England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(MR RECORDER CLEARY)

		Royal Courts of Justice Strand London WC2 Friday, 23rd February 2001

1. LORD JUSTICE SCHIEMANN: Mr Justice Blackburne will deliver the first judgment.
2. MR JUSTICE BLACKBURNE: This is an appeal for which the court gave permission earlier today against a 28-day possession order made by Mr Recorder Cleary sitting in Birmingham County Court on 4th December 2000 against Mrs Susan Gallagher in respect of a house at 25 Worthy Down Walk, Castle Vale, Birmingham.
3. Mrs Gallagher held No.25 as a secure tenant from Castle Vale Housing Action Trust under a tenancy agreement which began in March 1987.
4. No.25 is one of a great many dwellings which, with schools, shops, playing fields and other facilities form the Castle Vale Estate situated on the outskirts of Birmingham. The judge described it as the largest municipal housing estate to have been built in Birmingham since the last war. It appears to have been constructed some time in the 1960s.
5. In June 1993 the Secretary of State for the Environment designated the area of the estate as a Housing Action Trust area pursuant to powers contained in the Housing Act 1988, and in March of 1994 made an order transferring the council's interest in the estate to the Castle Vale Housing Action Trust.
6. The estate seems to have suffered from many years of neglect and, by the early 1990s, had become very rundown. As is so often the case, hand in hand with neglect went social deprivation, which in turn led to demoralisation and vandalism, together with antisocial conduct on the part of some at least of the occupants of the estate.
7. It was to redress these problems that the Housing Action Trust was established, armed with a substantial budget to regenerate the estate. According to the judgment below much progress has been made along the path of regeneration. But among the problems that the Trust has had to confront (leading to the present proceedings) has been a hardcore of continuing vandalism and antisocial conduct.
8. The action in which the order appealed against was made was one of five brought by the Trust in which possession was sought of properties owned by the Trust and leased to five separate tenants.
9. The governing statute in the matter is the Housing Act 1985 and in particular Schedule 2 which sets out the circumstances in which possession may be obtained. The grounds relevant to the claims against the five tenants in these proceedings were Grounds 1 and 2. Ground 1 relates to rent lawfully due from the tenant which has not been paid or an obligation of the tenancy which has been broken or not performed. Ground 2 provides as follows:

"The tenant or a person residing in or visiting the dwelling house -

(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or

(b) has been convicted of

(i) using the dwelling house or allowing it to be used for immoral or illegal purposes;

(ii) an arrestable offence committed in or in the locality of the dwelling house."

10. In determining whether any, and if so what, order should be made, the court is required to consider the matter in three stages. The first stage is to consider whether the claimant landlord makes out its ground of possession under Schedule 2. That is as provided for by section 84(1) of the Act.
11. The second stage, if the claimant landlord does make out a ground of possession, is to consider whether, in the case of the discretionary grounds (which include Grounds 1 and 2) it is reasonable to order possession. That is as is laid down by section 84(2)(a) of the 1985 Act. The third stage is to consider whether, if it is reasonable to make an order for possession, to exercise a discretion to stay or suspend or postpone the date for possession. That is as laid down by section 85(2), which provides as follows:

"On the making of an order for possession of such a dwelling house on any of those grounds

- and those are the grounds referred to in Part 3 of Schedule 2 -

"or at any time before the execution of such an order the court may

(a) stay or suspend the execution of the order, or

(b) postpone the date of possession for such period or periods as the court thinks fit."

12. The principal ground relied on by the Trust against the five tenants (and the only ground as I understand it established against Mrs Gallagher) was Ground 2. The matter was explained thus in the judgment below. The judge said at page 3:

"Essentially, the Claimant's case comes down to this. While the tenants in each case might be unimpeachable as individuals, they appear either incapable of recognising or unable to accept that one or more of their children are creating a grave nuisance on the estate, categorised as antisocial behaviour and, even if they do recognise that, they are quite unable to control and prevent it. For the benefit of the other tenants, the Claimant wishes to be rid of these families."

