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 THE TAMESIDE COUNTY COURT
(HIS HONOUR JUDGE ARMITAGE QC)

		Royal Courts of Justice Strand London, WC2
		8 March 2004

1. LORD JUSTICE POTTER: This is an appeal by the claimant, New Charter Housing Limited, as successor in title to Tameside Metropolitan Borough Council as landlord of houses on an estate in Droylsden, Tameside ("the premises"), in particular premises at 2 Hus Street, Droylsden, let to the defendant, Ruth Ashcroft, under a secure tenancy under Part IV of the Housing Act 1985.
2. The appeal arises in proceedings for possession taken by the claimant against the defendant arising out of the behaviour and activities of her 17-year old son, Damon, who, on 13 March 2003, was made subject to an interim Anti-social Behaviour Order and (on his later conviction of breach of that order) on 10 July 2003 was made subject to a full and final Anti-social Behaviour Order under section 1C of the Crime and Disorder Act 1988.
3. The order appealed against is that of His Honour Judge Armitage made on 19 August 2003 in the Tameside County Court, whereby he granted to the claimant an order for possession of the premises suspended for 12 months subject to certain conditions.
4. The proceedings were issued on 21 May 2003, reciting some 28 acts or incidents of alleged nuisance committed by Damon Barnes, either personally or with a group of youths with whom he associated on the estate. By her defence dated 27 May 2003, the defendant admitted that the behaviour of Damon "may have caused some disturbance to neighbours", but denied any personal involvement in making a disturbance or causing any nuisance. She stated that:

"Damon's behaviour has improved recently and there are grounds for confidence that the improvement is permanent, so that there will not be any recurrence of any nuisance behaviour."

5. In fact, two days later on 29 May 2003, Damon committed an offence under section 4 of the Public Order Act 1986 followed by a further offence under section 4A of that Act on 5 June 2003 for which offences he was convicted on 10 July 2003 together with a breach of the interim Anti-social Behaviour Order.
6. The precise nature of the Public Order Act offences is not clear, but on 10 July 2003 Damon was sentenced to six months' detention and training order on a finding that he had:

"Used and engaged in offensive, threatening and intimidating language and behaviour against other members of the public."

7. At the hearing before the judge, the witness statement of Miss Lane, the claimant's tenancy compliance officer, presented the case for an immediate order for possession at paragraphs 9 to 11 and 18 to 21 of her witness statement as follows:

"9. The Claimant initially had 4 witnesses living on the Fairfield estate. However, they have all now left. Two of the witnesses have now also withdrawn from giving evidence. One of them sold her property on the estate and moved elsewhere, whilst the other, who lived next door to the Defendant, abandoned her property and left without telling anyone where she was going. She had told residents that she did not want to be found and was no longer willing to give evidence due to fear of reprisals.

10. I believe these witnesses moved as they could no longer live with the harassment and intimidation carried out by the Defendant's son and/or his friends. Although they are now away from the estate, they are still fearful of reprisals and the possibility that the Defendant and her family may find out where they live.

11. The remaining two witnesses, Dianne and Gary Beckett, were moved off the estate by the Claimant. The Claimant had no option but to do this as the couple were suffering terrible harassment and intimidation. The windows of their house were smashed, their car tyres were slashed and their son bullied and intimidated by friends of Damon Barnes. They became so vulnerable in the property that whilst they remained there, the Claimant installed extra security measures in the form of security doors, a fireproof letterbox, a security light and a surveillance camera. In addition, the Police had to install a homelink alarm in their property so that immediate Police assistance was available to them.

....

18. As Damon Barnes is now imprisoned in a Young Offenders Institution, the situation is temporarily quiet. However, as our resident witnesses are no longer living on the estate and we believe we no longer have any residents left on the estate who are brave enough to report incidents of nuisance and anti-social behaviour, it is difficult to say how the situation really is.

19. The Defendant's son could be released from the Young Offenders Institution as early as September 2003, to return to live with the Defendant. I have no doubt that he will continue with his behaviour and that the Defendant, in breach of her tenancy terms and conditions, will allow this to take place. She has already allowed her son to breach 2 interim Anti-Social Behaviour Orders.

