Raglan Housing Association Ltd. v Fairclough

Ground 14(b)(ii) of Schedule 2 to the Housing Act 1988 is not confined to conduct occurring during the current tenancy. It applies where a tenant is convicted of an indictable offence committed in or in the locality of the dwelling, even if the conduct preceded that tenancy. The ground addresses the continuing impact on a locality of serious antisocial conduct. It is only a threshold for the court’s discretion. Possession may be ordered under section 7(4) only if it is reasonable in all the circumstances. Parliamentary material cannot be used to construe a provision unless the conditions in Pepper v Hart are met, including ambiguity, obscurity or literal absurdity.

A housing association sought immediate possession of an assured tenancy. The tenant had been convicted of offences involving indecent photographs of children. The offences had been committed while he occupied a nearby cottage under an earlier tenancy, but his conviction occurred after he had transferred to the dwelling in issue.

The Southampton County Court held that Grounds 12 and 14 of Schedule 2 to the Housing Act 1988 were established and that possession was reasonable. Permission to appeal was granted only on grounds concerning the construction of Ground 14(b)(ii). The central issue was whether that ground applied where the offence was committed before the tenant began the particular tenancy.

1. The appeal was dismissed unanimously. Lord Justice Moore-Bick’s reasons were agreed by Lord Justice May and adopted by Lord Justice Chadwick, subject to Chadwick LJ’s additional observation on an issue left undecided.
2. Ground 14(b)(ii) applies where the tenant has been convicted of an indictable offence committed in, or in the locality of, the dwelling. Its language and purpose do not require the acts constituting the offence to have occurred during the current tenancy. The ground is directed at the presence in the locality of persons whose past conduct demonstrates a potential seriously adverse effect on neighbours’ quality of life.
3. The contrast with Ground 14(b)(i) did not require a different construction. Paragraph (b)(i) extends to persons residing in or visiting the dwelling, as well as the tenant. It was therefore not necessarily confined to use while the person was tenant under the current agreement. The court did not decide whether either limb requires the conviction, rather than the underlying conduct, to occur during the tenancy. Moore-Bick LJ was provisionally inclined to that view; Chadwick LJ was not.
4. Schneiders & Sons Ltd v Abrahams [1925] 1 K.B. 301 did not bind the court on the temporal issue. It assumed occupation during the relevant tenancy, but the possibility of offending use before the tenancy began was not in issue.
5. Ground 14 establishes only a precondition to the discretionary power under section 7(4) of the Housing Act 1988. The court must still decide whether possession is reasonable, having regard to the past, continuing and likely future effects of the conduct on people in the locality.
6. The court declined to consider Parliamentary material. The first condition in Pepper v Hart [1993] A.C. 594 was not met: Ground 14(b)(ii) was neither ambiguous nor absurd on its ordinary reading.

• Court of Appeal (Civil Division): dismissed the tenant’s appeal and affirmed the immediate possession order: [2007] EWCA Civ 1087.
• Southampton County Court: His Honour Judge Burford Q.C. held that Grounds 12 and 14 were established and ordered immediate possession.