England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE KNOWLES)
LOWER COURT No. 4E005577

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2008

Lord Justice Wilson:

1. The appellant, Ms Webb, is the tenant of a property at 303 Danebury Avenue, Roehampton, London SW15. The landlord is the London Borough of Wandsworth ("the local authority"). She has a secure tenancy under the Housing Act 1985. Ms Webb appeals against a postponed order for possession of the property made against her in favour of the local authority by Her Honour Judge Knowles in the Wandsworth County Court on 9 October 2007. The order was that Ms Webb should give possession of the proerty but that the order should be postponed, and accordingly that her tenancy should continue, for so long as there was compliance with three conditions set out in the order. The order went on to provide that the order for possession, thus postponed, should remain in being until 7 January 2009. As a result, largely, of confusion as to whether Ms Webb's appeal lay to the High Court, Queen's Bench Division, or to this court, the appeal comes on for hearing only today, 12 November 2008, thus only eight weeks prior to the expiry of the order. The local authority have not contended that any of the three conditions has been broken. Thus the issue raised in the appeal will, one hopes, shortly become academic. But it is not yet academic even in temporal terms; and, even following its expiry, it may in the future be prejudicial to Ms Webb in various respects that the order was made against her. So we have heard argument from counsel in support of, and in opposition to, the appeal.
2. Ms Webb is now aged 42. At the time of the hearing before the judge, which proceeded on 8 and 9 October 2007, three children and one grandchild of Ms Webb were residing with her in the property. The children were a girl then aged about 18, another girl then aged about 17 and a boy then aged about eight; the age of the grandchild is not clear. Until February 2007 another of Ms Webb's children had been living there with her, namely a boy, O, who was born on 1 April 1992 and was therefore aged 15 at the time of the hearing. O's antisocial and criminal misbehaviour in the locality of Ms Webb's home formed a major subject of the evidence before the judge. At first sight it would seem to be of great significance that in February 2007 O had left Ms Webb's home and moved to live in the home of his father in Croydon. But some of the evidence given to the judge diluted its significance: for the mother herself said that O continued to visit her home on some two or three occasions each week and that he also visited the home of his child, and of the mother of his child, every day and that such was only two minutes' walk away from Ms Webb's home.
3. In stating that she was postponing the making of the possession order against Ms Webb, albeit on conditions, rather than actually then making a possession order, to be suspended on such conditions, the judge at any rate made it admirably clear that, for so long as the conditions were complied with, Ms Webb's tenancy continued and she was not relegated to the status of a tolerated trespasser. The judge also directed that no warrant of possession should issue without notice to Ms Webb and the permission of the court. Ms Beecham, who appears on behalf of the local authority today as she did before the judge, confirms to us that, at any further hearing precipitated by such direction, Ms Webb would be able to argue not only that no breach of condition had occurred but that, if it had occurred, there were circumstances which should nevertheless lead the court not to authorise the issue of the warrant.
4. The three conditions upon compliance of which the making of the order for possession was postponed were that:

(a) O should not reside at the home;

b) neither Ms Webb nor anyone residing at the home nor any invited visitor to the home should cause nuisance or annoyance to anyone lawfully in its locality; and

c) Ms Webb should abide by clause 37 of the conditions of her tenancy.

5. Clause 37, drafted in such a way as to address Ms Webb herself, provided:

"You, your lodgers, friends, relatives, visitors and any other person living in the property must not do any of the following:

…

Do anything which causes or is likely to cause a nuisance to anyone living in the local area

Do anything which interferes with the peace, comfort or convenience of other people living in the local area

Cause damage to property belonging to other people or council property in the local area

…

Threaten or harass or use violence towards anyone in the local area."

Let us assume (for we have not heard argument about it and it is unnecessary to decide it) that the reference to relatives, and indeed to friends, should be construed as limited to those who are living in the home or at any rate visiting it at the relevant time.

6. The judge's order for possession was made under s.84 of the Housing Act 1985 which provides as follows:

"1. The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.

2. The court shall not make an order for possession --

(a) on the grounds set out in Part 1 of that Schedule… unless it considers it reasonable to make the order."