13. The trial lasted 16 or so days. There appears to have been a welter of allegations. In order to keep the trial within manageable limits the court ruled that the evidence should be limited to matters which were admitted, criminal convictions recorded against any of the tenants or charges outstanding, and 20 other allegations which the Trust wished to prove in support of its claim.
14. In his judgment, which seems to have begun on 30th November and been concluded on 4th December, the judge's findings in the claim against Mrs Gallagher were as follows:

"Mrs Gallagher lives at 25, Worthy Down Walk. She has a daughter, Sarah (20) and, for the purpose of this case, two sons, Rory, who lives away from home, and Richard, who has, within the last month, been sentenced to a term of two and a half years' imprisonment. In her statement she asserts that Richard left home in 1992. There is, however, another presence in her house, that of Christopher Ansell, whom we have already come across."

15. One of the other claims was in respect of 133 Cadbury Drive, the tenant of which was a Mrs Mandy Ansell, Christopher Ansell's mother. The judge continued:

"This young man is the boyfriend of Mrs Gallagher's daughter, Sarah. Since being ejected from his mother's home on Cadbury Drive Christopher has been living with Sarah's mother at Worthy Down Walk.

Convictions.

The offences which Christopher Ansell has committed have already been chronicled in this case against his mother."

16. There were a number of convictions against Christopher stretching between September 1997 and February 2000. The judge continued:

"Sarah Gallagher has the following convictions recorded against her."

17. He then set them out and mentioned other examples of Sarah's anti-social conduct. He then continued:

"Complaints, as I have indicated, continue to come into the HAT since these proceedings commenced.

The convictions and many other examples of antisocial behaviour by Christopher are well known to Sarah and her mother. Whereas they have driven Mrs Gallagher to distraction to the extent that she now has nothing to say about them since Christopher will simply not listen to her without abusing her or ignore her, Sarah, however, is still very close to him. One of the issues in the case against Mrs Gallagher is whether or not Christopher still makes his home with her. Certainly in her statement of October this year at page 308 Mrs Gallagher says, 'I live at the house with my daughter and her boyfriend Christopher.'

As I have said before, Christopher has elected not to play any part of these proceedings, notwithstanding his closeness to Sarah, who herself gave evidence. Indeed, the night before Sarah gave evidence on 27th November this year Christopher spent the night at her mother's home and was given a meal by her. On being challenged Mrs Gallagher indicated that she wanted to keep the peace, and he was, and is after all, close to her daughter; and that of course is the problem, because I find that, quite apart from his criminality, Christopher's behaviour is thoroughly antisocial and a dreadful nuisance in the locality, and I am quite satisfied that, when he wishes to, he visits and stays at the Gallagher house.

Unhappily, Sarah Gallagher is herself no angel. She has a conviction for handling stolen goods, or a caution for it, goods stolen in fact by Christopher, and frankly admits that she has been abusive to another tenant, Don Bent, and that she mingles with a group or groups of people who make such a dreadful noise outside number 25 at all hours of the evening and night and that she shares Christopher's habit of using loud and thoroughly disgusting and unpleasant language.

Number 25 is in fact a property with some fairly unpleasant problems. As often as once a week various windows in the property would be smashed over a period of some months some time ago. It has had certainly one unwelcome visitor who has made various specific threats against the occupants and Christopher has been threatened in a knife incident. Indeed, Mrs Gallagher cheerfully admitted that the attacks on the house were attacks aimed in fact at her, and she also readily admitted that there is significant noise and extremely unpleasant language coming from her home which would be unpleasant for the neighbours. She amused the other Defendants sitting in the court when she criticised in very unpleasant terms her neighbours for being foolish enough to listen to the language coming out of her home. The expression she used was 'her with the cauliflower ears next door'.

She saw no particular discomfort when questioned about her daughter's free use of the word 'cunt' as she argued at some volume with Christopher, an argument which neighbours were quite unable to avoid hearing.

There is no doubt that the gatherings outside her home of rowdy young people and of motor vehicles being examined and revved in the late hours are gatherings which are brought about by the presence of her home and her family. The evidence of the neighbour and of the distress that is being caused to this latter family is overwhelming. The court has seen videos of the cars and vans parked outside the property and it is perfectly clear that life for the neighbours must be made quite intolerable by the activities both immediately outside the house but also within it. It is not, as counsel for the Gallaghers suggested, a difference in lifestyle; it is intolerable."

