England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Birmingham County Court
His Honour Judge Owen QC
1BM70325

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/11/2012

Lord Justice Treacy:

1. This appeal is brought by the Appellant local authority which seeks to challenge the decision of His Honour Judge Owen QC sitting at the Birmingham County Court made on 20^th December 2011. The claim was for possession of a dwelling house (a ground floor flat) at 56 Edgewood Road, Rednal, Birmingham. The judge granted a possession order but suspended possession on terms that the Respondent (1) complied with his tenancy agreement and (2) obeyed the Injunction Order made on that date. The appeal is as to the correctness of the decision to suspend the possession order.
2. The premises were let on a secure tenancy to the Respondent on 1^st December 1997. The tenancy is subject to the Appellant's standard terms and conditions. They imposed obligations on the Respondent not to do anything "which causes or is likely to cause a nuisance to anyone in the local area"; not to do anything "which interferes with the peace, comfort or convenience of other people living in the local area"; not to "harass or threaten to harass, or use violence towards anyone in the local area".
3. The Respondent is in his early fifties. Until 11^th October 2010 he was the sole occupier of the premises. On that date he was sentenced in the Crown Court in Birmingham for offences of affray and possession of an offensive weapon relating to an incident which took place at the premises on 12^th June 2010. He was made the subject of a Community Order which included a condition preventing him from returning to the property for a period of three years. He was also put under supervision for three years and required to live at approved addresses and to undergo mental health treatment.
4. In January 2011 a notice seeking possession was served relying upon grounds (1) and (2) of Schedule 2 to the Housing Act 1985. On 31^st January 2011 the Claim Form was issued. The Particulars of Claim specified, in addition to the incident of 12^th June 2010, three earlier incidents of anti-social behaviour resulting in convictions for offences committed by the Respondent on three occasions between 2004 and 2007.
5. In addition to that the Appellant specified a number of additional complaints about the general behaviour of the Respondent at the premises which were alleged to have caused nuisance and annoyance to his neighbour, Miss Amy Benton, who lived at 54 Edgewood Road with her three young children.
6. When the matter came to trial, those non-conviction matters were in dispute. The Appellant elected not to litigate those but to proceed on the basis of the four incidents which had led to convictions and which were not in dispute. Those four incidents are as follows: (1) 21^st January 2004 the Respondent was convicted of possession of an offensive weapon. (2) 7^th May 2007 the Respondent brandished a baseball bat in an aggressive manner in front of the premises and was convicted of affray. (3) On 11^th May 2007, having been asked to turn his music down, the Respondent threatened the neighbour with a 12 inch kitchen knife and was subsequently convicted of affray. (4) On 12^th June 2010, as Miss Benton returned to her flat, she could hear much shouting and banging coming from the premises. A little later she saw the Respondent outside. He was abusive and threatening towards her, and said that he "ruled the fucking block, you are out of here". He then smashed a concrete ornament and further abused Miss Benton. Miss Benton was put in fear and phoned male relatives. When they arrived she opened her door to them, accompanied by her three children. The Respondent came out of his premises waving a samurai sword, approximately 2 feet in length, above his head, and struck it against the brick wall while shouting "I can have you all".
7. This must have been a thoroughly shocking and distressing event for Miss Benton and her children. For a period after this event, the Respondent was sectioned under the Mental Health Act 1983 and detained in hospital.
8. Evidence at trial on behalf of the Appellant was given by Natalie Potter, who was the manager of the housing officer involved in this case. Ms Potter had some personal knowledge of the case as well as a supervisory role.
9. The evidence for the Appellant, which does not appear to have been in issue at the trial, included the following:

"This incident has left both Miss Benton and her children feeling very upset and frightened to the extent that, prior to the bail conditions being imposed, they were too scared to return home and instead stayed with their grandmother. Miss Benton and her children are still very frightened in their property and are extremely concerned that they may encounter Mr Ashton whilst going about their daily lives. This fear has resulted in Miss Benton and her children on occasion staying with other family members."