The local authority's case was that there were two grounds, both set out in Part 1 of Schedule 2 to the Act, on which the order for possession should be made. They alleged, first, that, within the meaning of ground 1 in Part 1 of Schedule 2, the obligations of the tenancy, specifically those in clause 37, which I have quoted, had been broken. They alleged, second, that, within the meaning of gound 2 in Part 1, a person residing in the dwelling-house, namely O, had been convicted of an indictable offence committed in its locality. It was not in dispute before the judge that at any rate one of those grounds existed, namely the second, in that on 25 October 2006 O had been convicted of a robbery committed in the locality of the home. It is clear that the judge also found that there had been numerous breaches of the obligations of the tenancy contained in clause 37 as a result of O's misconduct while living in the home and thus that the first ground also existed.

7. The live issue before the judge was whether it was "reasonable to make the order", even a postponed order for which alone the local authority contended, within the meaning of s.84(2)(a) of the Act. The judge concluded that it was reasonable to do so. Today, by Ms Conlan, who appears for her as she did before the judge, Ms Webb seeks to persuade us that it was not open to the judge to reach that conclusion and, in particular, that the way in which she did so was legally flawed.
8. Ms Webb became a tenant of the home in January 2004. The local authority placed before the judge evidence of 23 occasions when O had allegedly committed antisocial, violent, or other criminal acts in the locality of the home, as a result of which, so they said, other tenants in the locality had been put in fear and one family had even moved away. The judge found all 23 allegations proved: they spanned the period from February 2005 to September 2006. The allegations of misconduct on the part of Ms Webb personally, as opposed to misconduct on the part of a son then resident with her and for whom she was responsible, were few; and only one of them did the judge ultimately find to have been established. Against Ms Webb personally there had been eight allegations, spanning the period from March 2004 until May 2006, in relation to her dumping of household rubbish outside the home, her playing of loud music and her holding of a noisy party. The judge punctiliously considered each of these allegations and found that none was established save that in February 2005 she had played -- or had responsible for the playing of -- loud music at the home and had thereby disturbed the neighbours.
9. In relation to O there is no need for me to recite the detail of all 23 incidents. It is convenient to note that, among the various strategies adopted by the local authority in order to contain his behaviour, they and he had entered in March 2005 into an Acceptable Behaviour Contract, which Ms Webb had countersigned. Thereafter, however, O's behaviour had become still worse. I will refer only to four subsequent incidents, being the four for which he was later charged and convicted in the Youth Court.
10. First, on 28 May 2005, O assaulted a boy on Danebury Avenue; on 20 February 2006, in the Balham Youth Court; he was convicted of common assault in that regard and was sentenced to a supervision order and a curfew. Second, on 5 July 2005, O was arrested for carrying a knife; on 12 July 2005 he was convicted in that regard of carrying an offensive weapon and a referral order was made. Third, on 30 May 2006, O smashed a car window in Danebury Avenue and stole a satellite navigation system; on 25 August 2006, in the Balham Youth Court, he was convicted in that regard and was made subject to a further supervision order and a further curfew. Fourth, on 11 September 2006, O perpetrated a robbery, being robbery to which I have referred, in the locality of Danebury Avenue; on 11 September 2006 the conviction to which I have referred was recorded against him in that regard, but there seems to be no evidence about the sentence then imposed upon him.
11. Meanwhile, in September 2006, the local authority had decided to apply both for an Anti-Social Behaviour Order against O under s.1 of the Crime and Disorder Act 1998 and for possession of the home against Ms Webb. On 18 October 2006, in the South Western Magistrates' Court, an interim ASBO was made against O and on 8 January 2007 the court made a full ASBO against him, to endure for a period of two years, i.e. until 7 January 2009. As Judge Knowles noted, the mother supported the making of that order against O. One of the conditions attached to the ASBO was that O should not enter a defined zone; but Danebury Avenue was not included within it. A month later, as I have said, O moved to live with his father but thereafter he frequently returned to Danebury Avenue, including to Ms Webb's home, as a visitor.
12. It was an important fact that, at the hearing before the judge in October 2007, the local authority did not make any allegation of misconduct against O occurring after the date of the robbery, which had of course occurred more than one year previously. The judge was, however, told that, following the making of the full ASBO, there had been no less than three prosecutions of O for breach of it but that they had resulted in two acquittals after evidence was heard and another acquittal following discontinuance in the light of the absence of a prosecution witness.
13. As Ms Conlan ultimately accepted in the dialogue in court today, a decision that it is reasonable to make an order for possession, unlike a decision to postpone or to suspend any such order, is not properly described as a discretionary decision. Nevertheless the width of the adjective "reasonable" makes it difficult for an appellant to challenge a judge's conclusion that it applies: for the adjective can embrace different views, albeit clearly not every view, which can be taken of the relevant circumstances. In that I have come to the conclusion that Ms Conlan inflicts one fatal wound upon the judge's rationalisation of the issue whether it was reasonable to make the order, I propose to deal first and relatively summarily with Ms Conlan's other points.
14. Thus in my view, and contrary to her submissions, the judge adequately, indeed expressly, considered the major planks of her case, namely first that there was, in the judge's words, "very little culpability on the part of Ms Webb personally." Such was undoubtedly relevant. Nevertheless it is worthwhile in this regard to recall the words, often since cited, of Simon Brown LJ in the decision of this court in Bryant v Portsmouth City Council [2000] 32 HLR 906 at 913 that:

