Porter v Shepherds Bush Housing Association

A suspended possession order may terminate a secure tenancy when its payment conditions are breached, even though later payment of arrears prevents enforcement of the order. Later payment does not automatically revive the tenancy. Under the Housing Act 1985, section 85(4) cannot be used unless the order’s conditions have been complied with, and section 85(2) cannot be used once the order is no longer enforceable. The Court of Appeal followed the later authorities rather than Payne v Cooper. CPR 3.1(2)(a) could not assist by retrospectively rewriting a valid statutory order. The Article 8 argument did not alter the result. The appeal was dismissed unanimously.

The appellant had held a secure tenancy since 1983. A suspended possession order was made in 1997 after rent arrears arose, and the tenancy terminated when its conditions were breached. A further suspension relating to the possession warrant was made in 2000. The arrears were eventually paid in January 2006.

The appellant applied under section 85(4) of the Housing Act 1985 to discharge or rescind the order and revive the tenancy. District Judge Nicholson dismissed the application, and His Honour Judge Simpson dismissed an appeal. The Court of Appeal considered the conflict between Payne v Cooper and the later Housing Act authorities, the possible use of CPR 3.1(2)(a), and the effect of Article 8. The central issue was whether the tenancy or possession order could be revived after late payment of the arrears.

1. Appeal dismissed unanimously. The secure tenancy ended when the appellant failed to comply with the conditions of the suspended possession order. Later payment of the arrears made the order no longer enforceable by warrant, but did not automatically revive the tenancy.
2. Under sections 82(2) and 85(2)–(4) of the Housing Act 1985, the conditions referred to in section 85(4) were the conditions attached to the possession order. Since those conditions had not been complied with, the appellant could not seek discharge or rescission under section 85(4). Once the order had ceased to be enforceable, section 85(2) could not be used to postpone possession. The resulting status of a tolerated trespasser was an acknowledged but unsatisfactory consequence of the statutory scheme.
3. The court chose to follow the later decisions in Marshall v Bradford MDC, Swindon BC v Aston and London & Quadrant Housing Trust v Ansell rather than Payne v Cooper. Pill LJ considered Payne concerned with converting an unconditional possession order into a conditional order, whereas section 85 imposed payment conditions as part of the statutory scheme. Longmore LJ also regarded Payne as distinguishable because of the different statute, the absence of an equivalent to section 82(2), and the express use of the word discharge in the order. Sedley LJ thought Payne raised a substantial question of principle, but agreed that the later jurisprudence had to be followed unless displaced by a higher court.
4. Pill LJ held that CPR 3.1(2)(a) did not permit the court to rewrite a valid statutory possession order by replacing regular instalments with a later lump-sum payment. The proposed step was not case management and no material change had made the original order misconceived. Sedley LJ left the ultimate scope of the power open. Longmore LJ considered that a jurisdiction to vary might exist in theory, but refused a late remission because no application had been made to the District Judge and further evidence would be required.
5. Pill LJ concluded that Article 8 either was not engaged while the appellant retained exclusive occupation without possession proceedings, or, if engaged, was compatible with the construction in Marshall and Aston. Sedley LJ considered the Human Rights Act 1998 could not assist the present claim because of its temporal operation. Longmore LJ expressed no opinion because the issue was academic on the appeal.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 196, dismissed the second appeal.
2. West London County Court: His Honour Judge Simpson dismissed the appellant’s appeal from District Judge Nicholson’s dismissal of the section 85(4) application.
3. District Judge: District Judge Nicholson dismissed the application to discharge or rescind the suspended possession order.