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

The Court of Appeal considered two linked issues arising from possession proceedings: (1) whether a landlord may rely on the mandatory anti-social behaviour ground introduced by the Anti-social Behaviour, Crime and Policing Act 2014 (as implemented in the Housing Act 1985 by section 84A and the related procedural requirements in section 83ZA) by amending existing possession proceedings, rather than issuing new proceedings; and (2) whether a court may vary a suspended possession order made on a discretionary ground (under section 9 of the Housing Act 1988 or section 85 of the Housing Act 1985) so as to discharge conditions and make the order immediately enforceable where a mandatory ground has arisen since the original order.

The court held that, read purposively, the statutory requirement that a notice must specify a date after which proceedings may be begun (section 83ZA(9)(a)) and that the court shall not entertain proceedings unless they are begun after that date (section 83A(2)) can be satisfied where the court, on application, grants permission to amend and fixes the date from which the amendment and thus the amended proceedings take effect. The statutory protections for tenants (the specified window, the right to request a review under section 85ZA and the 12-month limit) remain effective where those requirements have been complied with.

The court also held that the court's continuing jurisdiction under section 9 (and, by close analogy, section 85) permits reconsideration of the terms of suspension and, where appropriate, discharge of conditions so as to allow a suspended order to take immediate effect. That power extends to taking into account material which has arisen since the original order, including material that would establish a mandatory ground; if the mandatory ground is satisfied, the court's discretion will in practice point to enforcement.

Background and parties: These appeals were heard together. The appellant in Hajan was a secure tenant of Brent; Brent sought possession after the tenant pleaded guilty to criminal damage. The appellant in Kerr was an assured tenant; Poplar HARCA sought to convert a suspended possession order (originally for rent arrears) into an outright order after the tenant's relative was convicted of a serious offence.

Procedural posture: Hajan involved an attempt by Brent to amend extant proceedings (originally based on discretionary grounds) to rely on the mandatory ground in section 84A of the Housing Act 1985 after service of the statutory notice under section 83ZA; permission to amend was granted by the county court and the tenant challenged that decision. Kerr involved an application to vary a suspended order (made on a discretionary ground) into an immediate order for possession; the district judge varied the order and this was appealed.

Relief sought: (i) In Hajan, the landlord sought leave to amend existing particulars of claim to rely on the mandatory anti-social behaviour ground and to rely on the conviction certified within the statutory window; (ii) in Kerr, the landlord sought an order discharging the suspension conditions and converting a suspended possession order into an unconditional order for possession.

Issues framed:

• In Hajan: whether the statutory requirement that proceedings be "begun" after the date specified in a section 83ZA notice prevents reliance upon that mandatory ground by amendment of existing proceedings already begun before the notice.
• In Kerr: whether section 9 of the Housing Act 1988 (and by analogy section 85 of the 1985 Act) permits the court, while a suspended order is still running, to discharge conditions and make the order enforceable where new material establishing a mandatory ground has arisen.

Court’s reasoning (concise): The court applied a purposive approach to statutory interpretation. It identified the objectives of the notice scheme: to inform tenants of the landlord's decision, to provide a time for any review request (section 85ZA), to ensure timeliness and to prevent stale reliance on convictions. The court concluded that "proceedings" in sections 83ZA and 83A can be read to include amended proceedings, and that proceedings are "begun" when the court makes the amendment effective (the court may direct the amendment to take effect from a specified date). This preserves the tenant's statutory protections while avoiding unnecessary procedural duplication and wasted court resources.

On variation of suspended orders, the court followed precedent establishing a continuing jurisdiction to revisit the terms of suspension and to consider material arising after the original order. Section 9 was read purposively to permit discharge of conditions and conversion of a suspended/discretionary order into an immediate enforceable order where appropriate; section 9(6) does not prevent the court from considering mandatory-ground material when exercising its continuing jurisdiction, although if a mandatory ground is made out discretion will effectively point to enforcement.

Subsidiary findings and wider context: The court distinguished Lower Street Properties Ltd v Jones and explained why the mischief identified there did not require dismissal of the landlord's approach where amendment is made effective after the notice date. The judgment emphasised the rarity of allowing procedural form to defeat substantive protections and endorsed the CPR practice of deciding interrelated issues within the same action where statutory protections have been observed.

Both appeals were dismissed. The Court of Appeal held that (1) a landlord may, having complied with the procedural requirements of section 83ZA (including service of the notice and the review window), apply to amend existing proceedings to rely on the mandatory ground in section 84A; the court may direct the amendment to take effect from a specified date so that the amended proceedings are properly "begun" after the date specified in the notice; and (2) under section 9 (and by close analogy section 85) the court has continuing jurisdiction to revisit and vary the terms of a suspended possession order, including discharging conditions and allowing the order to take immediate effect where new material (including material establishing a mandatory ground) justifies that course.

On appeal from two county court decisions: (i) Wilesden County Court (Deputy District Judge Samuel J — J02W1530) concerning Brent's permission to amend particulars of claim; and (ii) County Court at Central London (HHJ Luba KC — C1PP4593) concerning variation of a suspended order. Permission to appeal in Hajan was granted and the appeal was transferred to the Court of Appeal (transfer accepted by Andrews LJ). Both appeals were heard in the Court of Appeal on 9–10 October 2024 and judgment given 23 October 2024. Neutral citation: [2024] EWCA Civ 1260.