We first noted Webb v LB Wandsworth [2008] EWCA Civ 1643 in November 2008 when it was discussed in an Arden Chambers eflash. Earlier this week, the transcript was finally released. Slightly later this week, it was corrected so as to make sense. Thus, 9 months after the decision, we can finally tell you what Sedley LJ was actually saying.

Ms Webb was (and, as far as I know, still is) the secure tenant of the London Borough of Wandsworth. One of her children had been engaging in serious anti-social behaviour in and around Ms Webb’s home. By the time of trial, he was no longer residing with Ms Webb although he was not living very far away and would return to visit Ms Webb. At the date of trial it appeared that there had not been any ASB for about a year. The high point of the case for the local authority was that the son had been arrested (but not convicted) on three occasions for breach of an ASBO.

It was common ground that Grounds 1 and 2 were made out, but Ms Webb contended that it was not reasonable to make an order. Wandsworth argued that it was reasonable to make an order, but that it should be postponed on terms.

The Circuit Judge made a PPO, with terms requiring inter alia, the son not to reside at the property and Ms Webb appealed to the Court of Appeal.

Ms Webb raised the following grounds of challenge:

(a) There was very little behaviour that Ms Webb was personally culpable for. Wilson LJ, giving the main judgment, accepted that this was a relevant factor but, following Bryant v Portsmouth CC [2000] 32 HLR 906, there was nothing objectionable in requiring Ms Webb to take responsibility for the behaviour of her household. In addition, following Manchester CC v Higgins [2006] HLR 261, the existence of the ASBO against the son indicated that it would be reasonable to make an order;

(b) Wandsworth had failed to follow their ASB policy, which, in broad terms, indicated the possession proceedings would be instituted only where other remedies had failed. On the facts, said the court, the policy had been followed. There had been many other attempts to resolve the ASB, including the acceptance by Ms Webb and her son of an Acceptable Behaviour Contract. In addition, his Lordship was not entirely satisfied that a tenant could raise a defence/reasonableness argument based on the terms of an ASB policy

(I break here to note that his Lordship is, with respect, wrong to have any such doubts. An ASB policy is something that a local housing authority / housing association must have, see s.218A Housing Act 1996. The Secretary of State is further empowered to issue guidance on the contents of the same, see s.218A(7). It is, as a matter of public law, not open to public body to simply ignore policies or Government guidance – R (Rixon) v LB Islington (1998)  1 CCLR 340 – indeed, they have “special importance where the behaviour of the tenant’s children is at the root of much of the trouble” – per Brooke LJ in Moat Housing Group v Hartless [2005] EWCA Civ 287, at [102])

(c) The Judge had used the possession order as a means of further sanctioning the son, since it was primarily him and his behaviour that was likely to result in any breach of the terms of postponement. This was entirely legitimate and, whilst the Judge would have been well advised to expressly consider the interests of the other children and the harm that would result to them if the son were to breach the terms of the postponement, this was an ex tempore judgment and the Judge had the relevant evidence before her during her judgment.

(d) The Judge had taken the allegations of breach of an ASBO into account. It was, Wilson LJ held, inappropriate to even consider unproven allegations. They were irrelevant to the question of reasonableness and, as the Judge had taken an irrelevant factor into account, the whole decision had to fall.

Sedley LJ, in a short concurring judgment, went slightly further as regards point (c). To his mind, there is a difference between a court (i) making a tenant responsible for persons who the tenant has a degree of control over and (ii) making a tenant responsible for persons over whom the tenant has no control. The latter is impermissible (Wilson LJ (albeit obliquely) appears to say something similar at [5]. I think you need to read [5] with [24] to understand what Sedley LJ is saying).

In addition, the court should have given express consideration to the Article 8 rights of the other inhabitants of the house before making a possession order. The case appeared to Sedley LJ to be one where it was appropriate to adjourn on terms.

Mummery LJ added nothing of substance but dealt with a minor procedural matter.

This isn’t quite as strong a judgment from Sedley LJ as I’d hoped, but it’s far from bad news. I do think that there is some difficulty in the idea that a tenant should always be responsible for the acts of their visitors/other residents. Why should one adult be responsible for the acts of another adult? In the criminal field, we’ve abandoned any such idea (R v Simon Kennedy [2007] UKHL 38). Surely the time has come to recognise that Bryant has to have some limits? I do think the position as regards liability for the acts of ones children is more complex, but, as regards adults, it seems to me that this might be the start of a (welcome) retreat from Bryant.