20. Notwithstanding the Anti-Social Behaviour Orders obtained, Damon Barnes' behaviour has not changed; nor has his mother, our tenant, exercised any greater control over his behaviour and actions.

21. The lives of residents on the Fairfield estate have been made a misery. The Claimant no longer has any witnesses living on this estate. These witnesses had made their homes on this estate and had wanted to remain there as part of the community. However, due to the behaviour of the Defendant's family and/or friends, this was impossible for them. The Defendant has continued to breach her tenancy throughout these proceedings, by causing and/or allowing to be caused, nuisance and annoyance to those living in the locality of her home. I do not believe that this will change."

8. The evidence before the judge as to the activities of Damon, and the lack of any real attempt on the part of the defendant to control his activities, was dealt with by the judge on the basis of agreed facts by reference to a schedule prepared by counsel for the defendant, two witness statements of Diane Beckett (a neighbour) and a witness statement from Mr Byrom and Miss Khan, employees of the claimant. The schedule of agreed facts cover the following matters:

2002.

On 5 August Damon and his friends attempted to damage the fencing of neighbouring property.

On 11 August between 11 pm and 00.30 am Damon and several youths attempted to take the wire fencing of a nearby property.

On 15 August at 7.35am Damon threw stones into a neighbour's garden and at the living room window.

On 23 August Damon and his friends hammered on the neighbour's fence attempting to damage it. He was seen with a bottle at the neighbour's gate and later broken glass was found on the neighbour's path near the gate.

On 24 August, between 00.45 am and 1.20 am, Damon and a group of youths were play fighting on the estate and pushing each other into neighbours' cars. They were attempting to tamper with the locks on a neighbour's car.

On 26 August from 10.30 pm onwards Damon was present when a fire was started near a neighbour's fence.

On 27 August Damon approached two neighbours and said to one of them, "Don't go out alone because I am going to fucking beat you up". This caused the neighbour to be intimidated and frightened.

On 6 November Damon abused Wendy Gorton.

On 8 November he harassed employees of the claimant visiting the estate.

On 26 November he tried to break into an empty property.

On 27 November he persistently banged on a neighbour's fence.

On 28 November he kicked the shutters of an empty property an rode round and round the estate on a motor scooter.

On 6 December he let off fireworks irresponsibly and abused neighbours.

On 7 December he, with others, again let off fireworks irresponsibly and harassed a neighbour.

On 18 December he hid in bushes below the window of a neighbour.

2003

On 27 January Damon congregated with others, one of whom threw a large lump of mud at a neighbour's window.

On 13 March, the Interim Anti-social Behaviour Order was made against him.

On 15 March he associated with others who were riding trail bikes around the estate, thereby breaching the Interim Order.

On 16 March he was with one or two other youths when one of them threw a piece of wood at a neighbour's gas vent. He was later seen pointing out the houses of the Becketts, and others who were witnesses against him, to a friend.

On 5 June he was arrested for breach of the Interim Anti-social Behaviour Order in respect of the Public Order Act offences previously mentioned.

9. So far as the defendant herself was concerned, the gravamen of the case against her personally was that she failed to control Damon and/or prevent him from committing the various acts of nuisance complained of. In addition to that single failure there were two particular matters raised against her, in respect of which the judge expressed himself satisfied. First, that she had herself uttered words which he was satisfied were intended as a threat to her neighbours in an interview with the claimant's investigations officer whose evidence was not challenged. The evidence was as follows:

"Miss Ashcroft then said she admitted her son, Damon Barnes, was no angel, but if he and she were 'thrown out' --

(a) she would not go quietly.

(b) (words to the effect that) 'Damon's friends would be upset, and would really sort out the neighbours who had given evidence.' She did not make these comments or threats in a flippant manner but in a matter-of-fact tone."

