England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OLDHAM COUNTY COURT
(HIS HONOUR JUDGE TETLOW)

		Royal Courts of Justice Strand London, WC2 Monday, 2nd December 2002

1. LORD JUSTICE CARNWATH: I will ask Mr Justice Lawrence Collins to give a short judgment.
2. MR JUSTICE LAWRENCE COLLINS: The Ashiana Housing Association owns and manages about 1,400 housing units in Manchester and Lancashire.
3. On 29th May 2000 there was an incident on the Rochdale Estate owned by the association in which a family was attacked by its neighbours. Mr Ali and two of his neighbours were charged with affray and/or violent disorder. Mr Ali pleaded guilty and was sentenced to four months' imprisonment. Another of the neighbours, Mr Rashid, pleaded not guilty and after conviction was sentenced to 30 months and Miss Farooq (the daughter of another neighbour) pleaded guilty and received a conditional discharge.
4. The victims were members of family of Asian origin. The evidence was that Mrs Nasreen Kauser lived there with her six children, several of whom were of very light colour and who were mistaken by their neighbours for white, and suffered abuse since they moved in in about 1993. The victims, the evidence went, were forced to leave because they felt intimidated and unsafe and feared for their lives. The Association sought possession of the units rented by the perpetrators of these acts because it strongly believed that acts of anti-social behaviour could and should not be tolerated. The claims were heard before His Honour Judge Tetlow on 9th and 10th September 2002.
5. By section 7 of the Housing Act 1998 the court is not to make an order for possession of a dwelling house let on an assured shorthold tenancy except on one or more of the grounds set out in Schedule 2. The Association sought possession on grounds 12 and 14. Ground 12 is where any obligation of the tenancy (other than one related to payment of rent) has been broken or not performed, and ground 14 is where the tenant or a person residing in the dwelling house 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 has been convicted of (inter alia) an arrestable offence committed in, or in the locality of, the dwelling house.
6. The grounds for possession were admitted, but it was argued that it was not reasonable for a possession order to be made in all the circumstances.
7. The judge was shown a video recording of the incident. After hearing the evidence for the housing association, he informed the parties that he was minded to impose a suspended possession order, and there was a short adjournment during which all of the parties except Mr and Mrs Ali agreed to a suspended possession order (Mrs Rashid for two years and 18 months for the others). This was communicated to the judge who approved the various orders before going on to deal with the case of Mr and Mrs Ali.
8. It is apparent from the transcript that he took into account the fact that the victim was frightened to come back. Counsel for the association and for Mr Ali agreed to deal with the case without calling oral evidence.
9. Counsel for Mr Ali addressed the judge on reasonableness, and relied on these factors: (a) that the incident had occurred more than two years before, and there had been no further incidents (although the judge pointed out that was because the victim was not there); (b) Mr Ali's seriously bad health; and (c) that Mrs Ali was not implicated in the incident, at least so far as the charges went, although she was present.
10. The judge ordered that a possession order suspended for 18 months was the appropriate order, and permission to appeal was refused. Carnwath LJ refused permission to appeal on the papers on 12th November on the ground that all the relevant matters were put before the judge, and that the judgment showed that he gave proper attention to the issue of reasonableness in the light of the factors special to Mr and Mrs Ali.
11. By section 7(4) of the 1988 Act, if the court is satisfied that any of the grounds is established, then the court may make an order for possession if it is reasonable to do so, and by section 9 the court may adjourn for such period or periods as it thinks fit the proceedings for possession, and on the making of an order for possession the court may stay or suspend execution of the order or postpone the date of possession.
12. Three grounds are relied on in the application, although only one of them was pressed this morning.
13. The first was that there is a three-stage test to be applied. Firstly, is there a breach? That of course in this case is conceded. Secondly, is it reasonable for the court to grant an order for possession? Thirdly, whether the proceedings should be adjourned or whether the order should be stayed, suspended or postponed.
14. It was submitted that the judge moved from the first stage to the third stage, and that whether it is reasonable for a possession order to be granted is a very different consideration from the issue of whether it is reasonable to suspend it.
15. The second matter relied on in the papers, but not before us today, was that the judge was guilty of procedural unfairness in that he was influenced by the agreement of the other tenants to a suspended possession order.
16. The ground on which primary reliance was placed this morning was that it was a perverse and unreasonable decision to make an order for possession in the absence of any further findings of nuisance against Mr and Mrs Ali since May 2000 (which is more than two years before the date of the hearing) and in the light of Mr Ali's state of health.
17. It was submitted that in the absence of any finding of further breaches or anti-social behaviour, and in the absence of a finding that it was likely that Mr or Mrs Ali presented a future risk to other tenants, it was simply perverse to conclude that this case passed the reasonableness threshold.
18. In my judgement there is absolutely nothing in these points. To suggest that a judgment of a judge so experienced in these matters was perverse or unreasonable simply because he did not articulate in full his grounds for considering that an order for possession was reasonable seems to me to be impossible in the circumstances of this case.
19. The evidence showed that the incident was a very serious one. It was a result of harassment of a racial character. He had already made it clear in the course of submissions that he thought that a suspended order was the appropriate order in this case. He decided that the right balance between doing nothing -- which was not an option given the nature of the incident -- and making an immediate possession order was reasonable. The middle course was the only one having any potential utility.
20. The only reason for a different approach which could possibly be put forward was the fact of Mr Ali's state of health. But the judge decided that there could be no objection to a suspended order for 18 months. But in view of Mr Ali's state of health he reserved the matter to himself and the order could be brought back to the court. The judge said that sympathy for the defendants had to be balanced against the fact that Mrs Kauser and her family left after the incident and the only interference was that she left because it of it and the fear it put into her.
21. In view of the gravity of the incident he would have been entitled to make an immediate order for possession, and it is clear from the transcript that he did decide that it was reasonable to make a possession order in the light of the seriousness of the incident and its effect on Mrs Kauser. He took into account the only factors pointing in the other direction: the length of time elapsed since the incident and Mr Ali's state of health. It could never be seriously suggested that this could be a perverse judgment.
22. In my judgment, the application should be dismissed.
23. LORD JUSTICE CARNWATH: I agree.

ORDER: Application for permission to appeal refused; detailed assessment of the applicant's Community Legal Services Funding certificate.

(Order not part of approved judgment) ______________________________