Where a landlord already has a possession order for rent arrears, but then seeks a warrant also on the basis of anti-social behaviour, the usual route has been for the landlord to ask the court to consider whether the warrant should be stayed in light of the allegations of ASB, even if the court would be minded to stay the warrant on the arrears. This was the approach in Sheffield City Council v Hopkins (2001) EWCA Civ 1023, which suggested a summary approach to fact finding in such cases.
But can such an approach work in more complicated situations? Such as where the tenant is disabled, or where the perpetrator of ASB is not the tenant, but an adult child who is not a party and also has a disability?
Midland Heart Limited v Margaret Burns and CA (a protected party by his litigation friend, the Official Solicitor), County Court At Birmingham, 3 May 2019. (Unreported. Transcript of judgment here.)
Midland Heart had a possession order for rent arrears. MH later sought a warrant, and the tenant applied to stay the warrant. MH raised issues of ASB and the condition of the property, and drug use at the property. At first instance, the District Judge found Sheffield v Hopkins applied such that this matters could be raised.
After this, the tenant’s son CA, applied through the official solicitor to be joined, as CA lacked litigation capacity. CA was joined as second defendant and sought to raise an Equality Act defence to the eviction of disability discrimination, and to have the possession order set aside in order to be able to raise that defence.
This came before Circuit Judge Murdoch.
There were, in effect, two issues.
Was the Sheffield v Hopkins approach appropriate where an Equality Act defence had been raised by a newly joined non-tenant party, given that Equality Act defences are not suitable for summary determination?
Should the possession order be set aside?
The court decided that there was no realistic prospect of either the defendant tenant or the second defendant successfully defending the original possession order made in 2014 on grounds of rent arrears, so it was not appropriate to set aside the possession order.
However, as per Sheffield v Hopkins at (28)
“I also consider that it is very important, if there are matters which are relied upon for saying that an order for possession should be the subject of further discretionary relief under section 85, that the tenant has proper notice of any allegations which are going to be made by the landlord and has the opportunity to deal with them. In considering whether an opportunity has been given to deal with the issues, the realities in a County Court must be recognised. It is especially important that district judges should not be placed in a position where they have to conduct other than the type of summary hearing that section 85 contemplates.”
The effect of raising an Equality Act defence is to reverse the burden of proof at some stages, and this required more than a ‘position statement’ from the claimant and a summary approach.
Therefore a fresh claim would have to be brought on the ASB grounds, with details and a justification for the decision making. These grounds would not be considered under the existing possession order.
The stay of eviction hearing on the rent arrears possession order would be re-listed.
This is just a county court CJ judgement, but the approach to the issues appears sound.
The joining of the non-tenant occupier is a significant step at enforcement stage. What argument there was around that is sadly not at issue in this judgment.
The decision on the Equality Act defence being incompatible with a Sheffield v Hopkins approach is sure correct, though. In this instance, it was raised by a non-tenant newly joined party (by their litigation friend), but the principle should also apply more broadly.
Our thanks to Community Law Partnership (who acted for both defendants) for the copy of transcript of judgment.