18. The learned judge then went on to consider the conduct of the Gallaghers when they were in occupation of a quite separate property. I pass over that because, with all due respect to the judge, it does not seem to be of much (if any) relevance. There is also a passage concerned with the state of the back garden of No.25, which again, with all due respect to the judge, does not seem to me to be of much (if any) materiality.
19. He then continued at page 60 of the judgment:

"One perhaps might feel some sympathy for Mrs Gallagher. She has presented a doctor's report to the court which perhaps should be considered when considering the matter of reasonableness, and one cannot but feel some sympathy for the manner in which she was left by her husband to cope with her growing children. However, sympathy arising out of that act of desertion and compassion for a lady who simply cannot control any of her children do not overcome the fact that there is no doubt in my mind that the Claimant makes out its case against her on the basis of the convictions of Sarah, an occupant, the convictions of Christopher, a regular visitor to and sometime occupant of the property, and nuisance and breach of the contractual terms of the tenancy."

20. I should say in relation to the contractual terms that they are contained in section 8 of the Tenancy Agreement, headed Nuisance and Harassment, and they provide, so far as material in relation to nuisance:

"You are responsible for the behaviour of every person living in or visiting your home including children, other family members, visitors, guests, friends, relatives, lodgers, sub-tenants etc. You are responsible for them in your home, on surrounding land, in communal areas, (entrance halls, stairs, lifts, landings etc.), in the neighbourhood around your home and on the estate.

You and they must not take any action intended to interfere with the peace and quiet enjoyment of their homes by your neighbours and residents of the estate.

You and they must not cause nuisance, annoyance or disturbance to any other person on the estate including people living in the immediate vicinity of the property, residents anywhere on the estate who are not neighbours (regardless of whether they are Trust tenants), private tenants or owner occupiers and people using local facilities, shops, footpaths and amenity areas etc."

21. Then a number of examples are set out of such conduct.
22. There is no appeal against the judge's clear finding that Ground 2 had been established against Mrs Gallagher. After hearing further submissions the judge made a 28-day order for possession against Mrs Gallagher.
23. In the notice of appeal there are three grounds of appeal. The first is that in considering whether it was reasonable to make a possession order the judge failed properly to consider whether the circumstances which had resulted in his finding that the complaint under Ground 2 was made out were likely to continue, and if not, whether no order or a suspended order should be made.
24. The second ground of appeal, which seems to be closely related to, if not entirely the same as the first – before us counsel has accepted that it is in substance raising the same point – is this. Since, on the facts, those who had caused the nuisance or annoyance, namely Mrs Gallagher's daughter, Sarah, and her boyfriend, Christopher Ansell, had vacated the tenancy in the course of the hearing and would return as visitors only, the judge failed to give proper consideration to whether the nuisance would be repeated and if so, to what degree, and, therefore, whether it would be reasonable to make a possession order.
25. Underlying both grounds was the fact (not referred to in the judgment and as I understand it uncontested) that Sarah Gallagher has purchased a house elsewhere on the estate, completion of which occurred on 1st December, and intended to move there with Christopher Ansell.
26. In deciding what order to make the learned judge said this (I read from page 9 of the second of the two judgments):

"Gallagher; I am satisfied that Mrs Gallagher has no intention of keeping Christopher Ansell from her door. He was at home on Friday of this week and over one of the nights earlier that week by her permission, receiving both bed and board. He is, as she frankly accepts, her daughter's boyfriend and, even on that neutral basis, she sees no reason to keep him from her house. Sarah, while by no means as tainted an individual as her boyfriend, seems oblivious to his malign influence and is obviously besotted by him. Indeed, I have heard and found that she allows that influence to dictate her own language and her own behaviour. In addition, Mrs Gallagher, we discover, is engaged to be married and has another property to go to. I adopt the responses to each of the factors set out on page 12 of the Claimant's submission. An order will be made and I will need to hear addresses on how soon it will take this lady to find alternative accommodation."

