Knowsley Housing Trust (Respondents) v White (FC) (Appellant) Honeygan-Green (Respondent) v London Borough of Islington (Appellants) Porter (FC) (Appellant) v Shepherds Bush Housing Association (Respondents)

An assured tenancy governed by the Housing Act 1988 continues until the possession order is executed or the tenant gives up possession. Breach of a suspended order does not itself end that tenancy.

Under section 85 of the Housing Act 1985, a court may provide in advance for a possession order to be discharged when specified conditions are met. A secure tenant who later clears the arrears may still seek variation or discharge of an otherwise unenforceable order.

A possession order suspends a secure tenant’s existing right to buy. Discharge of that order retrospectively revives the secure tenancy and the right to proceed under the original right-to-buy notice.

These conjoined appeals concerned suspended possession orders made for rent arrears. Mrs White was an assured tenant whose preserved right to buy was disputed after she breached the order. Mr Porter was a secure tenant who cleared his arrears but was refused discharge of an order which had become unenforceable. Mrs Honeygan-Green was a secure tenant whose possession order was discharged after she cleared the arrears, but whose local authority landlord disputed the revival of her earlier right-to-buy claim.

The respective Court of Appeal decisions were [2007] EWCA Civ 404, [2008] EWCA Civ 196 and [2008] EWCA Civ 363. The principal questions were when an assured tenancy ends, the scope of the court’s powers under section 85 of the Housing Act 1985, and whether discharge of a possession order revives an existing right to buy.

1. Disposition. Lord Neuberger delivered the leading opinion. Lords Hoffmann, Walker and Brown agreed with his reasons. Lord Mance agreed with the disposition and substantially with the reasoning, subject to a qualification concerning compliance with conditions. The appeals in White and Porter were allowed. Islington’s appeal in Honeygan-Green was dismissed.

2. Assured tenancies. Per Lord Neuberger, sections 5 and 9 of the Housing Act 1988, read fairly and practically, mean that an assured tenancy continues until the possession order is executed or the tenant otherwise leaves. Neither the making of an outright order nor breach of a suspended order ends it. The contrary reasoning in Artesian Residential Developments Ltd v Beck was overruled. Mrs White had therefore remained an assured tenant throughout.

3. Secure tenancies. The House declined to reopen the established rule under sections 82 and 85 of the Housing Act 1985 that a secure tenancy may end when the possession order becomes operative. That rule had been acted upon extensively, had previously received the House’s approval, and Parliament had enacted prospective reform.

4. Proleptic discharge. Per Lord Neuberger, section 85 permits a court to direct in advance that a suspended possession order will be discharged when stated conditions are met. The provision should be construed flexibly, so as to reduce uncertainty and unnecessary applications. A majority also accepted that the conditions for discharge may differ from the strict conditions suspending enforcement. Lord Mance considered that section 85(4) required compliance, possibly substantial compliance, with the section 85(3) conditions unless those conditions had first been varied.

5. Late payment and variation. Conditions suspending enforcement ordinarily require precise compliance. A breach permits the landlord to seek a warrant, subject to the tenant’s right to apply for relief. Payment of all arrears does not deprive the court of jurisdiction under section 85(2). The contrary decision in Swindon Borough Council v Aston was overruled. Mr Porter’s application was remitted to the County Court.

6. Right to buy. Section 121(1) of the Housing Act 1985 suspends rather than extinguishes an existing right to buy while the tenant is obliged to give up possession. Discharge of the possession order retrospectively revives the secure tenancy and the right under the original section 122 notice. Mrs Honeygan-Green could therefore continue her purchase.

1. House of Lords: The appeals in Knowsley Housing Trust v White and Porter v Shepherds Bush Housing Association were allowed. The latter application was remitted to the County Court. Islington’s appeal in Honeygan-Green v London Borough of Islington was dismissed.
2. Court of Appeal: In White, the court dismissed the tenant’s appeal: [2007] EWCA Civ 404, [2007] 1 WLR 2897. In Porter, the court dismissed the tenant’s second appeal: [2008] EWCA Civ 196. In Honeygan-Green, the court allowed the tenant’s appeal: [2008] EWCA Civ 363.
3. High Court: In Honeygan-Green, Nelson J allowed Islington’s appeal from the summary judgment granted to the tenant.
4. County Courts: Mrs White’s application for a declaration was dismissed. Mr Porter’s application to discharge the possession order, and his first appeal, were dismissed. Mrs Honeygan-Green obtained summary judgment requiring the authority to give effect to her right to buy.