Webb v London Borough of Wandsworth

In a secure-tenancy possession claim, reasonableness must be assessed by reference to proved facts and all materially relevant circumstances. An unproved allegation of a past breach has no evidential weight merely because the civil court applies a different standard of proof from a criminal court. A postponed or suspended possession order cannot be used to pressure a third party to change conduct beyond the tenant’s influence or control. The tenant’s circumstances and household interests may be relevant to reasonableness and proportionality, including under Article 8. An anti-social behaviour order may support possession where the underlying nuisance was sufficiently serious, although its effect depends on the circumstances.

The appellant was a secure tenant of the respondent local authority. The County Court made a postponed possession order under Housing Act 1985, section 84, relying on breaches of tenancy obligations and the conviction of the appellant’s resident son for an indictable offence in the locality.

The order was conditional on the son not residing at the property and on compliance with anti-nuisance conditions. By the appeal hearing, the son had moved elsewhere, but allegations that he had breached an anti-social behaviour order had resulted in acquittals or discontinuance and had not been proved in the possession proceedings. The central issue was whether the judge had lawfully assessed reasonableness.

1. Appeal allowed. The postponed possession order was set aside. Although grounds under Part 1 of Schedule 2 to the Housing Act 1985 existed, section 84(2)(a) still required the court to consider whether possession was reasonable.
2. The assessment of reasonableness is more accurately described as an exercise in judgment than discretion. Serious and persistent anti-social conduct sufficient to justify an anti-social behaviour order may be strong, though not conclusive, evidence supporting possession. An anti-social behaviour order may support postponement or dismissal in some cases, but may also demonstrate the seriousness of the underlying nuisance and the importance of community protection: see Knowsley Housing Trust v McMullen [2006] HLR 843 and Manchester CC v Higgins [2006] HLR 261.
3. A possession order must not be made for the purpose of bringing pressure to bear on a third party whose conduct is beyond the tenant’s influence or control. The judge’s reference to the possible effect of the order on the son was permissible in considering postponement and did not establish an impermissible purpose.
4. The decisive error was treating unproved allegations that the son had breached the anti-social behaviour order as relevant to reasonableness. The fact that charges had been brought, that one prosecution was discontinued for want of a witness, and that other charges ended in acquittal did not prove the alleged breaches. The civil standard of proof did not permit reliance on the mere possibility that they had occurred. The principle was illustrated by In Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35.
5. Article 8 of the Convention on Human Rights reinforced the relevance of the tenant’s personal circumstances and household interests. Sedley LJ doubted whether the judge had sufficiently addressed the children and grandchild, but the appeal succeeded on the evidential error. Applications for an extension of time and permission to adduce fresh evidence were withdrawn.

• Court of Appeal (Civil Division): allowed the appeal from the postponed possession order made by His Honour Judge Knowles in Wandsworth County Court on 9 October 2007 and set aside the possession order.