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Varying a possession order from discretionary to mandatory ground


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 As ever with County Court appeals, not binding precedent, but may be persuasive.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.



Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Mr Michael Freeman

    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

    • Giles Peaker

      Well no. It is completely irrelevant here.

  2. Mr Michael Freeman

    OK – sorry to trouble you, but can you direct me to it, please?


  3. Mr Michael Freeman

    Brilliant – tvmuch.


  4. Michael Freeman

    PS – I went straight to the case and have only just read your “full disclosure”: congratulations and well done.



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