"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."

That there was by then in place an ASBO against O and that there were no proven breaches of it were also major planks of Miss Conlan's case which the judge expressly addressed. The judge also noticed that O had moved home but recognised, as I have suggested, that its significance was diminished by the frequency with which, as a visitor, he was returning to the locality and in particular to the home of Ms Webb. The existence of the ASBO was, in truth, a double-edged sword. For, although it raised some hope that previous breaches of the tenancy agreement by virtue of O's misconduct might not recur, it illumined the seriousness of past breaches. In this regard the judge rightly reminded herself of the remarks of Neuberger LJ in this court in Knowsley Housing Trust v McMullen [2006] HLR 843, at [45], that the existence of an ASBO might justify what he described as suspension of the order for possession or even in some cases dismissal of the claim for possession but that, in most cases in which the nuisance had been sufficiently grave to justify an ASBO, a mere dismissal of the claim might well be difficult to reconcile with the factor, properly to be weighed within the notion of reasonableness, which is conveniently described as "community protection". Indeed in the decision of this court in Manchester CC v Higgins [2006] HLR 261, at [36], Ward LJ, in surveying the discretion whether to postpone or suspend the order, suggested that, were misconduct of a tenant or even of a member of her household to have been serious and persistent enough to justify an ASBO, such would be strong, albeit not conclusive, evidence that the tenant had forfeited her entitlement to retain possession. If such was strong evidence weighing against postponement or suspension, it seems to me a fortiori that it was strong evidence weighing in favour of the reasonableness of making an order.

15. I would also reject the complaint of Ms Conlan that the judge's decision was flawed by her failure to weigh the local authority's published "Statement of Policy and Procedures in relation to Anti-Social Behaviour in Council Housing". Within that statement is a proposition that a possession order may be used in relation to anti-social behaviour in circumstances where there has been a serious such problem "and previous action has not resolved" it. Ms Conlan's argument was and is that, at the time of the hearing before the judge, it was too early to say that the local authority's previous action in obtaining an ASBO against O had not resolved the problem. But the evidence was that a number of other previous actions on the part of the local authority, not only the entry into an Acceptable Behaviour Contract but other attempts to reason with O and to warn Ms Webb, including by a notice seeking possession served upon her in 2005 upon which the local authority had not proceeded, had all failed to curb O's misbehaviour. So, even if -- which I do not regard as straightforward -- it was possible for Ms Conlan to deploy a local authority's statement of general policy in an analysis of reasonableness in a particular case, the proposition in this local authority's Statement of Policy was, in my view, not engaged. Indeed the two decisions of this court in Knowsley Housing Trust and Manchester CC make clear that, although in some cases it may be reasonable to await the effects of the ASBO, it would in most cases be unlikely to be otherwise than open to a judge to take the contrary view.
16. Ms Conlan also complains about part of the judgment, in which, after having resolved to make an order for possession, the judge was considering whether to postpone it. The judge said as follows:

"A postponed order … may be a powerful incentive first of all to [Ms Webb] … to exercise what degree of control she can over [O], and secondly the message will go to him that if there were to be a situation in which he was involved when a lawful visitor to the property then he puts his mother's and siblings' home at risk of an outright possession order."

