England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT WOOLWICH
(DISTRICT JUDGE BEATTIE)

		Royal Courts of Justice Strand London, WC2A 2LL
		25 November 2014

LORD JUSTICE VOS:

1. The Defendant, Ms Charlotte Tuitt, appeals against the order for possession made against her in respect of her secure tenancy of a three bedroom first floor flat at 61 Kingsdale Road, Plumstead, SE18 2DE (the property) on the grounds that her son, who is now 18 years old and lives with her and her partner at the property, has committed repeated acts of nuisance and annoyance to neighbouring residents and has been convicted of an indictable offence committed in the locality. The property is close to but not actually a part of the Gilbourne estate in Plumstead.

Chronological background

2. Anton Tuitt was born on 28 July 1995. A few months later on 5 September 1995, the Defendant entered in a secure weekly tenancy agreement with the Royal Borough of Greenwich (RBG). Clause 2.1 of the tenancy agreement provided that the Defendant was responsible for ensuring the good behaviour on any part of the estate or neighbourhood of all members of her household, including children. Good behaviour was defined to mean behaviour that respects rights of others to peaceable enjoyment of their home and neighbourhood and does not cause nuisance, annoyance or distress to other people. Other clauses in the tenancy agreement inhibited violence against council employees, noise causing annoyance and other nuisances.
3. On 19 February 2010, Anton Tuitt signed an acceptable behaviour agreement (the ABA) when he was 14 years old, countersigned by the Defendant, in which he agreed not to engage in various specified acts of anti-social behaviour or to threaten or abuse others. On 26 August 2010, the ABA was terminated due to Anton Tuitt's breaches of the ABA and his having continued to act in an anti-social manner.
4. In the early part of 2012, there were nine incidents which formed the subject of the allegations made against the Defendant in these proceedings. On 16 July 2012, Anton Tuitt and/or others threw certain planks of wood from a fourth floor window, hitting and severely injuring the RBG's caretaker, a Mr Tom Jones. This was an indictable offence for which Anton Tuitt was later convicted.
5. On 15 August 2012, RBG served on the Defendant a notice seeking possession under grounds 1 and 2 of schedule 2 to the Housing Act 1985. On 24 August 2012, RBG issued its claim form against the Defendant. On 20 November 2012, the Defendant served a defence in which she put RBG to proof of all the alleged incidents of anti-social behaviour.
6. On 12 February 2013, Anton Tuitt damaged the door to a Ms Simone Smith's house at 55 Kingsdale Road. In March 2013, Anton Tuitt was convicted of criminal damage to that neighbour's door and given a conditional discharge. On 3 May 2013, Anton Tuitt was arrested for possession of cannabis.
7. On 17 September 2013, Anton Tuitt pleaded guilty to the charge of reckless assault on Mr Tom Jones occasioning actual bodily harm, for which he was sentenced to a 12 month community order with 100 hours unpaid work and £250 payable in compensation.
8. On 27 November 2013, the matter came for trial before District Judge Beattie, who made an order for possession of the property against the Defendant and refused to suspend the order. On 12 March 2014, Aikens LJ looked at the matter on paper and gave permission to appeal on the ground that the three grounds of appeal, to which I shall shortly refer, were arguable.

The Housing Act 1985

9. Section 84 of the 1985 Act provides that:

"(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 I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order."

Section 85A of the 1985 Act provides under the heading "Proceedings for possession: anti-social behaviour" as follows:

"(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."

Ground 1 of part 1 of schedule 2 provides a ground of a possession to the effect that:

"Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed."

Ground 2 of part 1 of schedule 2 to the 1985 Act provides a ground for possession where:

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

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

(b) has been convicted of...

(ii)an indictable offence committed in, or in the locality of, the dwelling-house."

District Judge Beattie's decision

10. District Judge Beattie's decision dealt first with the evidence, then with the specific allegations made and then with the following three questions: (1) whether the grounds for possession were made out, (2) whether it was reasonable to make an order for possession, taking into account the factors included in section 85A of the 1985 Act, and (3) whether any possession order should be suspended.
11. The judge decided that the grounds were made out, that it was reasonable to make a possession order and that that order should not be suspended. In outline, DJ Beattie's reasoning can be summarised as follows:

(1) The judge accepted the evidence of RBG's witnesses as to Anton Tuitt's anti-social behaviour. In particular, she accepted the account of Mr Tom Jones as to Anton Tuitt's part in the events of 16 July 2012 in which he suffered serious head injuries as a result of the wooden planks being thrown out of a fourth floor window. She also accepted evidence of Michelle Leak as to Anton Tuitt having broken his bail conditions by coming onto the Gilbourne estate on at least four occasions, once when he was sent there by the Defendant.

