STRENGTHENING EXISTING POSSESSION PROCEEDINGS: INTRODUCING ANTI-SOCIAL BEHAVIOUR

A guest blog kindly provided by MSB Solicitors

For registered providers of social housing, issues with anti-social behaviour can significantly impact the quality of life for residents and the wider community. It’s important that we have all of the tools at our disposal to manage anti-social behaviour swiftly and effectively.

In this article, we will explore the well-established principles in Sheffield City Council v Hopkins (2001) EWCA Civ 1023 and Manchester CC v Finn [2002] EWCA Civ 1998 and how they can be applied to introduce new grounds of possession into existing possession proceedings or to seek to vary possession orders to address anti-social behaviour.

The Process

Imagine a typical rent arrears case against an assured tenant. At the first possession hearing, a possession order is made by the Court and suspended in accordance with Section 9(2)(a) and (3) to the Housing Act 1988 on payment of rent and an amount towards the arrears.

Unfortunately, around 6 months after the suspended possession order is made by the Court, the Tenant begins to engage in serious and sustained anti-social behaviour towards their neighbours.

Scenario 1 – The Tenant Complies with the Order for Payment

In this scenario, there has not been a breach of the possession order itself and so we could not apply for a warrant of possession. However, as per Manchester CC v Finn [2002] EWCA Civ 1998 the Court provided for the ability to apply to the Court to vary the existing suspended possession order with additional grounds for possession to be included.

In these circumstances, we may therefore decide to apply to the Court to consider varying the suspended possession order to an outright order. The Court will retain its full discretion to adjourn or suspend possession in accordance with Section 9(2)(a) to the Housing Act 1988.

Scenario 2 – The Tenant Breaches the Order for Payment

In this scenario, we may decide to apply to the Court to enforce the possession order by applying for permission for a warrant of possession. If the Tenant was to make an Application to suspend the enforcement of the warrant once granted, then as per Sheffield City Council v Hopkins (2001) EWCA Civ 1023 the Court provided that additional grounds for possession can be considered by the Court.

Again, the Court will retain its full discretion to adjourn or suspend possession in accordance with Section 9(2)(a) to the Housing Act 1988 and would consider the additional evidence before considering the Tenant’s Application to suspend enforcement.

In both scenarios, the Court emphasised that sufficient “Notice” being given to the Tenant was a critical factor in allowing the additional Grounds for possession to be considered.

What about introducing Mandatory Grounds?

In the unreported case of Poplar HARCA v Kerr. Clerkenwell & Shoreditch County Court in February 2022, the Court considered whether grounds of possession excluded within a tenancy agreement could be later introduced as grounds of possession.

A suspended possession order was made in 2017 on Grounds 10 and 11. In February 2021, Poplar served a notice seeking possession, seeking to rely on Grounds 7A, 10, 11 and 14 and brought an application to vary the suspended possession order to an outright order. Kerr defended on the basis that Poplar had agreed in the tenancy that it would not use mandatory grounds.

The Court cited North British Housing v Sheridan [1999] 2 EGLR 138 and held that it was a necessary implication of an assured tenancy agreement, governed as it was by statute, that amended, new or substituted grounds could be relied upon. The agreement included one mandatory ground, so it could not be taken as a blanket exclusion of mandatory grounds.

A further argument was raised that Section 9 Housing Act 1988 could not be used to vary the possession order in this case because Section 9(6) excluded mandatory grounds was unsuccessful. The Court was of the view that exclusion was for the original ground of possession relied upon and that Section 9 did not prevent further grounds being relied upon for a variation of the order.

Although a County Court judgment and not binding in nature, the potential to use mandatory grounds in Hopkins & Finn style variations of orders may avoid the need to consider the issue of new proceedings.

Can Additional Defences be raised?

When introducing anti-social grounds into existing possession proceedings or seeking to vary an outstanding order there is of course a danger of further defences being raised within the proceedings.

In the unreported case ofMidland Heart Limited v Margaret Burns and CA (a protected party by his litigation friend, the Official Solicitor), County Court At Birmingham, 3 May 2019, His Honour Judge Murdoch was of the view that the Sheffield v Hopkins approach may not be appropriate where an Equality Act 2010 defence was raised due to the effect of reversing the burden of proof from the Defendant to the Claimant.

What should RPs consider before making such Applications?

As with any claim for possession, when introducing anti-social grounds into existing possession proceedings or seeking to vary an outstanding order RPs must demonstrate a systematic and fair approach, ensuring that allegations of anti-social behaviour are well-founded and supported by appropriate evidence.

Any decision to introduce anti-social behaviour into existing proceedings must be proportionate. Just because there are existing proceedings, it does not negate the need for to consider alternatives to seeking possession on the issues raised including collaborative approaches, engaging with relevant agencies, community groups, providing access to support services can all help to tackle the root causes of such behaviour.

By presenting a well-documented case then chances can be increased of successfully addressing the behaviour in Court.

Conclusions

These well held principles offer an opportunity to address ongoing anti-social behaviour that may have emerged after the initial possession order was grantedThe Court can reassess the situation and determine appropriate measures to protect the community.

When seeking to vary existing possession orders, RPs must present compelling evidence that justifies the need for incorporating anti-social grounds. Strong cases are underpinned by good housing management, maintaining appropriate policies and procedures, comprehensive records including incident reports, witness statements, and any relevant correspondence.

If you have any questions about this blog and/or case queries, please contact Andy Moore, Head of ASB at MSB andymoore@msbsolicitors.co.uk

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