City West Housing Trust v Massey

Suspension of a possession order under section 9 of the Housing Act 1988 is a fact-sensitive discretionary decision. The court must be persuaded by cogent evidence providing a sound basis for real hope that the tenant will comply in future and that previous misconduct will cease or not recur. The focus is prospective. Relevant evidence may include external support, inspection conditions and the perceived risk of inspection, although the tenant must be willing to comply. Dishonesty is serious and may undermine assurances, but it is not an absolute bar. Appellate intervention is limited to recognised errors in the exercise of discretion. No rigid checklist is required.

These were second appeals concerning suspended possession orders made after police discovered cannabis cultivation in tenants’ homes. The tenants denied knowledge or responsibility and were found to have lied in whole or part. The district judges nevertheless suspended possession orders subject to conditions, including tenancy compliance and inspection rights.

In the City West appeal, the County Court dismissed the landlord’s appeal. In the Manchester appeal, the County Court allowed the landlord’s appeal, holding that the district judge could not rely on landlord inspections as evidence supporting future compliance. The Court of Appeal considered the proper appellate standard, the meaning of cogent evidence, the effect of dishonest evidence, and whether external monitoring could support the required hope of future compliance.

Arden LJ gave the judgment of the court, with Floyd and Sales LJJ agreeing.

1. Disposition. The City West appeal was dismissed. The Manchester appeal was allowed and the order of DJ Hayes was reinstated.
2. Appellate review. Suspension under section 9 of the Housing Act 1988 involves discretion. An appellate court may intervene only where the judge applied a wrong legal principle, reached a conclusion no reasonable tribunal properly directed could reach, took account of an irrelevant matter, or omitted a relevant matter. The question is not whether the appellate court would have reached the same conclusion.
3. Cogent evidence. The test stated in Sandwell MBC v Hensley [2008] HLR 22 requires persuasive evidence providing a sound basis for hope that previous conduct will cease or not recur. The assessment is directed to the future and does not require a cast-iron guarantee. Evidence need not come solely from the tenant. External support, landlord inspections or the real perception of inspection may be relevant, subject to the landlord’s limited resources and the reasonableness of the conditions.
4. Dishonesty and assessment. Lying does not create an absolute bar to a suspended order, although it may damage the tenant’s credibility and the reliability of future assurances. The court must make findings of fact and then exercise its discretion by reference to all relevant circumstances. No prescriptive checklist is required. The assessment should be broad and commonsensical, consistent with Cummings v Dawson [1942] 2 All ER 653 (CA).
5. Application. In City West, the district judge was entitled to accept that Ms Massey’s fear of her partner explained her dishonesty and to find a sound basis for future compliance through tailored conditions. In Manchester, the County Court wrongly excluded external monitoring from the assessment and therefore erred in setting aside the district judge’s order. Article 8 of the European Convention on Human Rights did not create a further issue because possession and suspension applications are viewed as a whole.

• Court of Appeal (Civil Division): In [2016] EWCA Civ 704, the City West appeal was dismissed and the Manchester appeal was allowed, with DJ Hayes’s suspended possession order reinstated.
• Manchester County Court and Family Court: HHJ Platts dismissed City West Housing Trust’s appeal against the suspended possession order.
• Altrincham County Court and Family Court: HHJ Armitage QC allowed Manchester and District Housing Association’s appeal and set aside the suspended possession order made by DJ Hayes.