Bristol City Council v Hassan and another; Bristol City Council v Glastonbury
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 23 May 2006 |
| Neutral Citation | [2006] EWCA Civ 656 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2006 |
| Docket Number | Case No: B2/2006/0853 AND B2/2006/0854 |
[2006] EWCA Civ 656
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
District Judge Exton
District Judge Frenkel
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke,
Vice-President, Court of Appeal (Civil Division)
Lord Justice Dyson and
Lord Justice Jacob
Case No: B2/2006/0853 AND B2/2006/0854
Jan Luba QC and Robert Latham (instructed by South West Law) for the Appellants
Kelvin Rutledge and Genevieve Screeche-Powell (instructed by Bristol City Council Legal Services) for the Respondent
Lord Justice Brooke: This is the judgment of the court.
These two appeals from orders made by District Judge Exton and District Judge Frenkel in the Bristol County Court in January and February of this year have been transferred for hearing to this court because they raise issues which are at present perplexing housing law practitioners and the judiciary in county courts up and down the country.
The problem arises in this way. When a court decides that a local authority landlord has established that statutory grounds for making a possession order exist and that it is reasonable to make such an order, the standard form currently in use in the county courts has the effect of terminating the tenant's secure tenancy on the date set out on the face of the order. If the court also directs that the possession order is not to be enforced so long as the tenant complies with requirements set out in the order, the tenant enjoys the status of a "tolerated trespasser", and not of a secure tenant, so long as he remains in possession of the premises after the date for giving possession has passed. This is the effect of the recent decision of this court in Harlow District Council v Hall [2006] EWCA Civ 156.
The standard form to which we have referred is Form N28. We have set out its salient provisions in Appendix One to this judgment. It is not obligatory for the court to use this form in any given case. Section 74A of the County Courts Act 1984 empowered the Lord Chancellor to make or to approve directions as to the practice and procedure of county courts, and CPR Part 4 and its practice direction deal with court forms in a very general way. In the present context Form N28 appears in the table that heads para 3.1 of that practice direction under the general description of a form "required by CPR 1–75". CPR 4, for its part, provides:
"(1) The forms set out in a Practice Direction shall be used in the cases to which they apply.
(2) A form may be varied by the court or a party if the variation is required by the circumstances of a particular case."
Although the current version of Form N28 was introduced in 2001 at the same time as CPR Part 55 (which provides generally for practice and procedure in connection with possession proceedings) came into effect, there is no reference to Form N28 (or indeed to any other prescribed form) in CPR Part 55. At best, therefore, it should be treated as the form to be used when a court wishes to make a possession order that is postponed to a fixed date but to suspend its execution so long as certain requirements are fulfilled.
This, however, is not the only order a court may make if it decides that a local authority landlord has established that statutory grounds for making a possession order exist and that it is reasonable to make such an order. The relevant statutory provisions are to be found in section 82(2) and 85 of the Housing Act 1985, the terms of which are set out in Appendix Two to this judgment. By the combined effect of those two sections, the tenant's secure tenancy will end on the date on which the tenant is to give up possession in pursuance of the possession order (s 82(2)) , and the court on making the possession order has the power to postpone the date of possession for such period or periods as it thinks fit (s 85(2) (b)) . On such a postponement the court must impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent unless it considers that one of the criteria identified in s 85(3) (a) is satisfied, and it may also impose such other conditions as it thinks fit (s 85(3) (b)) . By s 85(4) , if the conditions are complied with the court may, if it thinks fit, discharge or rescind the order for possession.
