London Borough of Barking and Dagenham v Bakare

When deciding whether to suspend a possession order for antisocial behaviour, the court must assess reasonableness and proportionality by reference to all relevant circumstances at the hearing. Particular regard must be given to the effect on other residents and the likely future effects of repeated conduct. The discretion to suspend is broad, but the court must focus on future behaviour and have a sound basis for expecting it to cease. On appeal, the question is whether the decision to order immediate possession was plainly wrong, not whether suspension remained legally available. A judge need not repeat an alternative protective package in the concluding paragraphs if the judgment as a whole shows that it was considered and adequately rejected.

The tenant appealed from an immediate possession order made by HHJ Platt in the Romford County Court in June 2011. The order followed findings that the tenant’s younger adult son had engaged in serious and escalating drug-related and antisocial conduct around the property, including conduct after the proceedings and breach of an antisocial behaviour order.

The tenant’s rent position had improved. She proposed conditions intended to keep her son away from the block and relied on her personal circumstances, including the risk of homelessness. The tenant accepted that possession could properly be ordered. The central issue was whether the judge had sufficiently considered that package and whether refusal to suspend the order was plainly wrong.

1. Appeal dismissed. The appellant accepted that a possession order was justified and challenged only the refusal to suspend it. The Court of Appeal held that the case fell within the judge’s proper discretionary range.
2. Under the Housing Act 1985, possession on a Schedule 2 ground requires the court to be satisfied that it is reasonable to make the order. In a ground 2 case, section 85A requires particular consideration of the effect, continuing effect and likely repeated effect of nuisance or annoyance on other persons. Section 85(2) and section 85(3)(b) confer a discretion to stay, suspend or postpone execution and to impose conditions.
3. The authorities did not establish a rigid rule. The court relied on Manchester City Council v Finn [2003] HLR 41 on the jurisdiction to determine ground 2 within existing possession proceedings. Manchester City Council v Higgins [2005] EWCA Civ 1423 required a future-focused assessment, consideration of all circumstances and a sound basis for expecting antisocial behaviour to cease. Knowsley Housing Trust v McMullen [2006] EWCA Civ 539 emphasised the fact-specific nature of these cases. Manchester City Council v Pinnock [2010] UKSC 45 underlined the relevance of proportionality.
4. The appellate question was whether the judge was plainly wrong. It was not whether suspension had been legally ruled out. The judge had expressly set out the tenant’s proposed package, her compliance with the earlier suspended order, the existing ASBO and her personal circumstances. Read as a whole, the judgment showed that those matters had been considered. The judge was not required to repeat the package in the final paragraphs.
5. The judge was entitled to attach decisive weight to the seriousness and escalation of the son’s conduct, further incidents after the hearing and draft judgment, breach of the ASBO, the tenant’s late practical response and the absence of remorse. His conclusion that there was no confidence that the behaviour would stop was directed to the future and justified the immediate order as proportionate, despite the tenant’s inability to control her son and the risk of homelessness.
6. Sir Andrew Morritt and Lord Justice Hughes agreed with Lord Justice McFarlane. Order: appeal dismissed.

• Court of Appeal (Civil Division): [2012] EWCA Civ 750. Appeal dismissed.
• Romford County Court: HHJ Platt made an immediate possession order in June 2011 after finding serious antisocial and criminal conduct by the tenant’s son.