10. While the defendant was aware of her need to control the behaviour of her son, the threat of the possession proceedings have not caused her to seek to modify his behaviour and neither prior to, nor in the course of, the proceedings has she expressed any desire or intention to do so (see paragraphs 14, 16 and 19 of the judgment below).
11. The proceedings for possession as originally pleaded were based on breach of a specific clause in the tenancy agreement and three of the grounds set out in Schedule 2 of the Housing Act 1988, namely ground 10, arrears of rent; ground 11, persistent delay in payment of rent; and ground 14, nuisance. However, at the hearing before the judge, the matter was pursued and dealt with under ground 14 only, which provides that the court may order possession where:

"The tenant or a person residing in or visiting the dwellinghouse --

(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...."

The judge said that, upon the evidence before him, he found there to be "the clearest possible case made out under ground 14". However, because ground 14 is contained in Part II of Schedule 2 ("Grounds on which a Court may order possession"), rather than under Part I ("Grounds on which a court must order possession"), the judge then rightly proceeded to ask himself whether, in all the circumstances of the case, it was reasonable for him to grant an order for possession. He decided that it was. However, he went on to decide that, in all the circumstances, the order would be suspended for 12 months.

12. The judge's decision that in principle an order for possession should be made, was based on the following reasoning. He acknowledged that the allegations of misconduct were not made against the defendant personally. However, he stated:

"I do not believe that she does not understand her obligation to control, so far as she can, the antisocial activity of her children. The interim antisocial behaviour order, the order itself, the circumstances leading to its breach and the detention of Damon Barnes all occurred after the claimants started this action for possession against her. The mere threat of those possession proceedings appears not to have caused her to seek to modify Damon's behaviour."

The judge was of course correct to hold that the fact that the misconduct constituting the nuisance was not that of the defendant herself but that of an unruly child, was no barrier to the making of a possession order. Ground 14 applies to any person residing on the premises.

13. This court was concerned with a situation of a similar kind in Kensington and Chelsea Royal London Borough Council v Simmonds [1998] 29 HLR 507. At page 511 Simon Brown LJ gave short shrift to the argument of counsel that a degree of personal fault was required in such a case to make it reasonable to make no possession order. He said:

"The essential submission in this regard is that, nevertheless, before any possession order could ever properly be made pursuant to this ground, the plaintiffs would have had to prove some particular degree of personal fault on the tenant's own individual part. In the case of nuisance and annoyance occasioned by an ill-disciplined and uncontrollable child in the age bracket of, say, 12 to 15 years (as in this case) namely, a case concerning a child too old to control but too young to put out of the house, that may well be impossible. The parents of such a child, submits [counsel for the tenant], cannot in the result be dispossessed under this legislation.

I would firmly reject this argument. To my mind, it finds no support in the authorities or in common sense or in justice. Still less is there any warrant for it in the language of ground 2, itself a provision which was amended in 1968 to its present form.

....

As to the justice of the position, it must be remembered that not only are the interests of the tenant and her family here at stake; so too are the interests of their neighbours. It would in my judgment be quite intolerable if they were to be held necessarily deprived of all possibility of relief in these cases, merely because some ineffectual tenant next door was incapable of controlling his or her household."

14. The judge went on to acknowledge that, in favour of the defendant, it was not just herself and Damon but her other children who lived in the property and that to lose the tenancy would be an immediate disaster for herself and her family. Nonetheless he observed:

"16. ....But she has an obligation to ensure that her family does not cause a nuisance to her neighbours, and it seems to me likely that if she set her mind to it, with her partner's assistance, she could do more to curb Damon's excesses than she has done.

17. It seems to me in the context of this legislation, which is designed to provide for the regulation of neighbours' conduct in relation to each other, that it is reasonable on the basis of the allegations which are admitted and which I have reviewed briefly to make an order for possession.... However, that is not the end of the matter, because the court is also required in these circumstances to go on to consider whether it is reasonable to suspend the making of that order, and that, I suspect, is the real debate between the parties in this case ultimately."

15. The judge, having ordered the claimant to have possession of 2 Hus Street, further ordered that:

"(2) The Order for Possession be suspended for twelve months from 19 August 2003 on condition that there be no breach of Clause 9 of the tenancy agreement or any conduct falling within Ground 14 to Schedule 2 of the Housing Act 1988."