In this regard the charge is that the judge here betrayed the fact that she was using -- Ms Conlan would say misusing -- her power to make a possession order in order to impose a further sanction upon a youth with an extremely bad history of misbehaviour. I would reject that charge. Although, as Ms Conlan points out, it was not in dispute that, if a possession order were to be made, it should be postponed, I find it neither objectionable nor surprising that the judge should have adverted to the merits of exercising her discretion to postpone the order. In that regard it was, in light of the fact that the root problem in the case was that Ms Webb had allowed her home to be used by O as a base for misbehaviour substantially inimical to the interests of the local community, an entirely relevant consideration for the judge to speculate that a postponement might, in the light of O's realisation of the consequences of breach, contribute to a containment of his behaviour. There is no evidence to support Ms Conlan's suggestion that, notwithstanding that the words of which she complains were used by the judge in order to explain that there were merits in postponement, they represented a thread invisible in, yet interwoven with, the judge's prior analysis of whether it was reasonable to make an order. Ms Beecham rightly concedes that, although the problems of containing a third party's behaviour may form an aspect of wider considerations relevant to reasonableness, it would never be proper to make a possession order if the purpose of it, or indeed a purpose of it, was that it would be likely to conduce to the containment of his behaviour. Nothing suggests to me that the judge fell into that error.

17. Although I have just noted the judge's reference to "siblings", Ms Conlan goes on to complain that, in assessing the reasonableness of making an order, the judge failed to survey, otherwise than by that passing reference, the interests of the other members of the household: namely of Ms Webb as a single parent who, according to the evidence, suffered from depression and had previously been the victim of domestic violence so severe that the local authority had installed a panic room in the home; of the three children and of the grandchild. Ms Beecham accepts that it would have been better for the judge to have weighed that evidence and their interests expressly. It was, however, an unreserved judgment and the evidence will have been very well in the judge's mind. She did not refer to it expressly because, in my view, she took the view that -- the history of misuse of Ms Webb's home as a base from which O could strike at the safe and comfortable life of the community, -- together with the feature to which I am about to refer, outweighed the fact that it would be preferable for Ms Webb and the other four children to remain in the home rather than to be evicted and, no doubt with the benefit of housing benefit, to be reaccommodated in the private rented sector.
18. The basis upon which I would allow the appeal relates to the judge's treatment of the unproven allegations that, following the making of the ASBO against him on 8 January 2007, O had breached it. The judge's treatment was in a paragraph which she introduced by saying "Looking at this matter therefore in the round, I come to the following conclusions". First she noted that the exclusion zone attached to the ASBO did not preclude visits on the part of O to Ms Webb's home. The judge then proceeded as follows:

"Secondly that while there have been no proved breaches of the ASBO this has not prevented allegations arising of breaches and that I have noted that in at least one instance the prosecution of [O] had to be abandoned, not on its merits, but because of the failure to materialise of a prosecution witness. I accept that of the other allegations he was found not guilty. However that clearly was applying the criminal standard and not the civil standard with which I am here dealing."

19. I first ask myself whether, proper or improper, this consideration, reflected in these quoted words, formed a material part of the judge's decision. In her next paragraph she summarised matters as follows:

"Taking all those factors into consideration, and by that I mean the following: first of all [O's] frequent return to the estate, secondly his persistent anti-social if not criminal conduct over the period since the family have lived at this address, thirdly the very short period, in relative terms, since the ASBO was made and fourthly the undoubted impact of the behaviour upon neighbours and residents of this estate and I say that having regard to the fact that it is quite obvious from the convictions and allegations themselves that they involve other residents and neighbours and that … at least one family has been obliged to move, then I say that it is reasonable to make an order." (Italics supplied.)

I am driven to say that the second conclusion which the judge had articulated must be considered to have been a material consideration in her overall conclusion about reasonableness. She had described it as her second "conclusion" and in my view Miss Beecham cannot properly finesse it away as being only an "observation"; and, in the summary which followed and which I have quoted, the judge referred to the factors which she had previously identified and made a reference to "allegations" which in my view can only sensibly be read as a reference back to the "allegations", which formed the subject of her second conclusion.

