Sandwell MBC v Hensley

A court deciding whether to suspend a possession order against a secure tenant who has committed criminal offences at the property must exercise the broad statutory discretion. A conviction does not create a universal requirement for exceptional circumstances. The seriousness and repetition of the offending nevertheless carry substantial weight.

Suspension requires cogent evidence providing a sound basis for hope that the offending will cease. Mere submissions, unsupported by evidence and contradicted by the tenant’s attitude and record, are insufficient. The court may also consider the interests of local residents and the housing authority’s responsibility to manage social housing properly.

A secure tenant repeatedly committed cannabis-related offences at his council property. Following the discovery of a substantial cannabis-growing operation, the council sought possession under Part 1 of Schedule 2 to the Housing Act 1985. The district judge found that possession was reasonable but suspended the order for two years, principally because no further breach had been proved since the latest offence.

The council appealed from the Birmingham County Court. The sole issue was whether the district judge had properly exercised the discretion under section 85 to suspend the possession order rather than grant immediate possession.

1. Appeal allowed. The district judge’s exercise of discretion was flawed. The Court of Appeal exercised the discretion afresh and made an outright possession order.

2. Gage LJ held that possession proceedings concerning a secure tenancy involve three stages under the Housing Act 1985: establishment of a statutory ground, determination that possession is reasonable, and determination whether possession should be suspended or postponed. Only the third stage was disputed.

3. A tenant’s conviction does not invariably require exceptional circumstances before an order may be suspended. City of Bristol v Mousah [1997] 30 HLR instead emphasised the gravity of a tenancy breach involving criminal conduct. The seriousness and repetition of the offences increase the weight against suspension. Suspension should be ordered only where cogent evidence provides a sound basis for hope that the conduct will cease.

4. The district judge placed excessive weight on the absence of further offending after 2005. She gave insufficient weight to the substantial cannabis-growing operation, the repeated offences at the property, the conviction for supply, and the tenant’s dismissive attitude. Counsel’s assertion that the tenant had turned over a new leaf was unsupported by oral evidence. Punishment in the criminal court was irrelevant as punishment, although an extant suspended sentence and supervision order could provide some short-term deterrence.

5. The council’s responsibility to manage social housing and keep its properties free from serious unlawful activity was a further relevant factor. There was no cogent evidence giving real hope that the tenant had mended his ways. An outright order was therefore justified.

6. Arden LJ agreed and added that future conduct was not the sole consideration. The court could consider effects on the locality and on the housing authority. Serious, repeated drug offending would normally require a strong case to resist immediate possession, and a stay in such a case was likely to be exceptional.

7. Arden LJ further considered, without argument from the parties, that Kay v Lambeth [2006] UKHL 10 ordinarily precluded a separate Article 8 assessment when deciding whether possession should be immediate or suspended. The Chancellor agreed with Gage LJ but expressly made no observation on Article 8.

1. Court of Appeal (Civil Division): Allowed the council’s appeal and replaced the suspended possession order with an outright order for possession: [2007] EWCA Civ 1425.
2. Birmingham County Court: District Judge Maughan made a possession order on 13 November 2006, suspended for two years on condition that the tenant complied with the tenancy agreement.