Royal Borough of Greenwich v Tuitt

In assessing whether possession of a secure tenancy is reasonable on anti-social behaviour grounds, the court must focus on the effect of the nuisance or annoyance on other people. It must consider all relevant circumstances in a broad, common-sense way, including the tenant’s responsibility for the conduct. A tenant’s lack of control over the person responsible is relevant but does not, as a matter of principle, prevent an outright or suspended possession order. The court must assess the risk of recurrence, the tenant’s efforts to prevent further misconduct and the likely continuing effect on neighbours. An appellate court should intervene only for a material legal or evaluative error, or a perverse conclusion.

The respondent was the secure tenant of a council property. Her son, who lived with her, was found to have committed repeated acts of anti-social behaviour, including an indictable offence causing serious injury to a caretaker. The County Court, sitting at Woolwich, made an order for possession under grounds 1 and 2 of Part I of Schedule 2 to the Housing Act 1985 and refused to suspend it.

The appeal challenged the findings that possession was reasonable and that suspension was inappropriate. The respondent relied on her lack of personal fault, alleged improvement in her son’s behaviour and the asserted absence of sufficient evidence of numerous incidents.

The appeal was dismissed unanimously. Lord Justice Vos gave the leading judgment. Lord Justice Treacy and Lord Justice McCombe agreed.

1. Under sections 84(2)(a) and 85A of the Housing Act 1985, the reasonableness assessment focuses on the effect of the nuisance or annoyance on other persons. The court must consider all relevant circumstances in a broad, common-sense way. The tenant’s responsibility for the nuisance remains relevant, particularly where the tenancy agreement imposes contractual obligations concerning household conduct.
2. The questions whether to make a possession order and whether to suspend it are distinct. The absence of personal fault is not a complete answer. The approach in Portsmouth City Council v Bryant [2000] 32 HLR 906 required contextual consideration. The principle that inability to control the nuisance-maker could bar possession as a matter of principle had been rejected in Knowsley Housing Trust v McMullen [2006] HLR 43.
3. The approach in Newcastle upon Tyne County Council v Morrison [2000] 32 HLR 891 was applicable. Lack of control may assist a tenant concerning past breaches, especially where the tenant has made genuine efforts to stop the nuisance. It may assist the landlord in seeking an outright or suspended order where the nuisance-maker remains, or is expected to remain, in the property.
4. The District Judge was entitled to rely on the continuing risk shown by repeated misconduct, breaches of bail conditions, the son’s inability to control his temper, the tenant’s unsuccessful efforts and her failure to take a sufficiently firm line. The son’s apprenticeship and the different character of some later incidents did not outweigh that risk. The court also noted, without treating it as an independent ground of decision, the observation in Birmingham City Council v Ashton [2013] HLR 8 that the party seeking suspension should provide cogent evidence that anti-social behaviour would not recur.
5. The findings that the pleaded allegations were proved and that repetition remained possible were open to the District Judge. The appellate court found no ignored relevant factor, reliance on an irrelevant factor or perversity. The possession order was therefore sustainable and appropriately left unsuspended.

• Court of Appeal (Civil Division): [2014] EWCA Civ 1669. Permission to appeal was granted on paper by Aikens LJ. The appeal was dismissed unanimously.
• County Court sitting at Woolwich: District Judge Beattie made an order for possession on 27 November 2013 under grounds 1 and 2 of Part I of Schedule 2 to the Housing Act 1985 and refused to suspend the order.