Possession proceedings must be 'reasonable' rules Court of Appeal

Article

15 February, 2010

It is generally considered that seeking an order for possession of residential accommodation and thus removing someone from their home is one of the greatest interferences with a person's life. Therefore, it is imperative that social landlords are able to demonstrate to a judge hearing such a claim that applying for an order for possession is a reasonable step to take.

In the case of Barber v Croydon London Borough Council [2010] EWCA Civ 51, it was held that it was unreasonable and thus should serve as a warning to residential landlords.

The Facts

The tenant (B) suffered from learning difficulties and a personality disorder. Possession of his flat had been sought by the Council (C) on the basis of an incident in which B had threatened, spat at and kicked a caretaker. C's policy on anti social behaviour recognised the need for its ASB team to work in partnership with both internal and external organisations, including those dealing with mental health issues and vulnerable people.

C's policy also stated that there were three categories of anti social behaviour and that C's conduct was within the scope of category 3: the most serious. For action that fell into category 3, the policy said that legal action would "almost always" take place.

Before the possession hearing, a jointly instructed consultant psychiatrist prepared a report which stated that B's disability was likely to have contributed to his behaviour, that he had been stable (in a mental health context) whilst he was residing in the flat and that his life would descend into chaos if he was to be evicted. After reviewing this report, C's ASB manager filed a witness statement which said that it nevertheless remained proportionate to seek a possession order.

In appealing against the immediate order for possession granted at trial, B argued that C's ASB manager pressed ahead with the proceedings (in breach of C's own policy) without consulting the Mental Health Service or considering whether anything 'less' than possession would solve the problem. It was also submitted that C's decision to seek possession of the property on the basis of a single act of anti social behaviour by a disabled person was one which no reasonable person would deem to be justifiable.

The Court of Appeal's Decision

The Court of Appeal agreed with B and allowed the appeal. It held that the decision made by C's ASB manager was one which no housing authority, when faced with the facts in this case, could have reasonably taken.

The Court said that by ordinary standards, the assault on the caretaker was serious and obviously unacceptable. However, C's own policy on vulnerable people was to explore alternative solutions which could prevent anti social behaviour from occurring in the future. Although there may be cases where the only solution is to remove the tenant from their home, the requirement to consult with other agencies was to ensure that possession proceedings were limited to cases where it was necessary to prevent further anti social behaviour.

Due to the fact that there had not been any misbehaviour by B before or after the incident and having regard to the consultant psychiatrist's report, it would have been essential for C's ASB manager to consult these agencies and investigate whether alternative solutions were more suitable. There was also said to have been no consideration of the medical report by the manager.

It was held that there had been no consideration by C of the possible consequences of B losing his flat and that it appeared that C had treated the case as a 'normal' category 3 anti social behaviour cases, to which C's policy on vulnerable people was not applicable. This was wrong in principle.

Summary

Because an order for possession of property can have such a significant impact upon a person, a court will want to see that the landlord has considered and/or attempted alternative remedies to a case. If these other options have been rejected, it is advisable for it to be documented as to why they are considered to be unsuitable.

Cases such as Barber indicate that possession proceedings should be viewed as options of last resort and landlords should do all they can to show that a possession order is reasonable in the circumstances of their case.

For more information and assistance on these issues, please contact the Housing Department at Forbes Solicitors on 01772 220200 or contact Stuart Penswick by email.

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