London Borough of Lambeth v Debrah

When deciding whether to stay or suspend execution of a possession order, the court has an unrestricted discretion, exercised judicially and with particular reference to the future. The matters which legislation requires the court to consider when making the possession order may also be relevant to the stay decision because the two decisions are connected. The court must evaluate the future risk of renewed nuisance, weighing the tenant’s rehabilitation and current conduct against the seriousness and likely consequences of recurrence. The absence of a definite prediction of reoffending does not prevent an outright order where the evidence gives the judge legitimate concern about future conduct. Appellate intervention is not justified merely because a different weight might have been given to the factors.

The tenant held a secure tenancy of premises in Lambeth. The local authority obtained a possession order under ground 2 in Schedule 2 to the Housing Act 1985, based on rent arrears and anti-social behaviour associated with drug use and nuisance. The tenant did not challenge the possession order itself. He sought permission to appeal against the county court judge’s refusal to stay or suspend execution.

The judge considered the tenant’s claimed rehabilitation, the absence of alleged misconduct after April 2007, the effect of the past nuisance on neighbours, and the risk of recurrence. The central issue was whether the judge had erred in law by considering the statutory factors relevant to possession, and whether he had properly balanced the competing interests when refusing a stay.

1. Application refused. The court dismissed the application for permission to appeal. The challenge concerned only the refusal to stay or suspend execution of the possession order.
2. The discretion whether to grant a stay was unrestricted, although it had to be exercised judicially. Manchester City Council v Higgins [2005] EWCA Civ 1423 established that the discretion should be exercised with particular reference to the future.
3. Section 85A of the Housing Act 1985 directly governed the possession order and required consideration of the effect of the nuisance or annoyance on persons other than the tenant, together with the matters in section 85A(2). Those considerations were not excluded when the court later considered a stay. The possession decision and the stay decision were connected, and it would be extraordinary to require such matters to be ignored at the later stage.
4. The judge was entitled to assess the tenant’s character and the risk of recurrence. The absence of misconduct after April 2007, the unbreached undertaking, and evidence of rehabilitation were relevant, but they were not determinative. The judge had considered the tenant’s interests and the desirability of rehabilitation, while also evaluating the serious past nuisance, neighbours’ anxiety and the risk that drug use might restart.
5. The complaint that insufficient weight had been given to rehabilitation and recent good behaviour was a challenge to the weight of the evidence and the exercise of discretion. The judge’s conclusion was one he was entitled to reach, so there was no realistic prospect of appellate success.
6. The court did not decide the wider proportionality and Article 8 issue. Sheffield City Council v Shaw [2007] EWCA Civ 42 was noted, but the point was accepted to add nothing on these facts and was reserved for argument in light of Kay v Lambeth [2006] UKHL 10.

• Court of Appeal (Civil Division): refused permission to appeal against the Lambeth County Court’s order dated 15 August 2007, which made an order for possession and refused to stay or suspend its execution.