16. I observe that, despite the terms of the judge's order, which at first reading might suggest that at the end of the suspension period of 12 months the order for possession would then take full effect, there is no dispute between the parties that the intention of the order was to limit to a period of 12 months the risk to the defendant of expulsion from the premises on proof of breach of the conditions imposed, so that thereafter it would be necessary for fresh proceedings to be taken if Damon resumed his behaviour after the period of suspension was spent.
17. The judge stated the grounds on which he decided to suspend the order as follows:

"18. The claimants urge that I should make an immediate order and not suspend it. They argue that there is no indication here that Ruth Ashcroft has in the past or will in the future act by herself or others to curb Damon's misconduct. There is no real evidence, pending his release from custody, that the threat of an antisocial behaviour order had the desired effect on Damon so far as his conduct was concerned. There is, therefore, the claimants argue, no prospect of improvement in his behaviour and no prospect of relief from Damon's misconduct once he is free in the community again. They also say that it has been difficult enough to mount his case against Damon and his mother, having regard to the fear engendered in potential witnesses in this sort of case, and that the prospects of proving breaches if they occurred may well be quite small. Mr Derbyshire did not quite articulate this argument, but I suspect that it underlies what he was saying -- namely, that if witnesses believe that they have been let down on this occasion, why would they risk their property to try to enforce the matter on a future occasion? Those are worries which I do not dismiss lightly.

19. Mine nonetheless is a task which requires the balancing of rights and the balancing of obligations, and the way I see it is this. Whilst I am not enormously optimistic about Damon's conduct once he is released from custody, it does seem to me that there is here an opportunity to allow Ruth Ashcroft if she wishes to demonstrate that with or without the help of her partner and with or without the help of her other children, who are also going to be affected by this, she can and will curb Damon's conduct, if he is minded to misbehave when he is released from custody. It is for that reason -- although she has not expressed a desire or intention to do it -- and for that reason only that I take the view that it would be reasonable to suspend the order in this case, making it absolutely clear as I do that if there is a further breach of the tenancy or conduct falling within Ground 14 of the schedule to the Housing Act in the future, certainly if the matter comes before me, unless there are extraordinary mitigating circumstances or facts which tend against this result, I would have no hesitation but to order the eviction of the defendant."

18. The grounds of appeal in this case recognise that the decision of the judge whether or not to suspend the possession order involved the exercise of the judge's discretion in all the circumstances of the case. Mr Darbyshire, for the appellant, has conceded that the discretion of the court to suspend the possession order under section 100(2) and (3) of the Rent Act 1977 is at large and that:

"The duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing .... in a broad common sense way .... giving weight as he thinks right to the various factors in the situation."[per Lord Green MR in Cumming v Danson [1942] All ER 653 at 655].

19. The same is true of section 85(2) and (3) of the Housing Act 1985. In that respect:

"The Court of Appeal will not interfere with an exercise of the judge's decision to suspend an order unless satisfied that the judge has taken into account some matter which he should not have taken into account or has left out of account something which he should have taken into account, or that for some other reason the decision is plainly wrong." (see Raeuchle v Laimond Properties Limited [2001] 33 HLR 10; and Greenwich London Borough Council v Grogan [2000] 33 HLR 12 both decisions of this court.)

20. However Mr Darbyshire asserts that the conclusion to which the judge came in this court is plainly wrong. In that connection it is said that the judge failed to attach any or sufficient weight to the various factors listed in the skeleton argument attached to the notice of appeal. He attached too much weight to his wish to give the defendant an opportunity to show that she could moderate her son's behaviour. The factors listed read:

"(a) The defendant did not offer any particulars as to how she would moderate Damon's behaviour. There was no suggestion that he would live elsewhere on his release from prison. She showed no remorse for what he had done.

(b) Damon's unacceptable behaviour continued long after the proceedings were served upon the defendant.

(c) The ASBO imposed on Damon appears to have had no effect whatsoever. He received a 6-month Detention and Training Order in respect of offences committed within three months of the Interim Order.

(b) The conduct listed at paragraph 5 [ie that set out at paragraphs 8 and 9 was serious, prolonged and criminal. It made the lives of local residents a misery, to the extent that three families have left the estate.

