Webb v Wandsworth LBC (Court of Appeal, November 12, 2008, extempore judgment and only noted in Arden Chambers Eflash 328)
Ms Webb was the secure tenant of LB Wandsworth. Between 2005 and 2006 her son was involved in a number of serious criminal and anti-social acts in the local area. In response, Wandsworth issued possession proceedings relying on Grounds 1 and 2, Sch. 2 Housing Act 1985. Shortly thereafter, an ASBO was made against the son. The son subsequently left the family home, although he would regularly return to visit his mother.
The possession trial came on in October 2007. There had been no ASB for a year and the son had been living elsewhere for 8 months. The Judge made a postponed possession order, apparently taking into account the fact that the son had been charged (but acquitted) of three breaches of the ASBO.
Ms Webb appealed to the Court of Appeal and contended that the three acquittals were irrelevant considerations. The Court unanimously upheld her appeal and quashed the possession proceedings. It was wrong in principle to take those matters into account.
Sedley LJ has, apparently, gone further and in his judgment, has stated that it is not permissible to use a possession order as a means of trying to force a tenant to exercise control over a third party.
It is, as you might imagine, the comments of Sedley LJ that appear to be the most interesting. I defend a fair few ASB cases and one of the things which most frustrates me is seeing my clients being demonised for the actions of their children/(drunken) partners. At a personal level, I hope the transcript of this judgment is as promising as the Eflash suggests it will be.
Yes but…
How given the ever incresing expectations of housing officers dealing effectively with ASB can we deal with cases where the nuisance is caused by residents in the property other than the tenant?
I take the point that in this case the son had been living elsewhere, but he was still visiting, and most tenancy agreements state that you are responsible for the behaviour of everyone in the household and any visitors to the property. Tenants should surely be responsible (not demonised) for the behaviour of the household and visitors to the property, otherwise landlords have no powers to stop nuisance.
Well, it depends on the facts of each case but, if the cause of the nuisance is an adult, surely an injunction under ss153A-D Housing Act 1996 is likely to be (i) effective (ii) quicker and (iii) cheaper. In the case of a child, one should consider an ASBO or other remedy as appropriate (such as, perhaps, a dispersal order).
I don’t understand the rush to possession. Pretty much any other remedy is likely to be (i) quicker and (ii) cheaper and, of course, if a landlord doesn’t consider other remedies, then that gives defence counsel a ‘free hit’ in cross examination, to show that the landlord rushed to judgment without considering all the options (or its own ASB policy).
Well I wouldn’t take possession action unless the tenant had shown that they had no inclination to work with the council to either solve the problem or exlude the person causing the problem as you mentioned. Still if they were not working with the council, possession would be an option considered.
On your second point, I think possession proceedings are used so much because they are what Housing Officers know best. This is perhaps part of a wider problem where Housing Officers simply don’t have resources to meet tenant’s expectations on ASB, haven’t been given the training on what is a fairly complex legal area, and where dealing with ASB is only one part of a difficult job.
Calling All Housing Law Sleuths
Didn’t quite know where to slot this in so entered “anti social” in the search and went for the first one that came up.
Does anyone know the fate of the named tenants (I’m presuming they are tenants – what a snob! I’m presuming they’re the boys’ mothers (and not fathers) what a double-snob!) who housed these perps?
http://www.guardian.co.uk/uk/2008/dec/09/crime-hackney-rape-gang
There was a short discussion a few months ago on here that seemed to imply that landlords could invoke Ground 2 (of some or other act) to evict on the basis that an indictable offence has taken place in or near the dwelling.
Does anyone know if the landlords took such an action?
Did it succeed? (or were the loving, nurturing parents saved by a HLPA Superhero?)
Very interested to know.
Are there no readers from the London Borough of Hang-em-high on here? No Hackney Five-0 cops with the inside gen?
Or is the silence saying that no possession proceedings are being taken?
That would mean that about 2 years from now the Magnificent Seven will be back on their manor swapping war stories, blaming everyone else, and stalking disrespectful pre-teens?
Maybe landlords are of the mind that the “may order possession” in Ground 2 equally means “may not”, but that’s not a good enough reason not to give it a go.
Or this lovely lot?
http://www.guardian.co.uk/uk/2008/dec/17/rhys-jones-killer-gang-culture
Never been to Liverpool (sorry) but Croxteth looks like it might have the odd RSL tenancy in it – or are these all the off-spring of freeholders?
That’s a point, would there be anything in a leasehold covenant commensurate with the indictable offence ground?
That’s housing law poser worth investigation, no?
Michael. Not a poser at all – it depends on the lease. There is often a ‘don’t cause nuisance to other lessees’ clause.
And forfeiture could result, I presume.
But only if an action is brought.
If any scouse solicitors are reading this because they’re short of work… go solicit (we won’t tell).
An action could only be brought by the freeholder/superior lessee
Noted in the Times law reports today
More high jinks in the concrete jungle:
http://www.guardian.co.uk/uk/2009/jan/20/gang-rape-caustic-soda-london
Ground 2 news from anyone in Haringey?
One was from Walthamstow, one from Tottenham and one living in Stockwell. Hm. Stockwell. Any news there?
Yes, so maybe spread as wide as Haringey, Waltham Forest & Lambeth.
Might be a push to claim that the Saint in St.Ockwell committed the indictable offence “in the locality of the dwelling house”, but the others are worth a stab. Or shanking, to use the modern vernacular.