10. Those matters were incorporated into a witness statement made by the housing officer involved and which was adopted by Ms Potter who gave evidence in the absence of the housing officer through illness. The statement was made on 24^th January 2011, about ten months before the date of trial.
11. The Respondent gave evidence, and the judge had before him two reports from Dr Van Woerkom, a Consultant Psychiatrist. There was no evidence before the judge in relation to the current effects of the Respondent's conduct on his neighbours and in particular on Miss Benton and her young family.
12. The judge found that a notice seeking possession had been served (Section 83 Housing Act 1985). He found in the absence of argument to the contrary that a ground for the making of a possession order set out in Schedule 2 to the Act had been established. Although there was no formal concession made on behalf of the Respondent, there had been no argument that it would not be reasonable to make a possession order under Section 84(2)(a) of the Act. The judge concluded it was reasonable to make a possession order in the circumstances.
13. The real issue before the court was whether the court should exercise its powers under Section 85(2) of the Act to suspend or postpone the operation of the possession order. The judge's conclusion was that he should suspend the possession order on terms already indicated. Thus, the sole matter of issue on this appeal is whether or not the judge was right to suspend the order.
14. In his judgment, the judge made findings that the Respondent appeared genuine in saying that he no longer had negative or adverse feelings towards Miss Benton and her family. The judge accepted that whilst the Respondent had been living with his own family since exclusion from the premises, he had had the benefit of support from his family, the Birmingham Floating Alcohol Team, his supervising probation officer, a community psychiatric nurse (on a four weekly basis), and a psychiatrist (on a six weekly basis). Most of this evidence had come from the Respondent himself and was not supported by evidence from those sources. Nonetheless the judge decided to accept it.
15. The Respondent also gave evidence that he had a long history of problems with alcohol and cannabis use which from time to time rendered him unstable. He acknowledged that he was an alcoholic and that there was a history of recurrent lapses. However, he said that since leaving hospital in October 2010 he had abstained from alcohol or cannabis usage.
16. The judge was apparently somewhat concerned about the absence of supportive evidence, but neither party wished the court to adjourn for the purpose of obtaining such evidence.
17. At paragraph 26 of the judgment, the judge said:

"On balance and not without some hesitation (given the absence of direct supporting testimony from the relevant professionals and their contemporaneous records), I accept the Defendant's evidence concerning his condition since his arrest, his cooperation with the medical and other professionals, his insight and his expression of remorse."

18. The two medical reports from Dr Van Woerkom stated that the Respondent was adhering to his medication. He had been diagnosed with a bipolar condition which was described as being "quite stable".
19. The doctor's evidence was to the effect that alcohol and cannabis usage were significant destabilising factors, although the prognosis for the Defendant's condition appeared to be "reasonably favourable" if his condition remained stable. A little later in his report, Dr Van Woerkom said the prognosis was "fairly good". The Respondent's stability would be maintained if he refrained from alcohol or cannabis usage and if he continued to take his medication.
20. Dr Van Woerkom considered that the risk of further incidents were the Respondent to return to the premises was "low", by which he meant a 20 to 30% risk over the next five years. However, in his addendum report, Dr Van Woerkom pointed out that it would seem very likely that in the event of the Respondent reverting to alcohol or cannabis usage, he would become unstable "quite quickly".
21. The judge commented that, since there was no more up to date evidence concerning Miss Benton and her children than the January 2011 statement, there was no evidence before the court as to any long term irremediable effects upon Miss Benton or her family or any other neighbour. Nor was there evidence of any continuing animosity, either on the part of the Respondent or Miss Benton.
22. At paragraph 24 of his judgment, having concluded that on the facts it would be reasonable to make a possession order, the judge continued:

"In my judgment Mr Singleton was right, without formally conceding the matter, to identify the principal question as to whether any such order might properly be suspended. If there was no cause to believe or reason to suppose that the behaviour in question would not be repeated, then of course suspension would serve no useful purpose. [The sentence reads more easily if the double negative is eliminated]. If the evidence was such as to show that there was an unacceptable and real risk of this kind of event recurring, not necessarily in precisely the same way, there might be no proper basis upon which to suspend that order."

23. Then at paragraph 27 the judge said:

"The Claimant's position is that nonetheless, notwithstanding all of these matters, the incident was so serious that it would justify the making of an outright order. At first that submission has an attraction and I have sympathy with it, not least given the absence of the medical records, for example. It is to be recalled that the precipitating incident involved the brandishing of a Samurai sword in a residential area. The question however which arises is whether that approach could properly be regarded as a proportionate response given the evidence presented to the court by the parties. In my judgment it is not given my finding in respect of the Defendant's evidence to which I have referred."

24. He continued at paragraph 28:

"That which might well render it proportionate would, for example, be the additional risk factor of, say, good reason to suppose that the kind of relapse in the Defendant's condition would soon occur, resulting in that kind of behaviour, or perhaps, clear evidence of there being a continuing animosity between the Defendant and Miss Benton, or, perhaps, clear evidence that there is a long-lasting continuing fear on the part of Miss Benton and/or the children which would render it unreasonable to expect the Defendant to return to that locality or that the evidence concerning abstinence, fourteen months stability and support is inaccurate."