27. Having heard from counsel, and in particular what Mr McGuire submitted, I take the view that the judge was entitled to conclude that Sarah and Christopher would, or might well continue to visit Mrs Gallagher if she remained a tenant at No.25, and that Mrs Gallagher either would not or could not prevent them from doing so, and that, given their past conduct, Christopher Ansell's total lack of concern about his conduct and its effect on others and Mrs Gallagher's passivity in the face of all this, further nuisances might well occur. That, I think, is the import of the first three sentences of the passage from which I have just read.
28. The real question to my mind, is whether the judge properly considered whether, given the facts as found, or as not contested, something less than an outright order for possession was appropriate. This is the point addressed, as I understand it, by the first ground of appeal and also, I think, by the second. It is also raised by the third ground of appeal.
29. The third ground is a complaint that the judge failed properly to apply Article 8 of the European Convention on Human Rights in so far as it is concerned with a person's right to respect for his home. Mr Watkinson, on behalf of Mrs Gallagher, submitted that the judge failed to consider whether under Article 8.2 it was necessary to evict Mrs Gallagher in order to prevent No.25 from being used as a base for nuisances to others, when on the facts it was unlikely that the premises would be so used in the future.
30. There can, in my view, be no complaint that the relevant statutory provisions contained in sections 84 and 85 do not adequately safeguard the tenant's right to respect for his or her home if properly applied. The question to my mind is whether, in exercising the discretion conferred by section 85(2), the judge below gave proper effect to Mrs Gallagher's right to respect for her home. I doubt whether in practice the terms of Article 8 make much difference to the way in which in the past the court has approached the issue of reasonableness and the appropriate order to make under section 85(2). What in my view Article 8 does do is to reinforce the importance of only making an order depriving a person of his or her home where a clear case for so doing has been made out.
31. The difficulty which I feel about the judge's decision is that, having concluded, as in my view on the evidence was amply justified, that it was reasonable to make a possession order, it is not apparent why the appropriate order to make was an outright order for possession rather than one of the other alternatives open to him under section 85(2). I can detect nothing in the judgment which deals with this crucial aspect of the claim. In the short passage which I have just read out all the judge says is this:

"An order will be made and I will need to hear addresses on how soon it would take this lady to find alternative accommodation."

