Surrey Heath Housing Association v Kingsdon & Anor

On a renewed application for permission to appeal against an immediate possession order under ground 14 of Schedule 2 to the Housing Act 1988, an arguable appeal was shown where the lower court may not have properly considered a substantial abatement of nuisance. That history was relevant both to whether the conduct was likely to continue and to whether a suspended order was more reasonable than an outright order. The court did not finally determine whether indirect conduct or sincerely held complaints should be assessed objectively. Those grounds did not justify permission because they were unlikely materially to affect the result. Permission was also refused on the disability-discrimination ground.

A registered social landlord obtained an immediate unconditional possession order against two disabled tenants under ground 14 of Schedule 2 to the Housing Act 1988, relying on conduct said to cause nuisance or annoyance to neighbouring owner-occupiers. The county court judge also considered the Disability Discrimination Act 1995, including the asserted need to protect the neighbours’ health and wellbeing.

The tenants renewed an application for permission to appeal after Tuckey LJ had refused permission on the papers. They challenged the relevance of indirect complaints, the treatment of sincerely held complaints, the finding that nuisance was likely to continue, the choice of an immediate rather than suspended order, and the disability-discrimination analysis. The central issue was whether the significant abatement during 2006 made the continuation finding and the form of possession order arguable.

Permission granted in part. The court was dealing with permission, not the merits of the substantive appeal.

1. The conduct relied on under ground 14 was at least substantially capable of amounting to nuisance or annoyance. Conduct having an indirect effect, such as invoking an authority responsible for investigation, might also be relevant. The court did not finally resolve that issue.
2. The suggestion that complaints honestly regarded as justified by persons suffering from mental-health difficulties should be assessed by an objective test was arguable, but permission was refused on that point because resolving it was unlikely to remove enough of the conduct to affect the result.
3. The substantial point concerned the absence of any complained-of incident during 2006. That abatement was potentially relevant to whether the nuisance was likely to continue and to whether reasonableness required a suspended possession order rather than an immediate unconditional order. Reasonableness was central to the jurisdiction. The lower court had considered extensive psychiatric, medical and other evidence, but it was arguable that it had failed to give proper weight to the abatement history and the alternative form of order.
4. The disability-discrimination challenge did not warrant permission. The court found no sufficient arguable basis for disturbing the judge’s consideration of the statutory issues.

Permission was refused on grounds 1 and 4. Permission was granted on ground 2 and on an amended version of ground 3 confined to the 2006 abatement. The stay was continued pending the outcome of the appeal.

• Court of Appeal (Civil Division): On the renewed application, permission was refused on grounds 1 and 4 and granted on ground 2 and an amended version of ground 3: [2007] EWCA Civ 562.
• Aldershot & Farnham County Court: His Honour Judge T Milligan made an immediate unconditional possession order under ground 14 of Schedule 2 to the Housing Act 1988.
• Earlier permission decision: Tuckey LJ refused permission on the papers.