Amer Hajan v The Mayor & Burgesses of the London Borough of Brent

Statutory notice requirements for possession proceedings should be interpreted purposively. Where the tenant has received the required notice, review opportunity and time to respond, an existing possession claim may be amended to rely on a mandatory anti-social behaviour ground, provided the amendment takes effect after the permitted date. A fresh claim is not necessarily required.

A court also retains jurisdiction under the Housing Act 1988 while a discretionary possession order remains unexecuted. It may reconsider the suspension and conditions, discharge them and set a new date for possession. This includes considering later material establishing a mandatory ground. Both appeals were dismissed.

Two appeals were heard together. In Hajan, the tenant held a secure tenancy protected by the Housing Act 1985. The landlord had begun possession proceedings on discretionary grounds and later served notice seeking possession on the mandatory ground in section 84A after the tenant’s conviction for a serious offence. The issue was whether the landlord had to commence fresh proceedings or could amend the existing claim.

In Kerr, the tenant held an assured tenancy protected by the Housing Act 1988. A suspended possession order had originally been made on the ground of rent arrears. After a serious offence by a person residing in the property, the landlord sought to convert the suspended order into an outright order under ground 7A. The county court upheld that course, and the appeals concerned the scope of the court’s statutory powers and any implied liberty to apply.

1. Both appeals dismissed. In Hajan, the order was varied in accordance with the respondent’s notice so that the amendment took effect from a specified date. In Kerr, the court had jurisdiction to discharge the conditions of suspension and make possession enforceable on a new date.
2. Legislation must be interpreted purposively. The court identifies the statutory purpose and interprets the language, so far as possible, to give effect to that purpose. The need for housing legislation to be clear, simple and consistent does not displace that approach. The purpose of the mandatory anti-social behaviour provisions is to expedite possession where serious anti-social behaviour or criminality has already been established, while preserving notice, review and timing safeguards.
3. For the purposes of sections 83ZA and 83A of the Housing Act 1985, “proceedings” may refer to amended proceedings. Where the landlord obtains permission to amend and the court specifies when the amendment takes effect, the proceedings are begun on that effective date. A fresh claim is unnecessary where the statutory protections have been observed. This interpretation avoids duplicated proceedings and unnecessary costs.
4. Section 9 of the Housing Act 1988 confers a continuing jurisdiction, while the original possession order remains unexecuted, to reconsider a stay, suspension or postponement and the conditions attached to it. The court may take account of material outside the original proceedings and may vary a conditional order into an outright order. The Court of Appeal followed Sheffield City Council v Hopkins and Manchester CC v Finn, which reached that conclusion under the analogous section 85 of the Housing Act 1985.
5. Section 9(6) removes the section 9 powers where the court is satisfied that the landlord is entitled to possession on a mandatory ground. It does not prevent the court from considering material establishing a mandatory ground when varying an order originally made on a discretionary ground. If the mandatory ground is made out, the discretion will in reality be exercisable only in favour of enforcement.
6. The power arises from section 9 itself and does not depend on an implied liberty to apply. The application may be understood as terminating the suspension, discharging the conditions and postponing the original possession date to a new future date. Arnold LJ added that the language of “stay”, “suspend” and “postpone” itself implies a power to lift, terminate or vary those arrangements. Newey LJ agreed with the reasons of Lewison LJ and Arnold LJ.

• Court of Appeal (Civil Division): heard the Hajan and Kerr appeals together and dismissed both appeals on 23 October 2024: [2024] EWCA Civ 1260.
• Willesden County Court: Deputy District Judge Samuel granted Brent permission to amend its particulars of claim. HHJ Luba KC granted permission to appeal and transferred the appeal to the Court of Appeal.
• County Court at Central London: DJ Bell varied Kerr’s suspended possession order into an outright order. HHJ Luba KC held that an implied liberty to apply gave the court power to vary the order.