25. The judge concluded at paragraph 30:

"On the evidence presently before me I am satisfied, just, that the proportionate and proper response to the risks posed by the Defendant and his conduct in the past is such that it would be appropriate to suspend the possession order which I otherwise make."

26. I next refer to relevant Sections of the Housing Act 1985, namely Section 85 and Section 85A.

"85. – Extended discretion of court in certain proceedings for possession.

(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 (grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.

(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the 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.

(3) On such an adjournment, stay, suspension or postponement the court-

(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent […] unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and

(b) may impose such other conditions as it thinks fit.

(4) If the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.

85A Proceedings for possession: anti social behaviour

(1) This section applies if the court is considering under section 84(2)(a) whether it is reasonable to make an order for possession on ground 2 set out in Part 1 of Schedule 2 (conduct of tenant or other person).

(2) The court must consider, in particular-

(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons;

(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated."

27. The Appellant submits that the judge did not give sufficient consideration to the matters set out in Section 85A(2). The three matters set out at Section 85A(2) are matters which the court must consider "in particular". They represent the past, the present and the future, and in that context the judge must make an assessment of the effect of the tenant's conduct.
28. As to the past, at sub-section 2(a) the judge failed to give sufficient weight to the cumulative effect of four incidents resulting in criminal convictions. As to the present, the judge had not given proper consideration as to the continuing effect of the Respondent's conduct on Miss Benton and other neighbours, nor was any or any proper weight attached to a consideration of the effect of such behaviour if past misconduct were repeated.
29. It was submitted that there was a burden on the tenant to reassure the court so that it would feel able to exercise its discretion to suspend the possession order. In this instance the judge had wrongly relied on the absence of evidence, and in doing so, had approached the matter from the wrong perspective.
30. In support of this reference was made to Manchester CC v Higgins [2005] EWCA Civ 1423: [2006] HLR 14. Mr Manning drew attention to the observations of Ward LJ at paragraphs 30 to 38, and in particular those at paragraph 37 to the effect that where the court has already found that it is reasonable to make a possession order, the question of whether or not to suspend its execution must be very much a question of the future. Accordingly, there must always be a sound basis for the hope that the anti-social behaviour will cease.
31. In addition, Mr Manning drew attention to Sandwell MBC v Hensley [2007] EWCA Civ 1425: [2008] HLR 22, where Gage LJ commented at paragraph 17:

"What in my judgment can be said is that the effect of Mousah is to stress the serious nature of a breach of a condition which involves the committing of a criminal offence. The more serious the offence, the more serious the breach. Convictions of several offences will obviously be even more serious. In such circumstances it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates… a sound basis for the hope that the previous conduct will cease."

32. Mr Manning submitted that the judge had failed properly to assess the effect of the Respondent's conduct upon others either in terms of its past impact, or in terms of the continuing impact, or in relation to the effect of any repetition. The judge had fallen into the error of focussing too much on the Respondent's current condition without looking at the situation from the point of view of those affected or properly looking into the prospects for the future.
33. The Respondent relied heavily on the requirement for this court to show appropriate deference to the judge's findings. Their submissions can best be encapsulated by reference to an authority Mr Singleton relied on, Leeds and Yorkshire Housing Association v Vertigan [2010] EWCA Civ 1583: [2011] HLR 13. Heavy reliance was placed on the observations of Norris J at paragraph 18:

"Fourthly, the making of a suspended order inevitably involves an assessment as to the future conduct of the tenant. That assessment is grounded on past behaviour, the circumstances in which the offer of compliance is put forward, and the reliance that can be placed on the word of the promisor. That is pre-eminently the province of the trial judge, who draws on a depth of experience of cases of this sort; an intimate knowledge of the facts of this particular case and all their nuances, not all of which translate readily into the written word; and the inestimable advantage of having seen Mr Vertigan over a two day trial. The judge plainly drew on all of that material and gives an account of it in her careful judgment. Her conclusion upon that material cannot be thought to fall outside the proper range of decisions; in fact, I think it was plainly right."