(e) The Claimant may struggle to prove any breach of the terms of the suspended order. Those witnesses who were willing to give evidence have now left the estate. The evidence supports the contention that witnesses will be harassed and that the Defendant will not seek to prevent such harassment."

It is factors (a) and (e) which Mr Darbyshire has particularly emphasised.

21. Mr Darbyshire referred us to paragraph 19 of the judgment. He submits that the desire of the judge to afford to the defendant an opportunity for her to demonstrate that she would curb Damon's conduct in the future, was a totally inadequate basis for suspending the order. In particular it appeared to overlook, and certainly should not have outweighed, the fact that the defendant made no positive proposals as to how she would address the behaviour of Damon despite being invited to do so in the course of her counsel's submissions.
22. Mr Darbyshire submits that the only proper conclusion on the evidence is that, following Damon's return home from detention further acts of nuisance would be inevitable, or at least probable, as the judge found when he stated that he was not optimistic about Damon's conduct once released from custody.
23. It is submitted by Mr Derbyshire that the instant case is comparable with Camden City Council v Lowe [2001] 33 HLR 583. In that case this court overturned the decision of an Assistant Recorder to suspend the possession order made against the first respondent, a female tenant, on the grounds of an injunction granted at the same time against the first respondent and the second respondent (her partner) restraining them from causing a disturbance to neighbours. The facts of the case were that, over a period of time, the two respondents had made the life of their neighbours, a Mr Schofield and his family, a complete misery through their own acts of assault, aggression and harassment, as well as committing various such acts in respect of other neighbours. Kay LJ cited at paragraph 24:

"There is no point suspending an order if the inevitable outcome is a breach. Any factor which is relevant as to whether there will be future breaches must, in my judgment, be relevant to the question of suspension. This would include the fact that following an injunction things had considerably improved or that a person is likely to observe an injunction if one was granted at the same time."

Kay LJ went on to say at paragraph 29:

"The concern I have in this matter is that the assistant recorder gave specific reasons for suspending the order, namely the existence of the injunction, its effect since it was made and the second respondent's expression that he hoped common sense would prevail. If those are capable of being good grounds for suspending, then any other view could only be imposed if the decision was plainly wrong."

