Birmingham CC v Ashton is a case which illustrates the difficulty that judges face when they are invited to make possession orders on the grounds of nuisance and anti-social behaviour against tenants with mental health problems.

The Council relied on four incidents of ASB between 2004 and 2010, three of which involved Mr Ashton’s next-door neighbour, Ms Benton, and which included threats with a kitchen knife and the brandishing of a samurai sword outside the premises. Mr Ashton was subsequently detained under the Mental Health Act. He was also convicted in the Crown Court on 11/10/10 of affray and of possession of an offensive weapon in connection with the samurai sword incident and as part of a Community Order, he was ordered to stay out of the property for a three year period, to remain under supervision at approved addresses for three years and to undergo mental health treatment.

A statement on behalf of Ms Benton from January 2011 asserted that her family continued to suffer trauma as a result of the incidents involving Mr Ashton and they spent a significant amount of time out of the property.

The case came before HHJ Owen QC on 20/12/11 and the judge was provided with psychiatric evidence from a consultant, Dr Van Woerkom, who considered that Mr Ashton’s bi-polar disorder was stable, the risk of re-offending was low (20-30%) and that the prognosis for Mr Ashton was good, assuming that he refrained from drug and alcohol use.

The judge also accepted the evidence from Mr Ashton (with hesitation owing to the lack of corroborative evidence) that he had abstained from drug usage since his discharge from hospital in October 2010, that he had co-operated with his Drug and Alcohol Team and other support services and that he harboured no ill-feeling towards Ms Benton and her family.

The judge found that it was reasonable to make a possession order but that such an order be suspended. The Council appealed, asserting that the judge had given insufficient weight to the factors under s.85A(2) of the Housing Act 1985, which read:

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

In particular, it was claimed that the judge had attached insufficient weight to the impact of Mr Ashton’s conduct on Ms Benton and other residents in the neighbourhood if it were repeated.

The Court of Appeal found that the judge had approached the evidence from the wrong angle. The evidence that Mr Ashton would not re-offend was conditional on abstention from drug and alcohol usage and there was no evidence that Mr Ashton had been successfully treated for his drug problem. Furthermore, there was no medical indication of the likelihood of him remaining abstinent, particularly given his absence from the property at which the offending occurred. Accordingly, no cogent evidence had been presented by the tenant (following Sandwell MBC v Hensley [2007] EWCA Civ 1425 ) that the offending behaviour would not recur and the judge, in suspending the Order, had not looked at the prospects for the future or the likely effect on other residents of repetition.

The Appeal was allowed but the Court decided that the question of suspension ought to be considered by a different judge, particularly given the lapse of time and the fact that Mr Ashton had successfully applied to the Crown Court to vary the Order to enable his return to the property.

Comment: It is possible to detect in this judgement an echo of the recent point made by Neuberger LJ in Corby BC v Scott that  a judge “should not let understandable sympathy for a particular tenant have the effect of lowering the threshold”. That point seems to be relevant to the factors under s.85A(2) of the Housing Act 1985 as it is to Article 8 proportionality. The Court of Appeal expressed sympathy for the judge’s task and it strikes me that these cases are highly fact sensitive. For instance, had this been a case of  a mentally ill tenant merely banging on walls and ceilings, it is debatable whether the Court would have been required to look too far beyond the tenant’s assurances that such behaviour would not recur. In any event, it is clear that the Court was hesitant to decide the case against the Defendant in view of his personal circumstances and that he ought to be given the opportunity, at least, to provide more comprehensive medical evidence to support his case for suspending the Order.