The defendant tenant appealed an order for possession of her flat. She was disabled and living with her 19 year old son. He had been made subject to an anti-social behaviour order. The court had found that she could have required him to leave. The tenant alleged disability discrimination.
Held: As to the relevance of the fact that the nuisance was caused by somebody else: ‘the fact that the tenant cannot control the nuisance-maker is a factor which would normally assist the tenant in resisting an order for possession in relation to past breaches, especially where she has done her best to stop the nuisance. However, unless the nuisance-maker has vacated, or will shortly vacate, the property, it seems to me to be a factor which may often assist the landlord if he is asking the court to make an outright order for possession or to suspend the order for possession on terms which relate to the behaviour of the nuisance-maker.’ and ‘I would therefore reject, on the basis of principle, practice and authority, the notion that, in a case where the landlord relies on ground 14, the court should not make an order for possession, whether suspended or otherwise, simply because it can be said that the person responsible for the acts of nuisance is subject to an ASBO which is, in effect, directed to preventing the same sort of acts. However, I accept that, as a matter of principle, and, in the light of Ward LJ’s observations, on the basis of authority, the existence of an ASBO can be a relevant matter when the court is deciding whether it is reasonable to make an order for possession, and whether to suspend it. ‘ Whether a suspended order for possession should only be enforced after a further court hearing was a question for each particular case: ‘Normally, a suspended order for possession should not include a term that the landlord should have to apply to the court for permission before applying for a warrant. ‘ In this case such an order was appropriate.
Judges:
Lord Justice Auld Lord Justice Rix Lord Justice Neuberger
Citations:
Times 22-May-2006, [2006] EWCA Civ 539, [2006] HLR 43
Links:
Statutes:
Disability Discrimination Act 1995 22(3)(c)
Jurisdiction:
England and Wales
Citing:
Cited – Portsmouth City Council v Bryant CA 2000
It may be unreasonable to impose a possession order against a person in respect of a failing over which they have no control.
Simon Brown LJ said, having reviewed the existing authorities: ‘Those authorities clearly hold that no personal fault . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
Explained – Newcastle City Council v Morrison CA 2000
The court reviewed the principles applicable when asking whether it is reasonable to make an order for possession against a tenant on grounds of nuisance: a) When considering reasonableness, the Judge must take account of all relevant circumstances . .
Cited – Manchester City Council v Higgins CA 24-Nov-2005
The authority sought an immediate possession order against their council house tenant. Her 13 year old son had been made subject to an ASBO after atrocious and intimidating behaviour towards a neighbour. A possession order had been granted but then . .
Cited – Gallagher v Castle Vale Action Trust Ltd CA 23-Feb-2001
The court emphasised the need not merely to identify the relevant factors that weigh in each direction when considering whether to make an order for possession in a nuisance case, but to explain clearly why it is or is not proportionate to interfere . .
Cited – Lambeth London Borough Council v Howard CA 6-Mar-2001
Any attempt to evict a person, whether directly or indirectly or by process of law, from his or her home is on the face of it a derogation from the respect to which the home is prima facie entitled. Courts should be careful fully to explain any . .
Cited – London and Quadrant Housing Trust v Root CA 12-Jan-2005
The tenant had a partner whom she could not control, and who had terrorised her to the nuisance also of her neighbours. The landlord sought possession, and until that was granted an anti-social behaviour order (ASBO) against the partner. Before the . .
Cited – North Devon Homes Housing Association v Brazier QBD 2003
The tenant was guilty of nuisance, but her misbehaviour was attributable to her psychotic state – her ‘disability’ within the 1995 Act.
Held: Though a very pertinent factor to be taken into account may be a housing authority’s obligations to . .
Cited – Manchester City Council v Higgins CA 24-Nov-2005
The authority sought an immediate possession order against their council house tenant. Her 13 year old son had been made subject to an ASBO after atrocious and intimidating behaviour towards a neighbour. A possession order had been granted but then . .
Cited – Council of the City of Manchester v Romano, Samariz CA 1-Jul-2004
The authority sought to evict their tenant on the ground that he was behaving in a way which was a nuisance to neighbours. The tenant was disabled, and claimed discrimination.
Held: In secure tenancies, the authority had to consider the . .
Cited – St Brice and Another v Southwark London Borough Council CA 17-Jul-2001
The council having obtained a possession order, suspended on terms, through court proceedings, later sought to enforce the order by a warrant for possession issued without first giving notice to the tenant. The tenant alleged that the grant of the . .
Cited – St Brice and Another v Southwark London Borough Council CA 17-Jul-2001
The council having obtained a possession order, suspended on terms, through court proceedings, later sought to enforce the order by a warrant for possession issued without first giving notice to the tenant. The tenant alleged that the grant of the . .
Cited by:
Cited – Royal Borough of Greenwich v Tuitt CA 25-Nov-2014
The Defendant appealed against the order for possession made against her in respect of her secure tenancy of a flat, made on the grounds that her son, now 18 years old and living with her and her partner, had committed repeated acts of nuisance and . .
Lists of cited by and citing cases may be incomplete.
Housing
Updated: 06 July 2022; Ref: scu.241604