Another important judgment has been handed down in the field of Housing Law, being last Thursday’s (7 July 2016) Court of Appeal decision in City West Housing Trust v Massey; Manchester & District HA v Roberts  EWCA Civ 704.
This is a case that gives guidance as to the correct approach to be taken to the question of suspension of a possession order where the tenant is an assured or secure tenant and the case is one concerned with discretionary grounds other than based on rent arrears.
These two appeals concerned tenants who had allowed their premises to be used for the cultivation of cannabis. In the Massey case it was the tenant’s partner who was culpable. In the Roberts case it was a criminal gang who were using a room in the property and doing so through the use of threats and intimidation. In both cases the tenants said that they knew nothing of the drugs and in both cases the tenants were found to be lying. Nonetheless, the District Judge’s hearing the cases made suspended possession orders. Both landlords appealed to the Circuit Judge, with one succeeding and the other failing. There were then second appeals to the Court of Appeal with the cases being conjoined to produce this judgment.
The Court of Appeal upheld the original decisions of the District Judges, dismissing the appeal in the City West case and allowing the tenant’s appeal in the Manchester case. The Court of Appeal re-affirmed old ground stressing that a District Judge is making a discretionary decision that “is subject to appellate review only if the judge has applied the wrong legal principle, reached a conclusion that no reasonable tribunal, properly informed as to the law and facts, could have reached, had regard to facts that were irrelevant or failed to have regard to factors which were relevant.” (Paragraph 8). The court concluded that the decisions of the District Judges in these cases “were not capable of being upset by an appellate court.” (Paragraph 71).
More important than the facts is the guidance for the future that comes from this decision.
In both Sandwell MBC v Hensley  HLR 22 and Birmingham CC v Ashton  EWCA Civ 1557 it has been made clear that when considering suspension the burden is on the tenant to show by cogent evidence that there is a sound basis for the hope that the previous conduct will cease. In this case the Court of Appeal therefore considered what was meant by the word “cogent”, and stated the following:
(i) “To be “cogent”, the evidence must be more than simply credible: it must be persuasive. There has to be evidence which persuades the court that there is a sound basis for the hope that the previous conduct will cease or not recur.” (Paragraph 47).
(ii) “the standard is pitched at a realistic level. On the one hand, the tenant does not have to give a cast-iron guarantee. On the other hand, a social landlord does not have to accept a tenant who sets out to breach the terms of his tenancy and disables the landlord from providing accommodation in more deserving cases.” (Paragraph 48).
(iii) “There is no principle that the cogent evidence regarding future compliance must stem solely from the tenant himself, without any regard to how others might behave.” (Paragraph 49).
- Resources of the Landlord
When imposing conditions in an SPO, the court should “be careful not to expect a social landlord to do more than is reasonable, having regard to all the circumstances.” However, “social landlords may be expected in some circumstances to be ready to take an active role, as an ordinary incident of checking on their housing stock” (Paragraph 50).
- Dishonest Tenants
Dishonesty in a tenant’s evidence is not an absolute bar to the making an SPO. Lying may result in the judge finding that the tenants evidence cannot be trusted on any matter, but each case must be considered on its own facts. “Even though lies have been told, it may be appropriate for a district judge nonetheless to make the assessment that cogent evidence exists which provides a real hope that the terms of the tenancy agreement will be respected in future.” (Paragraph 53).
- A 2 Stage Test
“An application for a suspension involves not just the exercise of discretion but also the making of findings of fact on the basis of which the discretion is to be exercised.” (Paragraph 54).
The ultimate assessment is a multi-factorial one taking account of all factors and adopting a broad common sense approach to the circumstances of the case.
This guidance is bound to be of considerable importance in the day-to-day anti social behaviour possession cases that come before the courts. However, it is equally important to remember that this is exactly what it says – guidance, and every case must be assessed on its own facts.