24. Kay LJ, with whom Waller LJ agreed, nonetheless went on to hold that the decision of the Assistant Recorder as to the likely effect of the suspended possession order was inconsistent with certain findings which he had earlier made and that the suspension could not be justified in the manner suggested. In those circumstances the court considered the position de novo. It concluded that the suspension should not have been granted. In addition to the particular circumstances of the case, the three factors to which importance was attached were (a) the difficulty in proving the breach of the suspended order, ie the difficulty of getting witnesses to come forward; (b) the need to support those who had already had the courage to come forward and complain (see paragraph 35 per Kay LJ); and (c) the fact that granting an injunction in this type of case is unlikely to diminish the fear that neighbours feel. The Schofield family and other neighbours having apparently lived in fear, it was most unlikely that such fear would be alleviated by the grant of an injunction. The only measure which would cure that element of the case was an immediate order for possession. In those circumstances the appeal was allowed. Mr Darbyshire submits that the same reasoning should be applied in this case.
25. In the skeleton argument lodged on behalf of the defendant, the point is emphasised, which we readily accept, that this court should not lightly interfere with a decision of a judge exercising discretionary powers in a case of this kind. It is submitted that it is plain that the judge was not satisfied, as the court in the case of Lowe was satisfied, that the inevitable outcome of suspending order was that there would be further breach. Having considered the matter carefully in the light of the relevant legal principles, and having taken into account the seriousness of the nuisance and the conflicting evidence of the parties, the defendant's family and of the neighbours, the judge came to a conclusion which was properly open to him.
26. Mr Darbyshire submits that, in putting his decision to suspend on the basis of allowing the defendant an opportunity to demonstrate that she could curb Damon's conduct, the judge must have had in mind not merely the existence of the Anti-Social Behaviour Order, but the possibility if not the likelihood that, on release from custody in respect of its breach, Damon would abide by its terms. That was not a fanciful consideration because, in the light of Damon's age and the fact that it would be his first custodial sentence, there was a realistic possibility that he would have seen sense, learned a lesson and would henceforth comply with the Anti-social Behaviour Order.
27. Miss Morris, who has appeared pro bono, at short notice but with great skill for the defendant, has submitted that comparison with the decision in Lowe does not assist the claimant. In that case it was predominantly the adult tenant and her partner who were the active cause of the nuisance, their evidence in denial being rejected by the trial judge. The allegations proved against them were threats and violence in a situation where the interim injunctions relied upon had only been in place for a week at the time of the judgment in the possession action. The court felt able to assert in that case that further breach of the injunction and/or suspended order was inevitable. That could not be said on the facts of this case.
28. In this case, the nuisance alleged is against the defendant's son and not the defendant personally. The judge made no criticism of the defendant's veracity, only of her failure to control her son's acknowledged bad behaviour. The committal to detention of Damon for his breach of the Anti-social Behaviour Order should not only demonstrate to him that such order had teeth, but might reasonably give rise to the view that the punishment already inflicted would sufficiently ensure Damon's future good behaviour.
29. Miss Morris has referred us to the decision of the Court of Appeal in West Kent Housing v Davies [1999] 31 HLR 415 as demonstrating that, in even in a bad case of prolonged racial harassment over a period, the court was prepared to grant a suspended possession order rather than one taking outright effect where not to do so would have resulted in great hardship to the offending family.
30. Having considered the matter carefully, I accept the submissions of Mr Darbyshire. I consider that are three respects in which the judge's decision can properly be criticised, all of which demonstrate a mis-exercise of his discretion. First I do not feel able to accept, because the judge did not so state, that in reaching his decision he relied on an assumption or assessment that, following his release from custody, Damon would not be likely to resume his behaviour. The judge's observation as to his absence of optimism in that regard, indicated the opposite. That being so, I would take at face value the judge's statement that the purpose of suspending the order was to give the defendant a last opportunity to demonstrate that she could and would curb Damon's conduct. That leads to the second point.
31. The judge, again on his own findings, had no reason to suppose that she would take such opportunity. Not only had she (i) failed to respond to the pressure of the imminent possession proceedings; but (ii) she, herself, uttered the threat in October as to what would happen if she and Damon were "thrown out" from their home; and (iii) in the face of invitation in the course of proceedings, she failed to express any intention to control Damon's conduct in the future. There was thus no sound basis on which to give her the benefit of any doubt or to grant her the opportunity given.
32. The third point of importance is that, while the judge paid lip service to the interests of the neighbours and in particular the difficulties of proving breach of the conditions imposed in the order, he proceeded to ignore them, despite the clear indication in the case of Lowe that such considerations are of importance in cases of this kind. In these circumstances, it seems to me that this court may properly interfere with the judge's exercise of discretion and substitute its own view of the order which should have been made.
33. In my opinion, harsh as it may seem, the tenant and her family had done nothing to encourage the judge in the view which he took. In the case of West Kent Housing v Davies, cited by Miss Morris, Robert Walker LJ stated at page 425:

"My only doubt is as to whether or not the order should be suspended. If the judge had come to the conclusion that the order should not be suspended, I would not for my part have thought it right to interfere with that exercise of his discretion. However, in view of the family circumstances of Mr and Mrs Davies (which are on any view difficult), and the real prospect (from what we were told in the course of this hearing) that they have now learned their lesson and realised that antisocial behaviour will not be tolerated, I have, with some hesitation, come to the conclusion that the right course would be to suspend the possession order under section 9(2) of the Act."

34. In my view, on the findings he had made, the judge had no such real prospect before him in this case. I would set aside his order substituting for it an order that possession be given to the claimant in six weeks from the date of this decision.
35. LORD JUSTICE LATHAM: I agree.
36. LADY JUSTICE ARDEN: I agree.
Order: Appeal allowed with costs to be assessed if not agreed. Claimant to have possession of the property 6 weeks from the date of this judgment.