34. Accordingly, Mr Singleton argued that this court should be very slow to substitute a different order in the exercise of its own judgment. He argued that the judge had addressed the difficulties, in what was not a straight forward case, "head on" in paragraphs 27 and 28 of the judgment. Moreover, he disputed the Appellant's submission that under Section 85A the court was obliged to consider "in particular" the three factors identified at Section 85A(2). A reading of the section showed that it applied when the court was considering whether it was reasonable to make an order for possession.
35. He drew attention to the fact that under Section 85(2) the court was making a rather broader judgment. Once an order for possession was made, the court might stay or suspend the execution of the order for such period or periods as it thought fit. However, it seems to me that this distinction, although properly made, loses virtually all of its force in the light of Mr Singleton's realistic concession that although the court might not be mandated to take account of the factors at Section 85A(2) in considering whether to suspend an order for possession, they were clearly highly relevant factors to the exercise of the judgment to be made in relation to the power to suspend under Section 85(2). It seems to me therefore that this somewhat technical point does not materially advance the Respondent's case.
36. Our attention was drawn to Sheffield CC v Shaw [2007] EWCA Civ 42; [2007] HLR 25. In that case the judge had come to the conclusion that the chance that Mr Shaw might reform was genuine and "better than fanciful", so he had suspended the possession order. The Court of Appeal held that the judge's discretionary decision in that case had not been shown to be plainly wrong and so dismissed the appeal.
37. Mr Singleton, therefore, submitted that a rather lower standard was required of a person seeking to obtain suspension of a possession order than the Appellant had contended for. I say at once that I do not regard Shaw as laying down any test. The language used was merely describing what the judge had said.
38. In my judgment, this was a difficult decision for the judge. There were plainly a number of factors telling in favour of the Respondent. He had clearly made efforts to get a grip on his life in the fourteen months or so prior to trial. He was compliant in taking his medication, he was accessing support services, and his condition was currently stable.
39. However, to my mind there was still a significant risk of future harmful events occurring and I regard the judge's analysis of the situation as flawed. Dr Van Woerkom's assessment of a 20 to 30% risk cannot be said to be "low" in objective terms. That figure itself was predicated on continuing abstinence on the part of the Respondent from alcohol and cannabis, leading to a prognosis described by Dr Van Woerkom as one which was "fairly good". There was undoubtedly a past history of lapses from sobriety on the part of the Respondent which does not appear to have been given any weight by the judge, and it was clear that if the Respondent relapsed into abuse of drink or drugs, further highly unpleasant incidents of the sort which had occurred in the past were "very likely to recur".
40. There was no evidence from Dr Van Woerkom that the Respondent had been cured or successfully treated for his problems. There was no assessment from Dr Van Woerkom of the likelihood of the Respondent remaining abstinent, and it had to be borne in mind that his current stable state existed during the period when he had returned to the family home rather than in the situation to be considered if he returned to live on his own in the flat at which the incidents had occurred.
41. The judge does not appear to have made any assessment of this sort for himself. It seems to me that there existed at the time of the hearing a significant risk for the future which had not been properly addressed, and that the judge had over-concentrated on the Respondent's present condition. He did not adequately address the fact that, if there were repetition, it would represent a fifth incident for the Respondent's neighbours who had already suffered four in six years.
42. Moreover, I consider that the tests that the judge effectively posed to himself in paragraphs 24 and 28 of his judgment approach the matter from the wrong direction. The onus should be on the party who seeks to have the benefit of suspension of a possession order, (which by definition the judge has already found it was reasonable in the circumstances to make), to provide cogent evidence to show that what can generally be characterised as anti-social behaviour will not recur, or will be unlikely to do so.
43. Whilst I recognise that every allowance should be made for the fact that Judge Owen QC was the judge on the spot with the witnesses before him, and whilst it is clear that he took much care in considering the problem before him, I do not think his decision can be sustained. I say that recognising that the Appellant has a high hurdle to surmount. But this court should intervene if the judge went wrong in his approach and thus failed to exercise his judgment as to whether to suspend correctly. For these reasons I would hold that the judge's decision was flawed and I would allow this appeal.
44. In so holding, I do not deal with a further point raised by the Appellant which was that the period of suspension imposed by the judge, taken together with the exclusion period imposed by the Crown Court as part of the sentencing process had the practical effect of leaving no more than a two month period during which the Respondent, having re-entered the premises, would be subject to the terms of the suspension of the possession order. The point was taken that this period was so short as to render the period of trial represented by the suspension of the order virtually meaningless. The Respondent's counter-argument was that the judge was aware that the term of the Crown Court exclusion order was variable on application and the Respondent had indicated an intention to apply.
45. We were told that a little while after the judge's order, such an application had been successful and that the Respondent had in fact gone back into occupation of the premises. As stated, however, I do not consider we need to resolve that particular issue in the light of my other conclusions.
46. This is not a case where it would be appropriate for this court to decide upon the appropriate course to be taken. Time has passed, the information before the trial judge will be out of date, and there needs to be a reconsideration of the matter on a contemporaneous basis. I would remit the matter to the County Court to be tried by a fresh judge. The only issue that he or she will need to consider will be the question of suspension, there being no appeal against the making of the possession order.

Lord Justice Mummery:

47. I agree.

Lord Justice Patten:

48. I also agree.