City West Housing Trust v Massey  EWCA Civ 704
When considering a suspended possession order, how should the judge exercise their discretion where the tenant’s evidence has been disbelieved, in whole or part? And should an SPO impose conditions which set responsibilities on the landlord?
These were the questions addressed by the court of appeal in these two joined second appeals. The result is overall guidance in relation to suspended possession orders for (non-rent arrears) breach of tenancy conditions.
Both the joined cases concerned social landlord possession claims where the tenants’ properties had been found to be being used for cultivation of cannabis. In both cases the tenants had denied it had anything to do with then, or any knowledge, but they were disbelieved in whole or part on their evidence. Still, SPOs were made conditionally on the tenants’ performance of their covenants in future and mechanisms for surprise inspections of their property by their landlord.
The appeals ended up before the court of appeal (with one SPO remaining and one overturned on first appeal) with the landlords posing the two questions above.
I’m going to skip the individual facts of each case, although obviously these were key to the exercise of discretion by the first instance judge. Suffice it to say that in both cases, conditions for inspection by the landlords, keeping third parties away from the property (or not allowing other parties to use the property) and keeping to the terms of the tenancy were considered reasonable in view of the likelihood of future breach.
The landlords argued that in such cases, the judge should factor in the tenant’s dishonesty to a consideration of likely future compliance, and there should be tangible evidence of an intention to change ways. They went on to suggest there should be a checklist:
- cooperation with housing authorities and prosecuting authorities
- honesty and full disclosure of previous inappropriate behaviour
- genuine remorse
- early acceptance of culpability
- the length of time the illegal activity took place (“the less the better”)
District judges should demonstrate that they had considered these matters as a matter of fairness.
The tenants argued that issues of evidence and its cogency were a matter for the judge.
“The judge’s duty was to take into account all the circumstances at the date of the hearing. Weight was a matter for the trial judge. A tenant’s knowledge of the cannabis farm is relevant but not necessarily fatal. Different judges could give different weight to knowledge.”
The issue of suspension was a question addressed to the future, which included whether conditions would aid compliance. And
“As to the objection that the conditions call for resources to be expended by a housing association, supervision by social landlords and the police is inherent in social housing.
The court has simply to be satisfied that the tenant can comply with the order. The distinction between external and internal factors made by HHJ Armitage is unjustified. Moreover, where for instance the tenant is a vulnerable person and needs the support of say a mental health worker, there have to be external factors so that the court can be satisfied that the tenant can comply with the order.”
The Court of Appeal proceeded to set out guidance, which I’ll quote in full:
Guidance for the future
What amounts to “cogent” evidence for the hope that the previous conduct will cease?
“Cogent” evidence that there is a sound basis for hope that the previous conduct will cease is not simply evidence which shows there is some basis on which it could be said that the tenant will observe the terms of his tenancy in future. The adjective used by Gage LJ was not “credible” but “cogent”. To be “cogent”, the evidence must be more than simply credible: it must be persuasive. There has to be evidence which persuades the court that there is a sound basis for the hope that the previous conduct will cease or not recur.
This Court has repeatedly made it clear that when making an SPO the court has to make a judgment about the future and that the focus at this stage is on the future and not the past (see, for example, per Gage LJ in Sandwell and per Maurice Kay LJ in Canterbury CC v Lowe). By stating the requirement to be “cogent” evidence that there is a sound basis for hope for the future, the standard is pitched at a realistic level. On the one hand, the tenant does not have to give a cast-iron guarantee. On the other hand, a social landlord does not have to accept a tenant who sets out to breach the terms of his tenancy and disables the landlord from providing accommodation in more deserving cases.
There is no principle that the cogent evidence regarding future compliance must stem solely from the tenant himself, without any regard to how others might behave. The likelihood or possibility of action by others, or even the perception that others might take action, may in an appropriate case be evidence which supports an overall assessment that there is a real hope of compliance in the future. For example, a tenant who has mental health problems affecting his ability to comply might be able to show that his compliance in future is made likely because of support received from others.
Similarly, the inclusion of an inspection condition in a SPO might provide support for an assessment that the tenant will comply in future, if his fear of being evicted is sufficiently strong and he thinks the risk of inspection is real rather than illusory.
Resources of the social landlord
Mr Moss makes the point that social landlords have limited resources and that idea of having regular inspections in the Manchester case came from the judge. I accept that the judge, when framing conditions, has to be careful not to expect a social landlord to do more than is reasonable, having regard to all the circumstances. Those circumstances include the resources of the social landlord, which will be limited. As Mr Lewis points out, social landlords may be expected in some circumstances to be ready to take an active role, as an ordinary incident of checking on their housing stock. Similarly, the police may be expected to have a general interest in keeping an eye on what goes on in their area. It will be a matter of evaluation for the district judge whether the prospect of inspection in fact, or the perception of a risk of inspection, is sufficient to support an overall assessment that there is cogent evidence which provides real hope that the terms of the tenancy agreement will be properly respected in future.
