought possession of the defendant’s assured tenancy under grounds 12, 13 and 14 of Part II of Schedule 2 to the Housing Act 1988. The claim concerned damage to the house and extensive anti-social conduct by the defendant’s adult son, Daniel, who lived with her.

The defendant had a significant intellectual disability and could not effectively control Daniel. Daniel had convictions, an ASBO, a licence, a curfew and electronic tagging. The Liverpool County Court made a possession order, suspended on terms that neither the defendant nor Daniel caused further nuisance.

The defendant appealed, contending that her disability and lack of control, and the existing restraints on Daniel, made the order or its terms unreasonable. She also contended that the landlord should have to obtain the court’s permission before applying for a warrant of possession.

1. Disposition. The appeal succeeded only to the extent that the suspended possession order was varied. Neuberger LJ, with Rix and Auld LJJ agreeing, upheld the possession order and its substantive terms, but required the landlord to obtain permission on notice before seeking a warrant.
2. Possession and reasonableness. Under the Housing Act 1988, nuisance by a person living with an assured tenant can found an outright or suspended possession order. The tenant’s inability to control that person is not a rule barring either form of order. It is an important factor in deciding reasonableness and the appropriate terms of suspension. The court rejected the suggestion that an outright order would almost always be unreasonable merely because the tenant was powerless to stop the nuisance.
3. Application to the facts. The county court was entitled to regard Daniel’s numerous, grave and prolonged acts of nuisance, their impact on neighbours, and the risk of repetition as justifying an order. A suspension limited to the defendant’s own conduct would have been inconsistent with the basis on which possession was justified. Making suspension conditional on Daniel’s good behaviour was rational, proportionate and preferable to an outright order.
4. ASBO and disability. An ASBO and other restraints overlap with, but are distinct from, possession remedies. They did not prevent a possession order, although they were relevant discretionary considerations. The unchallenged finding that Daniel’s conduct was not related to the defendant’s disability meant that the Disability Discrimination Act 1995 did not prevent the order. In any event, protection of neighbours could have supplied a health-and-safety justification.
5. Enforcement. The normal rule, reflected in [2002] 1 WLR 1537, is that routine execution of a suspended order does not require a further hearing. This was exceptional because of the defendant’s disability, the Official Solicitor’s involvement, and the ASBO and other restraints. The landlord must therefore apply on notice to the defendant and her litigation friend for permission before seeking a warrant, ordinarily giving about 14 days’ notice unless there is an emergency.

• Court of Appeal (Civil Division): By [2006] EWCA Civ 539, upheld the suspended possession order but varied it to require a prior, on-notice application for permission before a warrant of possession could be sought.
• Liverpool County Court: His Honour Judge Platts made a possession order on 17 June 2005, suspended while neither the defendant nor anyone residing with her caused nuisance or annoyance.