32. It would seem that when exercising his discretion under section 85(2) either the judge failed altogether to consider whether a suspended, or some other order should be made, which is exceedingly unlikely considering, not least, that he made a suspended order in one of the other cases, or he did consider whether to make a suspended order, in which case he failed to make clear, as in my judgment he should, why he was rejecting these less draconian alternatives.
33. Either way, as it seems to me, it is open to this court to exercise the discretion or exercise it afresh. In this connection further evidence has been laid before the court updating the position since the matter was before the court below. Speaking for myself, I do not consider that that additional evidence carries the matter much further. It makes clear that Sarah Gallagher and Christopher Ansell are no longer living at No.25. There is a suggestion of further antisocial conduct on the part of Christopher, but that conduct, I notice, is said to have occurred outside Sarah's new home at 66 Watton Green and not in or in the vicinity of No.25.
34. Relevant, in my view, to the exercise of the discretion are the following considerations. First, that No.25 has been Mrs Gallagher's home for the past 15 or so years. Second, that although conduct of a grossly offensive nature to neighbours and others in the locality has occurred, this has been conduct not on Mrs Gallagher's part but on the part of Christopher Ansell as a visitor and some-time occupier of that property, and, to a lesser extent, Sarah. Third, in so far as reliance is placed upon arrestable offences committed in or in the locality locality of No.25, the offences are all of others. Fourth, that Mrs Gallagher's sin is essentially one of omission – her inability or unwillingness to prevent her daughter and Christopher from causing a nuisance or a noise to others in the locality. Fifth, that the chances of this occurring in the future must be much reduced now that (in fact from early December) Sarah has a home of her own where I assume Christopher Ansell is now also living.
35. Of Mrs Gallagher's two sons, one, Rory, we are told, has not lived at the property for some time; and the other, Richard, is in prison. It seems to me that this represents a significant change from the position prior to the 1st December last year, up to when Sarah was continuing to live at No.25 to which, given her association with Christopher Ansell, he too could be expected to be a frequent visitor.
36. In these circumstances I consider that it will be disproportionate to make an outright possession order. I take the view that the appropriate and proportionate order is a possession order suspended for two years on condition that there is no further significant breach of section 8 of Mrs Gallagher's Tenancy Agreement.
37. I consider that there should be liberty to apply in the event of a breach for permission to enforce the order. I consider that it should be clearly understood that if there is a further significant breach Mrs Gallagher can expect the suspension to be lifted and the order allowed to take effect. I also consider that the order should make clear that if there has been no breach within the two-year period of suspension the possession order will be discharged.
38. For those reasons in my judgment this appeal should be allowed.
39. LORD JUSTICE SEDLEY: Section 77(6) of the County Courts Act 1984 does not in its terms exclude the possibility of an appeal on the question of reasonableness. What are not appealable, by virtue of it, are the judge's findings on the primary facts relevant to that judgment. It seems to me that, taking the primary facts as found by the judge below, the intrinsic reasonableness of granting or withholding a possession order, or of suspending or not suspending such an order, and not merely its public law rationality, will be open to this court in a proper case. By a proper case I mean not a marginal case but an erroneous appraisal of reasonableness whether in favour of or against the granting of a possession order.
40. The present is, in my view, such a case, even if one approaches it upon Mr McGuire's thesis that the recorder should be treated as having weighed up the possibility of suspension which he has not addressed in terms. In fact however, there is total silence in the judgment as to whether to suspend or, given the decision in favour of an outright order, why there should be no suspension. It is not open to us to fill such an important gap by speculation, and for this alternative reason it seems to me that this appeal is competent.
41. The present case, we are told, is the first of its kind to reach this court since 2nd October 2000 when the Human Rights Act 1998 was brought into force. The Act formed part of the argument below and has been briefly re-canvassed here. It may therefore be relevant to indicate how in my present view it impacts on the statutory requirement of reasonableness in the making or the withholding or the suspending of possession orders under section 85 and Schedule 2 to the Housing Act 1985.
42. One would have hoped that it was possible simply to say that the approach of county court judges to reasonableness in relation to possession orders is and always has been at least as solicitous of tenants' interests as Article 8 of the European Convention on Human Rights requires. But it may be that the decision in this case, and the boldness of some of Mr McGuire's submissions in defence of it, make it relevant to say a word in elaboration of that proposition.
43. A Housing Action Trust, such as the present claimant, is rightly conceded to be a public authority within section 6 of the Human Rights Act. But it is not on trial in the proceedings for the wisdom or propriety of its management decisions. What matters in relation to possession proceedings is that the Trust's powers to recover possession, the court's powers to grant possession and the tenant's rights in the face of those powers are all governed by statute. That being so, section 3(1) of the Human Rights Act provides:

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

44. This provision in a case such as the present makes it unnecessary to answer the more difficult question whether the court itself, as a public authority, is required by section 6(1) to adapt its orders as well as its procedures to the Convention; although the weight of opinion at present answers that question in the affirmative.
45. None of this, however, threw up the questions about the Housing Action Trust to which the recorder was somehow induced to devote part of his judgment. He asked himself: has the Housing Action Trust failed in its declared aims, and, if it has, is that a breach of Article 8 or a breach of statutory duty? Is the failure of the Housing Action Trust to develop a joint strategy a breach of Article 8? Is the failure of the Housing Action Trust to warn families of the approach of proceedings in breach of Article 8? None of these questions, it should be said clearly, have anything to do with possession actions such as the present, and it is unfortunate that the recorder was directed into thinking that they did.
46. The relevant impact of the Human Rights Act on the Housing Act possession provisions is that the word "reasonable" in those provisions has to be given an effect consistent with Article 8. There is no inherent difficulty about this. Indeed, the experience of many of us in our early days at the Bar was that nothing was done under this legislation or its private law predecessors in the Rent Acts which would not have passed muster under Article 8. That is why the outright order made in this case on the facts found by the recorder surprised me when I first read the papers, and still does.
47. What Article 8 says is this:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

