This is a key question when someone faces losing their home. A Judge hearing a possession claim will often have to ask themselves, has the claimant proved that it is reasonable that possession of the home should be ordered? The overriding principle is that each case will turn on its own facts, but the below should help you see behind the curtain of the balancing exercise that Judge’s carry out on a daily basis.
Reasonableness does not come into play in all possession cases. I will focus on where a tenant is being taken to court by a claimant landlord who is relying on a ‘discretionary’ ground for possession. The various discretionary grounds can be found at Schedule 2 of the Housing Act 1985 (https://www.legislation.gov.uk/ukpga/1985/68/schedule/2) and Schedule 2 of the Housing Act 1988 (https://www.legislation.gov.uk/ukpga/1988/50/schedule/2) under the heading ‘grounds on which court may order possession’. The most common situation in my experience is where someone owes rent or where there have been allegations of anti-social behaviour.
When considering reasonableness in a possession case Judges will have at the back of their mind the comments of Lord Greene MR in Cumming v Danson [1942] 2 All ER 653 at 655: ‘it is, in my opinion, perfectly clear that the duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad commonsense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account.’
The discretion that a Judge has is ‘very wide’ when considering reasonableness (Bell London and Provincial Properties Ltd v Reuben [1946] 2 All ER 547, CA). It is as a result difficult to appeal against a Judge’s decision that it is reasonable to order possession. The Court of Appeal has said:‘making a possession order requires the lower court to apply an imprecise legal standard to the overall evaluation of all the circumstances relevant to that issue’. The Court of Appeal is generally not to interfere with an order of a lower court unless it is obviously wrong or the Judge failed to take into account a relevant consideration. (Bracknell Forest Borough Council v Harry Green & Denise Green [2009] EWCA Civ 238).
There do not seem to be many examples of a Judge making a decision that it is obviously wrong, but the Court of Appeal in Woodspring DC v Taylor (1982) 4 HLR 95 did find that no reasonable Judge could have made an outright possession order. In this case the defendants had been council tenants for 24 years, were in their 50s and had a good rent record. Mr Taylor had been made redundant and his wife had become ill. They owed £557 at the start of possession proceedings (which in 2023 would be equivalent to c. £1,900) and £700 at the date of the hearing (c. £2,400 in 2023 prices). At the hearing the Judge was made aware that they were now in receipt of benefits and paying the current rent plus £1 per week off the arrears (c. £3.41 in 2023 prices).
In the above case relevant considerations were: the length of the tenancy; their age; that they were paying the rent plus a contribution towards the arrears, the arrears had arisen through no fault of their own; there was a good rent history; and the tenant’ wife was in ill health.
In answering when is it reasonable to order possession, the best practical guidance is to focus on what the relevant considerations are. These can be bullet-pointed as follows (please note that this list is not exhaustive):
General
• The length of the tenancy;
• The age of the tenant;
• The personal circumstances of the tenant;
• A tenant’s lack of capacity and mental health;
• The consequences to the tenant of making the order. Although the court should consider what might happen to the tenant if the tenant were to be evicted, it cannot hold that the Council will inevitably find a tenant to have become intentionally homeless so that the tenant has nowhere else to stay; and
• When a case has been brought by a social landlord, whether the Pre-Action Protocol for Possession Claims by Social Landlords has been followed (https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-possession-claims-by-social-landlords – see paragraph 2.14 and 2.15).
Rent
• The rent history;
• Whether the failure to pay rent is persistent;
• Whether there have been earlier agreements to clear the arrears;
• The conduct of the landlord in seeking or waiving amounts due;
• Whether the current rent is in payment;
• Whether the tenant is making regular contributions towards the arrears;
• The possibility of arranging direct payments of current rent from the welfare benefit authority;
• The possibility of the benefit authority deducting small amounts from the tenant’s welfare benefits and paying them direct to the landlord towards the arrears;
• Whether the arrears are substantial;
• Whether possession proceedings have been issued on a number of occasions;
• When a case has been brought by a social landlord, whether the Guide on Effective Rent Arrears Management has been followed (https://assets.publishing.service.gov.uk/media/5a78c4f840f0b6324769a088/151801.pdf);
• Whether all the outstanding benefit issues have been resolved;
• When a case has been brought by a social landlord, whether the tenant is willing to move to a smaller and more affordable property and the tenant’s landlord has either refused to move the tenant or unreasonably delayed in processing any such application;
• Where a delay in processing benefits, or in considering a tenant’s change in circumstances, has at least in part caused the arrears; and
• Whether the tenant has not been provided with debt advice or with sufficient assistance by their social landlord with their benefit of DHP application.
Anti-social behaviour
• The effect that the nuisance or annoyance has had, the continuing effect, and the effect that it likely would have if repeated (section 85A(2) Housing Act 1985 and section 9A Housing Act 1988). Accordingly, special prominence is given to the impact on the victims of the behaviour;
• The seriousness and frequency of the nuisance;
• Whether it is continuing, persistent or recently abated;
• The likelihood of the nuisance continuing or re-occurring;
• Warnings issued by the landlord;
• The tenant’s remorse;
• Any medical evidence of the tenant’s mental health and consider if, with treatment, the tenant’s behaviour could improve;
• Where the tenant has committed or been convicted of a serious criminal offence in relation to conduct at their home. (Absent exceptional circumstances, it will be reasonable to make a possession order);
• Where there is an admitted breach of tenancy and an absence of an intention to cease the breach, possession should only be refused in a very special case;
• There is no general rule that it cannot be reasonable to make a possession order when the tenant has not been personally culpable for the anti-social behaviour;
• It is in the public interest that necessary and reasonable conditions of tenancy are enforced fairly and effectively; and
• The court should only take into account facts that have been proved e.g. it should not take into account the fact that a person has been arrested without first determining if the tenant committed the conduct that led to the arrest.
*The above entry was made possible by reference to: https://nearlylegal.co.uk/; https://nicmadge.co.uk/possession_-_secure.php; and Defending possession proceedings which can be bought at https://www.lag.org.uk/shop/products/211519/defending-possession-proceedings.
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