Teign Housing v Lane

On an appeal concerning discretionary possession proceedings, a tenant’s honest belief that alterations or conduct were authorised does not prevent a breach of tenancy. It may, however, be relevant to whether possession is reasonable and proportionate. The court must separately determine whether a possession ground is established, whether possession is reasonable in all the circumstances, whether any order should be suspended, and what conditions should apply. Where disability discrimination is raised, the court must consider the causal link between disability and conduct and whether eviction is a proportionate means of achieving a legitimate aim, including whether less drastic measures are available. An appellate court should not determine a fact-sensitive reasonableness issue where material findings have not been made; the proper course may be remission for retrial.

Teign Housing appealed against the dismissal of its possession claim concerning a flat occupied by Richard Lane. The claim relied principally on grounds 12 and 14 of Part II of Schedule 2 to the Housing Act 1988, alleging unauthorised alterations, nuisance, intimidation and other breaches. Mr Lane had a paranoid personality disorder and was disabled within the meaning of the Equality Act 2010.

The county court judge found some breaches but rejected or failed to determine others by reference to an unexplained concept of a “relevant breach”. He concluded that possession would not be reasonable or proportionate and indicated that eviction would amount to disability discrimination. The appeal concerned the proper identification of breaches, the reasonableness and proportionality assessments, and the appropriate disposal of the appeal.

1. Appeal allowed and action remitted for retrial. The county court judge had erred by failing to find that the installation of CCTV breached clause 15.2 of the tenancy, and that extensive dog fouling breached clause 25.5. He also failed to make necessary findings concerning garden works and conduct said to be aggressive, threatening or intimidating.

2. An honest but mistaken belief that permission had been given is no defence to breach of a tenancy term requiring written permission for alterations. The CCTV installation therefore established a ground for possession under ground 12 of Part II of Schedule 2 to the Housing Act 1988. The dog fouling was a breach and relevant to reasonableness and disability discrimination, although it was not a separate pleaded ground for possession.

3. The unexplained expression “relevant breach” was not a proper basis for rejecting a possession ground. The court must identify whether a breach or statutory ground is established, then assess whether possession is reasonable. The tenant’s honest belief, the landlord’s conduct, the effect on neighbours, the tenant’s mental health and the circumstances existing at the hearing may all be relevant to that assessment.

4. Reasonableness under sections 7(4) and 9A of the Housing Act 1988 involves a broad, common-sense evaluation of all relevant circumstances, including the effect of nuisance or annoyance on other residents. The discretion is wide and appellate intervention is exceptional. The judge had expressly considered the vulnerabilities and interests of the neighbouring tenants, but the incomplete findings meant that the reasonableness conclusion could not safely stand.

5. Where disability discrimination is raised, the court must consider whether the tenant is disabled, whether there is a sufficient causal link between the disability and the conduct relied upon, and whether eviction is a proportionate means of achieving a legitimate aim. The landlord must show that no less drastic means would achieve that aim and that the benefits of eviction outweigh its effect on the tenant. Possible alternative accommodation and conditional suspension of possession could be relevant.

6. The appellate court could not order possession because the assessment was fact-sensitive and important matters, including the tenant’s mental health and the disputed garden arrangements, militated against doing so. It also could not dismiss the appeal on the basis that no first-instance judge could properly order possession. The action was therefore remitted for a new trial, with directions for updated evidence on reasonableness, proportionality and medical matters.

• High Court (Queen’s Bench Division): appeal from the order of the county court dated 23 June 2017 allowed; the possession action remitted for retrial.