(2) The judge found the Defendant's evidence troubling in that although she was partly conceding that Anton Tuitt was culpable and that she knew about it, she did not accept that he had actually been guilty of the very serious incident involving Mr Jones, saying only that he had been told to plead guilty and had to do so in order to avoid a prison sentence.

(3) The judge found that Anton Tuitt had admitted some things, including swearing loudly, smoking cannabis on the estate and playing football causing windows to be hit, but found his evidence troubling in that he became extremely angry in court when matters were put to him that he was not prepared to admit. He was "clearly speaking in a way which indicated that he was not entirely in control of what he was saying". She found that:

"When he is challenged outside of court and he does not like what is being said to him, that he has difficulty controlling his temper."

She found that he had indeed lost his temper when he criminally damaged Ms Smith's door when he was on bail for another serious allegation.

(4) In addition, the judge found each of the nine specific allegations advanced by RBG to have been admitted or made out, including the incident in which Mr Tom Jones was injured, incidents of loud public swearing, causing damage by kicking footballs, attempting a forcible entry to a property on the estate and loud drunken behaviour on the estate.

(5) Accordingly, the judge found that each of grounds 1 and 2 under the 1985 Act were made out, namely breaches of the Defendant's tenancy agreement and that Anton Tuitt, as a person residing at the property, had been guilty of conduct causing or likely to cause a nuisance or annoyance to persons residing, visiting or otherwise engaged in lawful activity in the locality and that Anton Tuitt had been convicted of an indictable offence committed in or in the locality of the property.

(6) As to the reasonableness of the possession order, the judge relied upon the following matters in particular:

(A) Anton Tuitt's behaviour had had a profound effect on Mr Tom Jones.

(B) the serious conduct after the offence against Mr Jones, including breaking bail conditions and the completely disproportionate attack on Miss Smith's door.

(C) the repeated incidents of loud swearing, showing no regard for the peace and quiet and feeling of security of other people on the estate.

(D) the allegations made out were likely to have had the effect of making other residents feel very insecure and not to feel safe.

(E) both the Defendant and Anton Tuitt underestimated the effect he had on other people.

(F) the difficulty that when the Defendant and Anton Tuitt fall out with people, their conduct is extreme.

(G) the fact that Anton Tuitt did not desist from his behaviour even when he was on bail.

(H) Anton Tuitt's apparent inability to control his temper.

(I) the risk that Anton Tuitt's misbehaviour would continue.

(J) the fact that Anton Tuitt does not seem to consider his misbehaviour very serious.

(7) In relation to the possible suspension of the order, the judge found that an immediate order for possession would cause extreme hardship to the Defendant and considered whether she might impose conditions that would enable the order to be suspended. She considered the attempts that the Defendant and her partner had made to deal with Anton Tuitt's behaviour, but found them to have been markedly unsuccessful.

(8) The Defendant had not considered requiring Anton Tuitt to leave the property if he did not behave, at least in advance of the hearing. The judge took into account the fact that the Defendant had suggested that Anton Tuitt was not at fault in relation to the serious assault on Mr Jones. She found that troubling.

(9) The judge found that the Defendant had failed to take a firm enough line with him despite plenty of warnings. She found that the Defendant would not be able to take effective steps to prevent the risk of a further serious incident taking place as a result of Anton Tuitt's apparent inability to control his temper.

(10)It was, she therefore found, proportionate to make an immediate order for possession.

The Defendant's grounds of appeal

12. The Defendant has maintained three grounds of appeal against the judge's decision as follows:

(1) The judge failed to apply the decision in Portsmouth City Council v Bryant [2000] 32 HLR 906 and therefore failed to take adequately into account the Defendant's lack of personal fault, save a failure better to control Anton Tuitt.

