Birmingham City Council v Ashton

Where a court has found it reasonable to make a possession order for anti-social behaviour, suspension is a separate discretionary question. The tenant seeking suspension must provide cogent evidence that the behaviour will not recur, or is unlikely to recur. The court must assess future risk in light of past incidents, the tenant’s present condition, the reliability of proposed safeguards, and the likely consequences of repetition. A trial judge’s evaluation attracts appellate respect, but the Court of Appeal may intervene where the approach is flawed or material risks have not been properly assessed. The statutory factors concerning the effect of nuisance or annoyance on others remain highly relevant to the suspension decision.

Birmingham City Council obtained a possession order against the respondent secure tenant under grounds 1 and 2 of Schedule 2 to the Housing Act 1985, based on four incidents leading to criminal convictions. The county court found it reasonable to make the order but suspended its operation on conditions relating to compliance with the tenancy agreement and an injunction.

The Council appealed only against suspension. It argued that the judge had failed properly to assess the past, continuing and future effects of the anti-social behaviour, and had placed the evidential burden on the wrong party. The respondent relied on the judge’s assessment of his improved condition and on appellate restraint in discretionary decisions. The central issue was whether the suspension decision could be sustained.

Appeal allowed. The possession order itself was not challenged. The issue was remitted to the county court for reconsideration by a fresh judge, confined to whether the possession order should be suspended.

1. Section 85(2) of the Housing Act 1985 confers a broad discretion to stay or suspend execution of a possession order. The matters specified in section 85A(2), although expressly directed to the reasonableness of making an order on ground 2, are highly relevant to the suspension discretion.
2. The tenant seeking suspension must provide cogent evidence that the anti-social behaviour will not recur, or is unlikely to recur. The assessment is directed principally to future risk, while taking account of past conduct and its effects on others.
3. The county court had over-concentrated on the respondent’s current stability. It had not adequately assessed the history of lapses, the absence of evidence about the likelihood of continued abstinence, the different circumstances of returning to live alone in the flat, or the consequences of a fifth incident for neighbours who had already suffered four incidents.
4. A predicted 20–30 per cent risk over five years could not objectively be treated as low. The judge’s approach looked for additional reasons against suspension rather than requiring cogent evidence in favour of it.
5. Although appellate respect was required for the trial judge’s advantage in seeing the witnesses, intervention was justified because the decision resulted from an erroneous approach and inadequate assessment of future risk. The fresh suspension decision was remitted because the information before the trial judge was out of date.

• Court of Appeal (Civil Division): allowed the appeal against suspension of the possession order and remitted that issue to the Birmingham County Court for rehearing by a fresh judge.
• Birmingham County Court: His Honour Judge Owen QC made a possession order but suspended its operation on conditions. The decision’s citation is not stated in the judgment.