By Dave
16/12/2008

Risky business

In CDS Housing v Bellis [2008] EWCA Civ 1315, the Court of Appeal in a short judgment upheld a possession order made in favour of the Claimant housing association against Mr Bellis, a secure tenant, who suffered from serious delusions. Mr Bellis appears to have believed that “there was electro-magnetic radiation or something similar emanating from either the central heating or some other part of the electrical system of the flat” which lead him to damage the electric and gas installations in the property. The property was, therefore, in a dangerous situation and Mr Bellis had not removed his stuff from the flat to enable CDS to do the necessary work. CDS obtained an injunction requiring Mr Bellis to remove his belongings. He, in turn, does not appear to have lived in the property for some time.

In these circumstances, CDS sought possession of the property. The transcript is frustrating because it does not contain detail about the relevant ground for possession relied on by CDS. But, in any event, the question addressed by the Court was whether an order less that immediate possession would have been appropriate, the Judge having made this order at first instance. In response, the question Jacobs LJ asked is significant:

That boils down, as I see it, to a simple question: could the court be satisfied that there was no longer any real risk that the appellant would not do to the property that which he had done before? I put it that way rather than a more generous way, which might be ‘was he likely to do it again?’, because I do not think that would be the right test. The reason the real risk test in the circumstances of this case is the appropriate test is the enormity of the consequences of getting that judgment wrong; great danger to the appellant and to the other tenants. So as it seems to me, the matter, when it came before the judge, boiled down to one simple question: could the judge be satisfied that there was no real risk that the appellant would do no further damage if the property were repaired? (para 5)

This phrasing of the appropriate test is significant – as any person skilled in risk assessment/management tells me, most future events can be constructed as a real risk. Framing the question in this way then, effectively provides the answer. In some respects, this was not a great case for getting to grips with this risk-based test (and what is a “real risk”) because, on the evidence, whichever test was adopted, it would be unlikely that the Court would have disturbed the judge’s order. That was because of the evidence given by Mr Bellis as well as his consultant psychiatrist: “[Mr Bellis] failed to understand that actually there was nothing wrong with the property, and his immediate idea of what would happen if he thought the property was causing him ill-health was not to go to the medical team but his solicitor” (para 12). But the interesting thing going on here was the equation of “real risk” with “reasonableness”, the Court of Appeal seeming to suggest that a real risk would make it reasonable to order possession (they say that this case does not involve questions of principle at para 4, but I kind of disagree on that and it does provide ammunition to landlords). Again, on the facts of this case, the outcome is hardly surprising given the potential for the whole block of flats to have blown up, Ronan point like. Another interesting thing, of course, is the post-Malcolm total lack of discussion of the DDA – not that it would have been helpful to Mr Bellis in any event but because it was a useful tool in the box and it just demonstrates the pace of change in housing law at the moment.

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