The London Borough of Barking and Dagenham v Bakare
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Hughes |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWCA Civ 750 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2012 |
| Docket Number | Case No: B5/2011/1802 |
[2012] EWCA Civ 750
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ROMFORD COUNTY COURT
(HIS HONOUR JUDGE PLATT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Chancellor of the High Court
Lord Justice Hughes
and
Lord Justice McFarlane
Case No: B5/2011/1802
Mr Edward Fitzpatrick (instructed by Sternberg Reed) appeared on behalf of the Appellant.
Ms Annette Cafferkey (instructed by the London Borough of Barking and Dagenham Legal Practice) appeared on behalf of the Respondent.
This is an appeal from the decision of HHJ Platt sitting in the Romford County Court in June 2011 in the course of possession proceedings with respect to a property, 65 Althorne Way in Dagenham in Essex. The tenant of the property, Olufemi Olayinka Bakare, had been the tenant since December 1998 and, for most if not all of the material time, had lived there with her daughter, with her elder son, David, and with her younger son, Stephen, who was at the time of the hearing before the judge, and indeed now, 19 years of age.
There was a history going back over a number of years of rent arrears and that was dealt with initially before a district judge in November 2005 when a suspended possession order was made. Provision was provided for the payment of arrears but the possession order was suspended on the basis that it would not be enforced so long as the defendant paid rent arrears at the rate of £10 per week. The defendant was in default and it was accepted before the judge that by 16 December 2005 her tenancy of the property had formally ended and thereafter at that time as a matter of law, she became a "tolerated trespasser in the premises". She continued to pay rent and at times there were further, albeit unsuccessful, attempts to enforce the warrant for possession against her.
The statute law was changed and as a result from 20 May 2009 Schedule 11 of the Housing and Regeneration Act 2008 provided that she once again became a tenant under the terms of that statute on the same terms as the original tenancy.
The live applications before the Romford County Court that were dealt with in 2011 by HHJ Platt were twofold. First of all final possession orders were sought under Schedule 2 of the Housing Act both under ground 1 in relation to rent arrears and ground 2 in relation to the behaviour of both of the two sons. Secondly antisocial behaviour orders ("ASBOs") were sought in relation to the two boys under the Crime and Disorder Act 1998.
The proceedings were part of a group of applications made by the local housing authority against a number of tenants and individuals who occupied this particular block of flats. HHJ Platt heard all the matters together over the course of some five days in February 2011 and in respect to this tenant and her sons he circulated a specific judgment to the parties on 14 March 2011. That judgment was formally handed down on 4 April.
In summary, and insofar as is relevant to this appeal, HHJ Platt found as follows in this first judgment. In relation to rent arrears he did not deal with the matter because a hearing in relation to that issue had already been adjourned and fixed for June 2011. He focussed upon the complaints in relation to the boys' behaviour and he did so from the date of the new statutory tenancy on 20 May 2009. So far as ground 2 is concerned (I will set out the terms of grounds 1 and 2 in a moment) only ground 2(a) applies. Having heard what must have been a wealth of evidence he did not find any of the allegations of adverse behaviour proved against the older boy, David, but in relation to the younger boy, Stephen, the judge at paragraph 39 to paragraph 56 made a number of findings. In short they were these: that Stephen had been connected with class B drugs over a number of years and this was well established. Secondly, he found that Stephen was connected with a quantity of firearms and ammunition found hidden in or near the block in the autumn of 2009. Close to the date of the hearing before the judge and well after the time when Stephen will have been aware of the applications that were being made there were two events of behaviour of a criminal nature by Stephen in January 2011 when he was involved with the use of cannabis in the vicinity of the block.
At paragraph 52 of this judgment the judge summarised his conclusions thus:
"From all these facts as found by me I conclude to the civil standard that over a long period of time from about the late summer of 2009 up to the present Stephen has regularly been smoking cannabis and in possession of cannabis in the communal parts of Althorne Way and in the vicinity of the property. He is also linked to the presence of offensive weapons including a hand gun and Class B drugs in the communal areas of the block. That behaviour has caused and was likely to cause significant annoyance, nuisance and distress to other residents."
Finally and not specifically related to Stephen the judge found that a quantity of class A drugs had been found in the flat itself in November 2009.
The judge in particular held that Section 85A of the Act required him to consider the effect of the behaviour upon the other tenants and those visiting the block and he held that these matters will have been of real and continuing concern to those individuals, not least because it had served as a magnet for the criminal activities of others. The judge went on to hold that if these were straightforward possession proceedings he would have "no hesitation" in concluding that these findings were sufficiently serious to justify making a possession order on the basis that the tenant as a matter of law was responsible for the acts of the son who was living with her. However, as the housing authority had chosen to style their application within the adjourned possession proceedings in relation to rent arrears, the application for possession which arose from Stephen's behaviour had to be adjourned to be dealt together with the rent proceedings at the June hearing. The judge did however impose an ASBO upon Stephen, the terms of which prohibited him from possession of cannabis anywhere in the vicinity of the block and from loitering in the common parts of the block with one or more of three named individuals.
In June the matter came back before the judge for the conclusion of the various applications. It was accepted by the parties and by the judge that the court had jurisdiction to proceed with the application for a possession under ground 2 within the already established possession proceedings in relation to the rent arrears. The authority for that was Manchester City Council v Finn [2003] HLR 41.
In addition to the earlier findings of fact, three more allegations were found proved by the judge. They were these: that on 22 February 2011, that is, only some eleven days after the original oral hearing before the judge and prior to the giving of judgment, Stephen had been found with cannabis and eleven wraps of white powder which we are told later on conviction were established to be class A drugs and which the judge for the purposes of his judgment assumed were class A drugs, on a motorbike within 250 metres of the block. The flat was searched on that occasion and two sets of weighing scales were found and a quantity of cash; secondly, on 22 March 2011 Stephen was arrested, having been in a car in the vicinity of the block. Cannabis was found on his person and the car contained more bags of cannabis. It is of note that that date was less than a week after the original draft judgment will have been sent out to Stephen and his mother; thirdly, on 4 April Stephen was arrested for being in breach of the ASBO, having been found in company with one or other of the named youths very close to the block.
Counsel for the tenant conceded before HHJ Platt that these findings were of themselves clearly of sufficient gravity to justify making a possession order. The sole question for the judge was to determine whether or not that possession order should be suspended.
I turn now briefly to look at the legal context. I have made reference to grounds 1 and 2 of Schedule 2 of the Housing Act 1985:
"Ground 1
Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed.
Ground 2
The tenant or a person residing in or visiting the dwelling-house—
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of—
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii) an indictable offence committed in, or in the locality of, the dwelling-house."
Section 84(2)(a) of the Act requires that no order may be made on any of grounds 1 to 8 of Schedule 2 unless the court thinks it is reasonable to make the order. It is settled law that the court must take account of all of the relevant circumstances at the date of the hearing.
When considering an order under ground 2 specific provision is made in Section 85A which requires the court to consider in particular:
(a) the effect that the nuisance and annoyance has had on persons other than the person against whom the order is sought;
(b) any continuing effect the nuisance or annoyance is likely to have on such persons;
(c) the effect the...
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