The facts of the two cases with which we are concerned are fairly typical. Mr Hassan and Mr Abdillahi were the Bristol City Council's ("the council's") joint secure tenants of premises in Barton Hill, Bristol. Mr Abdillahi went off to Denmark, and because he was responsible for paying half the rent, arrears accumulated following his departure to the extent that they amounted to £1,628.61 at the date of the hearing on 9 th January 2006. The full current net rent was now being paid by the housing benefit authorities, but a weekly payment of £4.77 was due from Mr Hassan in respect of a heating charge. The council sought a suspended possession order on terms that Mr Hassan, who was in receipt of benefits, continued to pay this sum and also instalments of £2.85 towards the arrears, this being the standard sum for a tenant on benefits. There was no dispute that a possession order could be made, or that it was other than reasonable to make an order. What had to be resolved at the hearing was the form of the order the court should make.
Ms Glastonbury was the council's secure tenant of an 11 th floor flat in Dove Street, Bristol. Her problems arose after payment of housing benefit ceased on 11 th April 2005. At that time her account was £60 in credit. Because she received income support she was entitled to housing benefit, but she failed to provide information required by the council's verification procedures, and this led to her housing benefit being stopped. It was reinstated on 5 th September 2005, and the possession proceedings were originally adjourned twice to see whether payments of housing benefit could be backdated to cover the gap between April and September 2005. Eventually the housing benefit authorities decided not to take this course. At the time of the hearing before District Judge Frenkel on 13 th February 2006 the rent arrears were £885.13. The housing benefit authorities were paying the full current rent, and since 10 th January 2006 the Department of Work and Pensions ("DWP") had been deducting £2.85 per week at source from Ms Glastonbury's other benefits and paying them directly to the council four weeks in arrears. The council's final stance at the hearing was that it asked the court to make a possession order suspended on terms that Ms Glastonbury paid £2.85 per week towards the arrears.
The solicitor advocate who appeared for both these tenants did not oppose the granting of a possession order on the proposed conditions. He contended, however, that no date for possession should be fixed. He suggested that an order should be made in these terms:
1. The Claimant is entitled to possession described in the Claim Form.
2. The Defendant do deliver to the Claimant possession of the premises on a date to be fixed on application by the Claimant.
3. The Claimant shall not be entitled to apply for an Order fixing the date for possession and termination of the Defendant's tenancy for so long as the Defendant:
pays the current rent as it falls due in accordance with the terms of the tenancy agreement and in addition discharges arrears amounting to £ as at the date of this Order by monthly instalments of £.
4. Any application to fix the date on which the Defendant is to give up possession shall be made to the District Judge in private on 7 days notice to the Defendant.
5. There be no Order as to costs.
In the first of these cases District Judge Exton said that her colleagues in Bristol, and other colleagues nationwide, took the view that a court could not make an order in these terms, because they were required to fix a date for possession on the face of their order. In the second case District Judge Frenkel, after hearing argument, said that he was going to make an N28 order, and that he was not going to change the usual practice of the court unless there was a successful appeal. A particular feature of the second case was that it was apparently accepted that the flat was unsuitable for one of the defendant's sons, and that it would be problematic whether a mutual exchange of tenancies with another council tenant could be achieved if the defendant was reduced to the status of a "tolerated trespasser".
The first issue we have to decide is whether the district judges' belief that a date for possession had to appear on the face of their orders was soundly based. If it was not, then we have to go on to consider whether variant forms of order which we were shown could lawfully be made. We were told that following the decision in Harlow DC v Hall on 28 th February 2006 the Department for Constitutional Affairs appointed a working party, which includes two experienced judges, to advise on the alternative form(s) of order template the courts should adopt in those cases in which the judge making a possession order against a secure tenant did not wish the tenancy to terminate so long as the conditions set out in the order were fulfilled. The working party is understandably anxious to consider our judgment in this case. In the meantime the courts have been advised to delete paragraph 5 and to substitute a new paragraph 1 in Form N28 (for which see Appendix One) :
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...of a landlord-tenant relationship. A range of such objections was quoted by this court, with apparent approval, in Bristol CC v Hassan [2006] 1 WLR 2582 [34]. To address those problems, and to avoid the secure tenant losing that status on the making of a suspended possession order, this co......
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Knowsley Housing Trust v White ; Porter v Shepherds Bush Housing Association
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