Dishonest evidence does not prevent the court from finding cogent grounds
Mr Marcus and Mr Moss correctly held back from arguing that dishonesty in a tenant’s evidence in regard to the grounds for possession is a complete bar to the making of an SPO. Mr Lewis suggests many reasons why this is not so. Among those reasons, Mr Lewis submits that ground 17 in schedule 2 to the Housing Act 1988 (which makes a false statement by a tenant in his application for a tenancy a discretionary ground for possession) shows that dishonesty cannot be a bar. On this, Mr Marcus is right that this may not be a helpful analogy as the false statement may have been made many years previously. It is enough to say that even a person who genuinely wants to comply with his tenancy agreement in the future may give false evidence and make up a false story because he thinks that the truth is unlikely to be plausible or acceptable. That is one of many possibilities for the court to consider.
Tenants should realise that if they lie in their evidence to the court they run the risk that the court will find that their evidence is not to be trusted on other matters and that the court will not accept assurances from them for the future. Giving false evidence is a very serious matter and it may have very serious consequences for the tenant.
However, because each case must be considered on its own facts, the judge has to decide whether there is a sound basis for saying that the tenant changed his or her ways. There is no absolute rule that a tenant who has lied in his evidence cannot ever succeed in having a SPO made in his favour. Even though lies have been told, it may be appropriate for a district judge nonetheless to make the assessment that cogent evidence exists which provides a real hope that the terms of the tenancy agreement will be respected in future. That will require careful consideration and appropriate explanation when the district judge gives his reasons for making an SPO.
The decision to grant or not to grant an SPO involves two stages
An application for a suspension involves not just the exercise of discretion but also the making of findings of fact on the basis of which the discretion is to be exercised.
The trial judge hearing the evidence should determine which of the relevant evidence of the tenant he accepts and which he rejects. In this he will be much assisted if the tenant has been challenged in cross-examination on any discrepancy in his evidence. The judge may well want to consider the circumstances of any testimony by the tenant. As Sandwell shows, the tenant should normally give evidence in court so that the court can assess his credibility.
The court making the order for suspension on the basis of the tenant’s assurance that he will comply with the terms of the tenancy in future, or some conditions which the court decides to impose, may choose to cross-check his assessment of the assurance by reference to the other available objective evidence, and the probabilities based on the surrounding circumstances, together with what he finds to be the motives and interests behind a tenant’s actions.
Mr Marcus suggests that this Court should be specific as to the matters that the trial judge has to consider and provide a check-list, which could be based on matters identified by Mr Moss in his skeleton argument (see paragraph 35 above). This is not an appropriate course. The danger of a check-list is that it gives rise to an expectation that other matters are not relevant or should have less weight attached to them.
In any event, many district judges already have considerable experience of dealing with applications for possession orders and in considering whether to make SPOs, and therefore in assessing the cogency of excuses and explanations put forward by tenants who have possession orders made against them as to why they can be trusted to comply with their tenancy agreements in the future, despite breaches in the past.
Moreover, cases will vary and a check-list might induce a judge to fail to recognise as relevant matters which are not set out in it; it might also induce an unhelpful tick-box approach in place of a true exercise of judgment, which is what is required; and an insistence that a check-list be followed might needlessly take up time and resources and detract from the expeditious dispatch of business in heavily loaded court lists.
That said, the items in Mr Moss’s list – cooperation with housing authorities and prosecuting authorities, honesty and full disclosure of previous inappropriate behaviour, genuine remorse, early acceptance of culpability – may be matters which a court wishes to consider in any individual case.
The decision whether to make an SPO not only involves a multi-factorial assessment. It also calls for a broad, commonsensical assessment as Lord Greene MR held in Cummings v Dawson  2 All ER 653 (CA) in relation to reasonableness:
“In considering reasonableness… it is, in my opinion, perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, common-sense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive…”
Reasons for a judicial decision
The principles governing the giving of reasons in judicial decisions apply to decisions about SPOs, and they need not be set out here. Reasons must be given which adequately explain why one party has lost and the other has won. The decision must be fairly read. An appellate court would be slow to hold that a trial judge who referred to a point at one stage in his judgment but not when he came to exercise his discretion had therefore failed to give adequate reasons for the exercise of discretion.
In the present cases, there were no errors in the first instance decisions that would justify interfering in the exercise of discretion, so both SPOs stood.
On the Manchester case, where the Circuit Judge had overturned the SPO:
One of the grounds on which HHJ Armitage QC allowed the appeal to him was that he took the view that under the Sandwell test DJ Hayes was wrong to take into account the impact of inspections by Manchester when considering whether there were cogent evidence that there was a sound basis for hoping that Mr Roberts would comply with the terms of his tenancy in future. In my judgment, this is to read the test too literally. As explained in paragraph 53 above, the Sandwell test does not require the court to exclude external means of monitoring the tenant. On the contrary such means constitute one of the relevant circumstances to be taken into account. A tenant may show that there is cogent evidence in any way. Nor would it be right to restrict the type of evidence because there are circumstances in which people require some help to honour their commitments. For example, a tenant who suffers from schizophrenia which causes him to forget that he has to pay his rent may need to report that he has taken his medication to some health worker. Obviously the tenant has to be willing to comply with his tenancy agreement – that is something which can only come from him – but he may not be able to do so unless there is some action that a third party takes or can take.
In my judgment, the decision of HHJ Armitage QC is flawed because of the view he took about external means. I can understand how the judge reached his conclusion on this, but nonetheless it is wrong.
Clearly, this judgment will be cited in every (non rent arrears) possession claim for breach of tenancy in the future. Watch out for attempts to turn the “guidance” into a test, against the actual operation of judicial discretion