(2) The judge did not give adequate reasons for her finding that Anton Tuitt's anti-social conduct had continued, which was against the weight of the evidence. Accordingly, the judge failed to weigh up, when considering reasonableness and suspension of the order, the extent to which Anton Tuitt's conduct had improved since July 2012.

(3) the judge was wrong to find that the evidence of complaints against Anton Tuitt carried weight because there were "so many of them ... they are numerous over a number of years..."

Ground 1: the Defendant's culpability

13. This ground seems to be directed at both the finding of reasonableness and the refusal to suspend the order. The tests are, of course, different. Ms Anna Watterson, counsel for the Defendant, placed most reliance originally in her skeleton on a dictum of Lord Justice Sedley in Portsmouth v Bryant supra. That dictum needs, however, as Ms Watterson acknowledged in her oral argument, to be placed in context. In that case, Simon Brown LJ gave the leading judgment. He said the following at page 914, having reviewed the existing authorities:

"Those authorities clearly hold that no personal fault on the tenant's part is required to bring a case within ground 2, although this consideration will come into play when deciding whether or not to make a possession order and, if so, whether to suspend it."

Lord Justice Sedley, giving the second judgment, said this at page 917:

"I agree with my Lord that the true meaning of ground 2 in schedule 2 to the 1985 Housing Act (as amended) is its natural and ordinary meaning. A tenant may face possession proceedings not only if he or she has offended in one of the ways specified, but if someone who lives with or visits the tenant has done so. The rigours of this provision, which in its second limb may be independent of any fault on the tenant's part, is mitigated by the requirement of section 84(2) that no possession order may be made unless the court considers it reasonable to do so. It may very well be unreasonable to make even a suspended order against somebody who will be powerless to rectify the situation and it will almost certainly be unreasonable to make an outright order against such a person. There are, after all, other legal expedients, not least under the Prevention from Harassment Act 1997, by which those guilty of anti-social conduct can be directly punished or restrained."

14. It has, however, since been made clear by the Court of Appeal in Knowsley Housing Trust v McMullen [2006] HLR 43 that the contention that "an order for possession, whether outright or suspended, could or even should not have been made as a matter of principle simply because the tenant could not control the activities of the person in her household responsible for the nuisance" should be rejected: see Neuberger LJ, with whom Rix LJ and Auld LJ agreed, at paragraph 32. Earlier, Neuberger LJ had summarised the applicable principles from the decision of the Court of Appeal in Newcastle upon Tyne County Council v Morrison [2000] 32 HLR 891 as follows:

"(a)when considering reasonableness, the judge must take account of all relevant circumstances "in a broad common sense way".

(b) the interests of the neighbours and the obligation of the landlord to those neighbours are relevant in nuisance cases...

(c) the fact that nuisance has ceased does not ipso facto prevent even an outright order for possession being made.

(d) although the tenant's conduct is a relevant factor, the fact that she has done her best to control the person responsible for the nuisance does not prevent the making of [an order for possession]...

(f) an appellate court will only interfere with a decision on reasonableness where the judge has taken a irrelevant factor into account, ignored a relevant factor or reached a perverse conclusion."

Neuberger LJ then concluded at paragraph 33 of his judgment as follows:

"It seems to me that the fact that the tenant cannot control the nuisance maker is a factor which would normally assist the tenant in resisting an order for possession in relation to past breaches, especially where she has done her best to stop the nuisance. However, unless the nuisance maker has vacated or will shortly vacate the property, it seems to me to be a factor which may often assist the landlord if he is asking the court to make an outright order for possession or to suspend the order for possession on terms which relate to the behaviour of the nuisance maker."

I also note that Treacy LJ, with whom Mummery LJ and Patten LJ agreed, said in the case of Birmingham City Council v Ashton [2013] HLR 8 at paragraph 42 that:

"The onus should be on the party who seeks to have the benefit of suspension of a possession order... 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."

