I was scanning the Court of Appeal judgments, waiting for White v Knowsley, when this came up:

London & Quadrant Housing Trust v Ansell [2007] EWCA Civ 326

Now that is interesting. Not so much for the conclusion – although the argument is imaginative – but for unappealed County Court findings and obiter by the Court of Appeal.

Briefly, the facts were that the Defendant/Appellant had a secure tenancy with London & Quadrant. A suspended Possession Order was made in Feb 2001 on grounds of rent arrears, £1169 arrears and £120 costs to be paid in instalments, and the terms of the Order were breached shortly afterwards. Ansell became a tolerated trespasser.

Following a payment of housing benefit, Ansell’s account went into credit by some £300 in 2004.

Then L&Q issued a claim for possession in Feb 2006 on grounds of nuisance to neighbours. Clerkenwell County Court granted outright possession.

The appeal was on the basis that, as Ansell was a tolerated trespasser, L&Q in bringing the new possession claim, rather than seeking to enforce the 2001 order, were seeking to bring an action on the judgment of the earlier proceedings; that this was not open to L&Q; and that enforcement of the earlier order was the only route open to L&Q.

The Court of Appeal said that, if the Court’s powers under s.85 Housing Act 1985 had remained exerciseable, this would been the case. However, the County Court had found (and crucially this was not appealed – why not? Why ever Not? Even as an alternative?) that both the arrears and costs had been paid off, even though there was no evidence that costs had been rolled into the arrears or paid separately. Thus the 2001 possession Order was no longer enforceable and, via Marshall v Bradford MC, the Court had no powers under s.85 to enforce or vary the order.

The prospect was thusly of the intriguing proposition that a tolerated trespasser who had paid off arrears and costs was effectively immune from both any enforcement of the original possession order and, crucially, any further possession proceedings. Thusly unevictable.

Unsurprisingly the Court of Appeal was not having this. It held that L&Q were not seeking to enforce the order of 2001 nor was possession being sought on historic rent arrears. Rather the tenancy had ended in 2001, there was no possibility of reviving the tenancy via s.85 (debateable – but not argued here) and no fresh tenancy had arisen by conduct. L&Q was simply relying on the end of the tenancy via the 2001 order and this was not a way of seeking to enforce it otherwise than by in those proceedings.

The Court of Appeal upheld the possession order made by the County Court.

The significant bit here is the unappealed issue of when the Suspended Possession Order ceases to be enforceable or variable by the Court under s.85. The 2001 Order stated:

You must also pay to the claimant £1,049.15 for unpaid rent, use and occupation of the property and £120.00 for the claimant’s costs of making the application of possession.

You must pay the claimant the total amount of £1,169.15 by instalments of £2.65 per week in addition to the current rent. The current rent is £84.00 per week. The first payment of both these amounts must be made on or before 5 March 2001. When you have paid the total amount mentioned the claimant will not be able to take any steps to evict you as a result of this order.

So both arrears and costs must be paid off. In this case, the County Court, despite the Defendant’s evidence that she had not paid or made payments towards the costs of £120, decided that:

. . . it is quite clear to me that the payments made by the defendant were both for arrears of rent/mesne profits and costs. There is simply no basis for asserting that the payments for costs only occurred at the end of the payments for the arrears of rent/mesne profits.

This strikes me as iffy, to say the least. It was apparently vaguely based on the idea that the Defendant’s rent account had gone into credit in an amount exceeding the costs, but with no examination if any payment or payments could be set against the costs.

This was just a first level decision (I have seen a number of County Court decision go the other way), but it now has the recognition of a Court of Appeal judgment. However, as the point was not appealed, the Court of Appeal had to go along with the finding and decide on that basis. The Court of Appeal was clearly not happy with that. In obiter – the ‘some points to note’ of Lord Justice Chadwick’s judgment (para 51):

I confess to some unease in finding that the Court is driven to the conclusion that Ms Ansell has lost the protection afforded by the provisions of section 85(2) of the Housing Act 1985 in circumstances in which -without her concurrence and, perhaps, without her knowledge at the time – the whole of the monies to be paid under the order of 19 February 2001 were paid by an unanticipated change in the pattern of housing benefit payments. Although I am satisfied that the Court is driven to that conclusion by Ms Ansell’s decision (no doubt on advice) not to appeal the finding of the judge as to the effect of the housing benefit payments – and by the decision in Swindon Borough Council v Aston (which is binding upon us) – I cannot avoid thinking that it would have been more satisfactory if the question whether Ms Ansell should be required to give up possession of her dwelling-house could have been addressed in the context of an application to stay or suspend the execution of the possession order of 19 February 2001.

And the subsequent points made by Lord Justice Lloyd, also show a clear unhappiness with the County Court finding.

Also worth noting is the unease with the ludicrous and counter-intuitive situation in which a tolerated trespasser should avoid paying off arrears and costs until making an application under s.85(2) to postpone the date of possession. Lord Chadwick says, again obiter:

On a more general basis, as it seems to me, the decision in Swindon Borough Council v Aston – that the powers under section 85(2) of the 1985 Act are not exercisable once a possession order ceases to be enforceable on payment of all the monies which are to be paid thereunder – provides a trap for former tenants and their advisers who do pay what the order requires them to pay without first making an application to vary the order by postponing the date of possession. The problem is compounded if – as will frequently be the case – the former tenant has not complied strictly with the conditions imposed by the order; and so cannot seek discharge or rescission of the possession order under section 85(4) of the Act.

Well quite.

So, it looks like the issue of when the SPO becomes unenforceable, and with it the possibility of applications under s.85, will rumble on with varying County Court judgments until the Court of Appeal does get to deal with it.