Poplar HARCA v Kerr. Central London County Court 26 July 2023. (Unreported. Judgment here.)
This was a county court appeal to a circuit judge on the issue of whether a pre-existing suspended possession order, made on a discretionary ground, could be varied on the application of the landlord to an outright order on a mandatory ground. As ever with County Court appeals, not binding precedent, but may be persuasive.
Ms Kerr was Poplar’s assured tenant since 2004. In 2017 a possession order was made on grounds of rent arrears. It was suspended on terms of payment of rent plus £3.75 per week towards the arrears.
In 2020, Ms Kerr’s son pleaded guilty to an offence committed at the property, possession of an imitation firearm with intent to cause of violence, and was sentenced to 14 months imprisonment. Poplar served a notice seeking possession on Ms Kerr listing, amongst other grounds, Ground 7A, and explaining why each ground was relied up. Ms K was informed of her right to seek a review of the decision to recover possession. Ms K requested a review and the decision was upheld.
Instead of bringing a fresh possession claim, Poplar applied to the court to vary the existing possession order (which had not been discharged), to provide for outright possession on Ground 7A. This was said to be “in accordance with the rule in Manchester City Council v Finn”. At first hearing, after hearing both sides, the District Judge considered that she had jurisdiction to so vary the order and that Ground 7A was made out. She varied the order to an outright possession order.
Ms K appealed. Ms K argued that it is was not within the court’s jurisdiction, under either section 9 Housing Act 1988, or under a general jurisdiction to vary a possession order, to turn an order made on a discretionary ground into one made on a mandatory ground. (There as some confusion about section 9, which was found not to be in issue, as it hadn’t been invoked. The question was the court’s powers while a possession order was still running.)
HHJ Luba KC held that the court did have jurisdiction to make such a variation to the order.
Manchester City Council v Finn, (2003) HLR 41 provided for variation on application by the landlord even where section 9 had not been invoked by the tenant. Finn also contemplated varying a suspended order to an outright order. There was no reason why this should not also extend to varying from a discretionary to a mandatory ground.
(The position under section 9 was clearly distinct, as section 9 would not allow for this.)
The requirements for the ground would have to be complied with – as here for Ground 7A – a notice seeking possession and a right to seek a review of that decision. But if that was done, then there was a power to vary an extant possession order.
I consider that the law does not require the issue of fresh proceedings and that the jurisdiction identified in Finn is sufficiently wide to enable the court to make an order of variation of the type made by the judge in this case. That is my determination of what I consider is the real ground of appeal in this case and the one for which I have given permission. Of course, the exercise of discretion by the judge in relation to variation might have been open to challenge but there is no such ground of appeal in this case. The question has never been, “should the judge have done what she did?”, but, “could the judge have done what she did?” For the reasons I have given, I am satisfied that she could.
Appeal dismissed.
Dear Giles Peaker,
What was that recent case where a Council (Croydon?) was told that a plea of insufficirnt funds was no defence to a claim of beaches of duty to (house?) If you didn’t remark upon it, perhaps you think it an useful lesson to comment upon, now?
Best wishes, MF
Well no. It is completely irrelevant here.
OK – sorry to trouble you, but can you direct me to it, please?
MF
https://nearlylegal.co.uk/2023/12/saying-you-are-broke-isnt-enough-to-avoid-a-duty-suitable-accommodation-and-resources/
Brilliant – tvmuch.
MF
PS – I went straight to the case and have only just read your “full disclosure”: congratulations and well done.
MF
Hi Giles and all
I am the solicitor representing the appellant Janet Kerr. My clever and trusted counsel are Martin Hodgson (lead) and Daniel Grutters (junior) of One Pump Court.
After the appeal was dismissed by HHJ Luba KC, the Court of Appeal granted Janet Kerr permission to appeal. The cases of Poplar HARCA v Janet Kerr (CA-2023-001617) and linked case of Hajan v London Borough of Brent (CA-2023-002200), were listed to heard back to back on 9th and 10th October 2024.
The “high profile and legally significant” cases will be live streamed and be accessible from the judiciary’s website here:
https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/the-court-ofappeal-civil-division-live-streaming-of-court-hearings/.
The video will also be accessible from this website after the hearing.
Rt. Hon. Lady Justice Andrews DBE, in granting permission to appeal on the case of Poplar HARCA v Kerr stated:
“1. The case raises an important issue of principle and practice, namely, whether the court has jurisdiction to vary an existing suspended possession order granted on a discretionary ground to an outright possession order on a mandatory ground (in this case Ground 7A of the Housing Act 1988) or whether the landlord must commence fresh possession proceedings in reliance on the mandatory ground.
2. Despite what the respondent has said in its para 19 statement and the judge’s observations in para 38 of his judgment, it seems to me that the appeal cannot properly be considered without regard to the question whether the court would have had the power to make a possession order on a mandatory ground if an application had been made by the landlord under s.9 of the Housing Act 1988 in similar circumstances. There is a respectable argument that if the landlord could not have actively sought a possession order on a mandatory ground in proceedings commenced for a possession order on a discretionary ground, because that would be contrary to the statutory scheme, then there can be no inherent power in the court
to bring about the same result by the back door using a liberty to apply to vary the court’s earlier suspended order for possession made on entirely different grounds.
3. The appeal also raises important issues of wider application concerning (i) the scope of and indeed the correctness of the decision of this Court in Manchester City Council v Finn [2002] EWCA 98 and (ii) even if the decision is correct that a possession order suspended on terms inherently contains an implicit liberty to
apply, whether that implicit liberty to apply confers an independent power on the county court to vary a suspended order for possession on one ground to an absolute order for possession on a different ground (irrespective of whether s.9 enables this to happen).
4. Although the reasoning of the Judge, who is a considerable expert in this field, appears very persuasive, I consider the grounds of appeal to be arguable with a real prospect of success. In any event regardless of the merits of this case, it seems to me that there are compelling reasons for this Court to consider this appeal, because the issues are likely to arise in other cases. Indeed, very similar issues are going to be considered by this Court anyway. It is sensible that they should not be dealt with in a piecemeal fashion.
5. HH Judge Luba has already granted permission to appeal from an order made by DDJ Samuel and transferred the appeal directly to the Court of Appeal pursuant to CPR 52.23(1) in Hajan v London Borough of Brent CA-2023-002200. He specifically referred to it raising similar issues to those canvassed in this appeal when he did so, and suggested that the two cases be linked, from which I infer that he may well have granted permission to appeal in this case if he had had the power to do so – or at the very least that he anticipated that permission would be granted. One of the issues in that case is whether the landlord could amend its particulars of claim to rely on a notice seeking possession on a mandatory ground after issuing proceedings seeking possession on a discretionary ground. The notice seeking possession on the mandatory ground post-dated the issue of the claim form. It is contended that the landlord’s behaviour was contrary to the scheme of the Housing Act 1985…”
It will be very interesting to see how things unfold in the Court of Appeal. I will keep you posted.
Shazina Hussain
Consultant Solicitor
TV Edwards LLP