Friendship Care & Housing Association v Begum

Suspension of a possession order requires a forward-looking assessment. The court must have cogent evidence providing a sound basis for hope that the conduct underlying the order will cease. A proposed condition is insufficient where compliance is unrealistic and enforcement depends on later detection. Children’s best interests are a primary consideration in the proportionality assessment, but may be outweighed by serious offending, neighbourhood impact and the public interest in enforcing social-housing conditions. Where a defendant relies on homelessness or serious welfare consequences for children, supporting evidence must be put before the court. In its absence, the judge may assume that the local authority will comply with its statutory and regulatory duties.

This was an appeal by an assured tenant against refusal to suspend a possession order obtained by the social landlord. The order was made principally because her husband, the first defendant, had used the home for serious drug offending and breached tenancy conditions. The appeal challenged the judge’s assessment of a proposed condition excluding the husband from the property and alleged insufficient weight to the interests of the children.

The Court of Appeal considered whether the proposed condition supplied a sufficient basis for suspension under section 85 of the Housing Act 1985, and whether the children’s welfare and Article 8 proportionality required suspension or a remittal.

Appeal dismissed. Lord Justice Hooper gave the substantive judgment. The Chancellor of the High Court and Lord Justice Rafferty agreed.

1. Section 85 of the Housing Act 1985 requires a forward-looking assessment when suspension of a possession order is sought. There is no point suspending an order where breach is inevitable. The court must have cogent evidence providing a sound basis for hope that the antisocial behaviour will cease.
2. The judge was entitled to assess the proposed exclusion condition by reference to the defendants’ past conduct, credibility and practical ability to comply. The husband’s persistent drug offending and the appellant’s inability to prevent it meant that the judge lacked real confidence in voluntary compliance. Possible police monitoring, later possession proceedings and committal sanctions did not provide the necessary basis for hope. The conclusion was one the judge was entitled to reach.
3. In the Article 8 proportionality assessment, the children’s best interests had to be treated as a primary consideration. They could nevertheless be outweighed by the cumulative effect of other considerations. The judge had expressly considered the children’s circumstances, the seriousness of the offending, its adverse effect on the neighbourhood and the public interest in enforcing social-housing tenancy conditions. An outright order was proportionate because nothing less would do.
4. Where a defendant relies on immediate possession causing homelessness or serious interference with children’s welfare, evidence supporting that assertion must be placed before the court. In the absence of such evidence, the judge was entitled to assume that the local authority would comply with its statutory and regulatory duties. The judge was not required to make further enquiries.

The possession order therefore remained unsuspended and the appeal was dismissed.

• Court of Appeal (Civil Division): appeal from Birmingham Civil Justice Centre before His Honour Judge Worster; appeal dismissed: [2011] EWCA Civ 1807.