20. So the judge was bringing into the equation the fact that since January 2007 there had been three charges against O in the Youth Court that he had breached the ASBO; that one charge had failed because of the non-attendance of a prosecution witness; and that, albeit that the other allegations had, after hearings, resulted in his acquittal, the justices had been applying the criminal standard of proof rather than the standard apt to the judge's own court. In the proceedings before the judge the local authority had not adduced any evidence in relation to the matters which had formed the subject of the three charges.
21. I am of the view that the judge erred in law in bringing that consideration into her survey of reasonableness. The fact that the three allegations had been made was of nil significance unless, upon a balance of probabilities, they were true. There was nothing before the judge to enable her so to conclude and, in fairness, she did not do so. Nor in my view can Ms Beecham rescue the position by pointing out that previous convictions of O had not seemed to moderate his behaviour.
22. It was correct, but entirely irrelevant, that, had the allegations been placed before the judge, and the evidence in respect thereof adduced, she would have applied a different standard of proof from that which the youth court had applied. The evidence upon which the judge relied in this context amounted to no more than evidence that O might have breached the ASBOs. There are many areas of the law in which judges are required to look to the future; then, of course, possibilities have to be weighed. But, when the scales of justice are brought out in order to determine a dispute as to the occurrence of past events, the mere possibility of occurrence if placed within them moves the scales in no way at all. The above is well illustrated by the recent debate in the family courts, now settled by the decision in the House of Lords in In Re B (Children) (Care Proceedings: Standard of Proof)(CAFCASS intervening) [2008] UKHL 35, [2008] 3 WLR 1. The debate has been whether, when a judge felt unable to conclude that serious harm had been inflicted upon a child but considered that there was a real possibility that such harm had been inflicted, the real possibility could found a conclusion that the child had suffered significant harm or that another child, such as a sibling, was likely to suffer significant harm. The firm decision of the House of Lords in June 2008 was in the negative. Lord Hoffmann, at [2], said:

"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it a value of one is returned and the fact is treated as having happened."

For the above reason I would allow the appeal and set aside the order for possession.

Lord Justice Sedley:

23. While I acknowledge the force of some of the strictures placed by Neuberger LJ in Knowsley Housing Trust v McMullen, and my obiter remark in Gallagher v Castle Vale Action Trust Ltd [2001] EWCA Civ 944 about the reasonableness of making possession orders on grounds which the tenant is unable to do anything about, it remains the case that great care must be exercised by the county court in deciding possession claims under the Housing Act in at least two respects which have been highlighted by this appeal. First, as Wilson LJ has explained and as Miss Beecham readily and properly accepts, it is not permissible to use a suspended or postponed possession order as a means of bringing pressure to bear on a third party to modify behaviour over which the tenant himself or herself has no influence or control. This, however, is, on analysis, not something that HHJ Knowles did, as Wilson LJ has explained, though for my part I think it would have been better if she had made no reference to it at all.
24. Secondly, as Article 8 of the Convention on Human Rights should remind judges, the person or the situation and circumstances of the tenant are always a potentially relevant consideration, as this court stressed in Gallagher in what I agree is more accurately described as an exercise in judgment than an exercise in discretion. In the present case, no overt attention is given by the judge, in particular in deciding whether the possession order is reasonable and proportionate at all. To the fact that the defendant's flat is also home to three children and a grandchild for whom she is responsible, I am not prepared to accept Miss Beecham's submission that on the present facts this admittedly relevant element could have made no difference to the outcome, nor am I able with any ease to find it reflected in the judgment as a whole. But since I agree with my Lord, Wilson LJ that the possession order cannot stand because of the judge's handling of an important element of the evidence, it is not necessary for me to do more than express my doubt about the judgment on this score. For example, it seems to me quite possible that the judge might have decided to exercise the tailor-made power in Section 85(1) of the Housing Act to adjourn the proceedings in order to see if there was any further breach. I too therefore would allow this appeal.

Lord Justice Mummery:

25. I agree. I would just add as a tidying up comment that there was, made at the outset of the appeal, an application by Miss Beecham on behalf of the local authority for an extension of time for serving a respondent's notice and for permission to adduce fresh evidence on the appeal. We heard argument on that, but in the end it was not proceeded with and therefore it is not necessary for us to make any order in relation to it. I treat the applications as withdrawn, to allow the appeal and set aside the possession order.

Order: Appeal allowed