| Housing
— Secure tenancy — Claim for possession — Local authority seeking
order against single mother — Abusive behaviour by son resulting in anti-social
behaviour order and secure accommodation placement — Judge suspending possession
order against mother — Whether proper exercise of discretion — Housing
Act 1985, s 85A, as inserted by Anti-Social
Behaviour Act 2003, s 16(1)
Manchester
City Council v Higgins [2005]
EWCA Civ 1423
CA: Ward and Gage LJJ: 24 November 2005
Atrocious and intimidating behaviour, making life intolerable for neighbours,
by the tenant's 13-year old son who was subjected to an ASBO, a secure accommodation
placement and a supervision programme, justified making an immediate possession
order against the tenant and it was not open to the judge to suspend it.
The Court of Appeal so held when allowing an appeal by Manchester City Council
from Mr Recorder Main QC who, in May 2005, suspended on terms a possession order
against the tenant, Lorraine Higgins, and substituting an order for possession
in 28 days.
S 85A of the Housing
Act 1985, inserted by s 16 of the Ant-Social Behaviour Act 2003, applied only
in nuisance cases and went to issues of reasonableness, requiring consideration
of the effect of nuisance or annoyance on persons other than the person against
whom possession was sought.
WARD LJ said that the tenant, a single mother
of three children, had severe personality problems and lacked parenting skills.
It was a depressing story of appalling misbehaviour by her 13-year old son: a
neighbour, a widow caring for three children each with disabilities, being the
victim of his violent character. An ASBO was granted in November 2004 followed
by a secure unit order until November 2005 and intensive supervision. The judge
held it reasonable to make a possession order but suspended its operation for
18 months on terms and gave permission to the tenant to appeal saying that because
of the change of emphasis in the context of anti-social behaviour in the 2003
legislation, guidance was needed from the appeal court. Clearly an appellant had
a high hurdle to overcome successfully to appeal an exercise of discretion: it
was unfettered save that it had to be judicially exercised. All the circumstances
had to be borne in mind. If the misconduct of a member of a tenant's family was
so serious and persistent to justify an ASBO that would be strong, but not conclusive,
evidence that the tenant had forfeited his entitlement to retain possession. The
judge erred in retaining confidence in the boy's reformation: it was wishful thinking.
Having committed destructive acts of vandalism within days of the ASBO, his future
seemed bleak. The behaviour of the mother herself and the boy was intolerable.
Absent any expression of remorse or any well-founded expectation of improvement,
it was disproportionate not to make an immediate order for possession. The tenant
had forfeited her right to respect for her home and the recorder had erred in
his decision.
GAGE LJ gave a concurring judgment.
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