Out of the Blue

Scott Greenwood looks at the ramifications for social landlords' use of suspended possession orders after the Court of Appeal's decision in Cardiff County Council v Lee.

Over the past couple of weeks you will probably have read this case (Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034) and if you have not, I would suggest you do so as it has significant implications in our sector for our clients.  This is one of those cases which comes out of the blue every now and then which totally catches us lawyers unaware and causes shockwaves throughout the court system and process.  I do not intend for the purposes of this article to go into the fine detail of the case other than to merely point out that as a result of the Court of Appeal’s decision, it is necessary in accordance with CPR 82 to apply for leave to enforce a suspended possession order by way of a warrant for possession.  This applies to all cases where an SPO has been granted, not just cases involving anti-social behaviour.

The need to do this, which is a must rather than an option, is having a significant impact on the business of social landlords, particularly in dealing with enforcement of suspended possession orders based on rent arrears.  Before this judgment and in accordance with leading previous court authorities (in particular, Southwark LBC v  St Brice), the application for a warrant was seen to be an administrative act whereby all that was required was the completion of a form N325.  This judgment at the Court of Appeal has turned that on its head, requiring in accordance with CPR 83.2 the need to make a formal application (on a form N244) to the court to obtain the Judge’s permission to enforce the SPO by way of warrant and then apply for the warrant using form N325.

So why the change?  It is understood that this rule has been in for a couple of years, at least since 2014 as a result of a committee rule amendment, and it has just never been argued until this Court of Appeal authority.  This has caused a great deal of confusion, not just for social landlords but also for the courts and as I understand, some courts when it first came in before considering the full authority, were of the view that it was confined only to ASB cases, not rent cases which clearly it is not.   You are probably aware of the previous history in relation to PPO’s and the previous tolerated trespasser regime and the need before the amendments by the Housing and Regeneration Act for the courts to monitor the warrant process, it is possible that has been part of the reason why the rule came in, as well as the comments around the time of the St Brice case, we do not know.  Regardless of the reason, it is a rule, it is a must do not an option and we have to follow it until possibly the rule is changed by committee.

As to the impact, the following may well be applicable:

1.    There is a resource issue for social landlords in having to complete additional paperwork which involves officer time and consideration.
2.    During this process of having to apply for leave, it is likely in these types of cases that the arrears will continue to arise and these arrears are often already at a significant level.
3.    There is then the added cost of the court fee (in addition to the warrant fee) for the application which seems to vary from court to court depending on which local court you are applying to for permission.  Arguably those costs can be passed onto the resident by way of an order, but in the majority of cases it is unlikely the defendant has the financial means to pay these.
4.    The rules seem to make it clear that such application can be made without notice, although it is at the court’s discretion and I understand that some courts are happy to accept it without notice and deal with it, but other courts may not which will create an inconsistency in the approach and will no doubt cause a further resource strain on a court process that is already under significant strain as a result of court closures and changes.
5.    This will also involve additional judicial time in considering these papers which is onerous on a judiciary that is already pushed in relation to the volume of cases that they have to hear and process, again due to court closures and cutbacks.
6.    It is not entirely clear whether when making an application, you can include with the application a form N325 so that in the event of leave being granted, that form can then be processed and the warrant issued.

Over the last couple of weeks I have read various articles on this and various proposals for tactical ways of dealing with this.  One such tactic proposed has been to apply for a provision in the SPO dispensing with this requirement, although that is at the discretion of the Judge, I suspect, reading the strict letter of the rule, that that is not an option open to the judiciary, although we will have to see as to how that develops.  

This additional resource burden has come at a difficult time in the sector.  As you are probably aware, the sector has had financial constraints as a result of the rent reduction introduced which covers the next 4 years, further benefit caps which have been reduced by recent legislation and also the bedroom tax  which all have an affect on benefits, payment of rent and a social landlords’ income stream.  To have an additional hurdle put in place which adds to resources and costs is not ideal.

One can appreciate that the rule has been put in so as to be a check and balance by the judiciary in relation to such applications, but that said; there is an opportunity for a defendant to apply to stay and suspend a warrant once notified of the bailiff’s appointment.  Some may say that is not ideal, but none the less there is such check and balance that has been in place for many years.

Perhaps there is a need for a court protocol or guidance contained in a practice direction so that there is consistency with the approach to these applications across the board.  There has been some talk that there may be a rule change, but interestingly, if you note the judgment, the Judge’s comments were more that the warrant form should be amended rather than the rules amended.  We will have to see how this develops.  

Scott Greenwood is a solicitor at Radian. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..