PB Investments Ltd. v McInnes

Under section 98(1) of the Rent Act 1977, possession of a protected tenancy requires suitable alternative accommodation and a reasonable possession order. Suitability is assessed under Part IV of Schedule 15, but reasonableness requires consideration of all the circumstances, including comparative accommodation and the tenant’s reasons for resisting a move. An appellate court should read the trial judgment as a whole and will not interfere where relevant matters were considered. There is no absolute rule against debarring a tenant from defending possession proceedings, although appropriate participation must remain possible. The security-of-tenure issue was resolved by consent through a direction for a protected tenancy under the Housing Act 1988. The appeal was dismissed.

The respondent landlord sought possession of the appellant’s protected tenancy under section 98(1) of the Rent Act 1977 to enable redevelopment. The appellant’s defence and counterclaim had been struck out after she failed to comply with an unless order concerning access to medical records. HHJ Holman found that 13 Birch Tree Close was suitable alternative accommodation under one statutory limb, although it was not reasonably suitable as to extent and character under another, and concluded that possession was reasonable.

The Court of Appeal considered whether the judge had taken the comparative suitability of the properties into account, whether an assured tenancy afforded equivalent security of tenure, and whether the appellant’s debarment caused a serious irregularity in the conduct of the trial.

May LJ gave the judgment, with Hughes LJ and Chadwick LJ agreeing.

1. The statutory question under section 98(1) of the Rent Act 1977 required both suitable alternative accommodation and a reasonable possession order. The statutory criteria for suitability were found in Part IV of Schedule 15.
2. The judge was required to consider all the circumstances when assessing reasonableness. That included the comparative suitability of the two properties and the obvious reasons why the appellant did not wish to move. Reading the judgment as a whole, it was clear that those matters had been considered. The Court of Appeal therefore found no error. In any event, it would have reached the same conclusion on a fresh assessment of the circumstances.
3. The issue whether the assured tenancy offered reasonably equivalent security under paragraph 4(1)(b) of Schedule 15 was not decided. The respondent consented to a direction under section 34(1)(c)(iii) of the Housing Act 1988 that the appellant should receive a protected tenancy at a rent of £50 per week.
4. There was no statutory jurisdiction to entertain an appeal against the refusal of permission to appeal the debarring order. The submission that a tenant could never be debarred from defending possession proceedings was rejected in its absolute form. Such an order could be appropriate in an exceptional case, although the court recognised that the extent of the order might raise proportionality concerns.
5. The reformulated challenge to the conduct of the trial also failed. The trial judge was bound by the debarring order but had allowed the appellant to make relevant interventions and had considered the principal matters capable of being advanced on her behalf. There was no real prospect of success.

Permission to amend the appellant’s notice and permission to appeal on the three new issues were refused. The limited appeal was formally dismissed. The possession order was varied by consent and enforcement was postponed until 25 July 2007.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 666, permission to amend the appellant’s notice and permission to appeal on the three new issues were refused. The limited appeal was formally dismissed, with the possession order varied by consent.
• Manchester County Court: HHJ Holman refused permission to appeal against the debarring order, found suitable alternative accommodation available, concluded that possession was reasonable, and made a possession order.