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Court of Appeal sets new precedent for landlords evicting troublesome tenants
A landmark judgement last month gives some much-needed clarity for providers issuing warrants for possession to anti-social tenants, writes Liam Hale
On 26 July 2018 the Court of Appeal handed down its judgment in the landmark case of Paragon Asra (PA) Housing v James Neville.
The decision provides clarity and confirmation on an issue that has troubled housing associations and their advisors for a number of years.
To understand the impact of the decision, it helps to be reminded of the facts of the case.
The property was let to Mr Neville under the terms of an assured (non-shorthold) tenancy agreement.
Over the years, he breached his tenancy agreement on numerous occasions by causing nuisance and annoyance and harassing neighbours, resulting in PA Housing issuing a claim for possession of the property.
Mr Neville defended the claim on the basis that all the breaches were as a direct result of his personality and behavioural disorders, and that by issuing possession proceedings PA Housing had discriminated against him.
At the possession trial, the district judge found that making a possession order was proportionate and went on to make a possession order suspended on the terms that Mr Neville did not commit any further breaches to the tenancy agreement.
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Almost immediately after the order was made, Mr Neville began breaching the tenancy agreement, again.
PA Housing issued a warrant for possession and an appointment with the bailiff was made. Mr Neville applied to suspend the warrant for possession on the basis that it would be discriminatory.
At a final hearing, it was held that it was unnecessary to again consider whether there would be discrimination against Mr Neville on disability grounds.
There was no material change in circumstances and the court had already found that PA Housing’s actions were proportionate.
While Mr Neville successfully appealed that decision in the High Court, the Court of Appeal agreed with PA Housing saying that district judge had applied the right test.
How does this impact suspension of warrant applications?
The Court of Appeal’s judgment raises two important principles to bear in mind when dealing with warrant suspension applications:
- Where the court has made an order for possession and has already found that the making of a possession order is not discriminatory against a tenant, the court does not need to carry out another review of proportionality at the warrant stage unless there is a material change of circumstances
- The district judge in this case had failed to explicitly apply a well-established test for proportionality which was set out by the Supreme Court in Aster Communities v Akerman-Livingstone, namely:
- Is the objective (i.e. the eviction) sufficiently important to justify limiting the occupants fundamental rights?
- Are the means rationally connected to the objective?
- Are the means no more than necessary to achieve that objective?
- Do the ends justify the means?
However, despite the district judge failing to apply this four-stage explicitly, the court said it should consider whether a court has contemplated proportionally in substance.
In practice
These are issues that have been at the forefront of debate between practitioners for a number of years and this judgment offers some clarity as to what principles should be applied by the court.
If housing associations are dealing with warrant suspension applications involving disabled tenants, they now need to consider two things:
- Did the court consider the issue of proportionality when making the possession order?
- Has there been a change in circumstances?
If the answer to the first question is yes, then the court will not need to reconsider the issue of proportionality at warrant stage unless there is a change of circumstance.
It may be of assistance to record in possession orders that the court has considered the issue of proportionality.
In a lot of cases involving disabled tenants there will be a change of circumstances and the court in these cases will need to consider the issue of proportionality afresh.
Finally, the fact that the Court of Appeal found that the district judge had dealt with the issue of proportionality in substance offers some re-assurance to providers going forward.
Liam Hale, associate, Winckworth Sherwood