48. Its effect in relation to reasonableness is to make express and schematic what has, in my view, always been present in the requirement of reasonableness. Thus: (a) A possession order if made and executed will negate the state's respect for the tenant's home. Article 8(1) is therefore engaged. (b) This may nevertheless be done if permitted by law in order to protect the rights and freedoms of others - a qualification which, in my judgment, is not limited to the protection of other Convention rights but is large enough to protect the right of others to live in peace and free of fear. (c) If such protection amounts in the particular case to a pressing social need, as in the present case as it plainly did, then the balance between it and the primary right is struck by asking whether a possession order, and if so an immediate possession order, is necessary in order to meet the need and is proportionate to it.
49. As the European Court of Human Rights has recently made clear in its decision in Chapman v United Kingdom 18th January 2001 (a decision to which Schiemann LJ was party as an ad hoc judge of the court), paragraphs 103-104, the impact of an eviction order on the tenant's individual circumstances is necessarily a relevant consideration here.
50. It follows that I agree with what Blackburne J has said, rather more succinctly than I have done, about Article 8 and the Human Rights Act, and with his characterisation of the recorder's order as disproportionate. That is the conceptual element now articulated through the Convention and the Human Rights Act. It is a novel form of reasoning, though, as I have said, I do not believe it introduces anything novel into the way that the courts for many years have approached just this question.
51. One thing that the Human Rights Act does, however, make clear – if it was not clear before – is that discretion is not an apt word for the judge's function in this field. The judge is called upon to make a judgment on an issue which affects things as basic as the integrity of a person's home and the daily peace and well-being of others. As with other judgments, the facts on which it is based are in principle for the judge alone; but what they amount to in terms of reasonableness may, depending upon what the judge makes of them, be open to reconsideration on appeal. This, for the reasons given, is such a case.
52. It has not been necessary to address the question whether Ground 2 of Schedule 2 to the Housing Act 1985, by in some circumstances rendering a tenant liable to eviction because of a visitor's conduct, creates a strict liability incompatible with the Convention. It may be that the question need never arise so long as, in a case like the present, the reasonableness of making an order is conditioned by the extent to which the tenant has it within her power to stop or control the presence or activity of her visitors. If no order for possession, certainly no outright order, may be made without regard to the question of participation or acquiescence on the tenant's part, there will in practical reality be no strict liability to contend with.
53. For these reasons, as well as those given by my Lord Blackburne J, I agree that this appeal should be allowed to the extent which he has indicated, and the suspended order which he proposes substituted for the recorder's outright order.
54. LORD JUSTICE SCHIEMANN: I agree with the judgment delivered by Blackburne J and the order that he proposes. I prefer to leave over for further consideration the wider matters canvassed by Sedley LJ, most of which have not been the subject of full submission and argument in this short hearing before us.
55. For my part, I consider it pretty clear that the judge did exercise a discretion in relation to whether or not he should suspend this particular order. He says specifically at page 7 of the shorter judgment:

"I will, as I have said, consider each family individually and establish whether or not it would be reasonable to order possession or to impose a suspended order. This is a matter, as I have said, of discretion."

56. And he sets out various matters. This is literally two pages before the passage read by my Lord Blackburne J.
57. I however accept Blackburne J's criticism of the judge's failure to spell out his reasoning for not suspending this order, and I agree that this court must exercise, in those circumstances, its discretion afresh.
58. For my part, I have had rather more difficulty than my Lords in arriving at the conclusion to which they have both come. Mrs Gallagher's right to respect for her family life and home is not the only right that is in play in a situation like this and the neighbours also have rights to family life and home.
59. That is, of course, the reasoning which led the Housing Trust and the judge to proceed as they did. Nevertheless, in the light of the view of my Lords I would not feel it right to dissent on the question of discretion.
60. The order that we shall make is that the order below be varied so that the possession order is suspended for a period of two years on condition that there shall be no significant breach of Clause 8 of the tenancy. There will be liberty granted to the Housing Trust if there is a significant breach.
(Appeal allowed; appellant awarded costs in the appeal but not below; legal aid assessment).