15. In my judgment, the question of reasonableness focuses, as section 85A requires, on the effect of the nuisance and annoyance on others, not on the direct responsibility for the nuisance and annoyance. The judge must, however, take account of all relevant circumstances in a broad, common-sense way. Such circumstances will, even in relation to reasonableness, include, in a general way, the responsibility of the tenant for the nuisance. One reason for that in this case is that ground 1 relates specifically to contractual breaches of the tenancy agreement.
16. In this case, however, the judge seems to me to have undertaken a fair and complete review of the relevant circumstances, including the responsibility of the Defendant for Anton Tuitt's undoubted misconduct. There is simply no substance in the Defendant's contention that a consideration of the lack of allegations of nuisance directed at the Defendant was omitted from the judgment.
17. The judge dealt expressly with each of the nine specified allegations and each was expressly directed at Anton Tuitt's conduct, not at the Defendant's conduct, but that did not mean that the judge ignored the Defendant's approach to the problem. The judge dealt with that in some, indeed I would say meticulous, detail. The judge found in relation to reasonableness that the Defendant had underestimated the effect Anton Tuitt had on other people. She found that his extreme conduct was the result of both the Defendant and Anton Tuitt falling out with people and that the Defendant had actually sent him into the Gilbourne estate in breach of his bail conditions.
18. The judge concluded that it was reasonable to make a possession order because Anton Tuitt was unable to control his temper and there was a risk, therefore, that his behaviour would continue. When the judge came to consider the possible suspension of the order for possession, she once again considered the Defendant's responsibility for Anton Tuitt's conduct, including that she had been markedly unsuccessful in her attempts to deal with his behaviour, that she did not properly accept his responsibility for the most serious conduct and that the Defendant's failure to take a firm enough line with Anton Tuitt, alongside his inability to control his temper, meant there was a risk of further harm. This was, in my judgment, the correct approach as Neuberger LJ had pointed out in paragraph 33 of the Newcastle upon Tyne case that I have set out above. The judge's approach to the Defendant's responsibility for her son's behaviour was appropriate both in relation to the question of reasonableness and in relation to the issue of the suspension of the order.

Ground 2: the evidence that Anton Tuitt's behaviour had improved

19. This ground also is directed at both the finding of reasonableness and at the judge's refusal to suspend the order for possession. Ms Watterson submitted that Anton Tuitt was only involved in two incidents of anti-social conduct in the 16-month period from July 2012 to the trial. She said that these incidents were of a different character from those contained in the nine allegations that judge found proved, leaving, of course, aside the serious incident itself.
20. It is said that the judge ignored the fact that Anton Tuitt had started an apprenticeship and had stopped hanging around with local youths, so that the judge's assessment of the likelihood of any repetition of anti-social behaviour was flawed. I regret to say that I could not disagree more with this submission. As I have already explained, the judge weighed up carefully the events that had occurred since the serious assault of July 2012. She concluded on the evidence that Anton Tuitt was still unable to control his temper and that the Defendant had not done enough to require him to do so. There was a risk of further repetition. The apprenticeship and the type of misbehaviour were fringe issues. The judge thought, based on the repeated breaches of bail conditions and the attack on Ms Simone Smith, that the risks were continuing. This was a view that the judge was entitled to take.
21. Had the Defendant said to the judge, for example, that she accepted that the situation was serious and that she would require Anton Tuitt to leave if there had been any repetition of his behaviour, the situation might have been different, but that was not the Defendant's approach, despite the somewhat pusillanimous contents of her witness statement. The Defendant was effectively in denial. That was something on which the judge rightly placed considerable reliance both in relation to reasonableness and in relation to the suspension of the possession order. In my judgment, this ground of appeal fails.

Ground 3: there was no evidential foundation for the finding that there were so many incidents over many years

22. This ground is also, in my judgment, without substance. The nine pleaded allegations against Anton Tuitt were made out on the evidence and are not appealed. Many of the allegations relate to multiple events concerning drug use, swearing and kicking footballs. That is to say nothing of the two criminal offences and multiple breaches of bail conditions. There is nothing, in my judgment, in the timing point as to the nine allegations.
23. To repeat, the judge carefully weighed up the question of whether things would improve and decided they might not. It was on that basis that she made what I consider to be the entirely appropriate order that she did.

Disposal

24. In my judgment, the judge correctly applied the law to the facts of this case and reached an entirely appropriate and sustainable conclusion. I would, therefore, dismiss this appeal.

LORD JUSTICE TREACY:

25. I entirely agree. In my judgment, this is an entirely clear case where the District Judge made the appropriate order for the reasons that Vos LJ has identified.

LORD JUSTICE McCOMBE:

26. I agree with both judgments.