High Court judge orders re-trial of possession claim brought by housing association

A High Court judge has allowed a housing association’s appeal against the dismissal of a claim for possession and ordered the action to be remitted to be retried.

Teign Housing had issued a claim against Richard Lane for possession of a flat in Bovey Tracey, where the defendant has lived with his two pet dogs since August 2016.

The housing association’s main grounds for possession were a breach of a term of the tenancy other than one relating to the payment of rent, and causing nuisance and annoyance.

The particular acts included: (1) removing fixtures and fittings in the kitchen without consent; (2) removing a gas flue without consent; (3) excluding contractors from the flat; (4) installing CCTV without permission so that the cameras covered communal areas and unsettled the other tenants; (5) playing loud music so as to cause nuisance and annoyance; (6) behaving aggressively to neighbours; (7) threatening a member of Teign Housing's staff in a telephone conversation; and (8) leaving an untaxed car blocking access to the communal car park.

The proceedings were defended on the bases that: (1) breaches of the tenancy agreement had not been proved, in part because the chief executive of Teign Housing had given permission for works to be carried out, and Mr Lane had not caused nuisance and annoyance; (2) it would not be reasonable to make an order for possession; and (3) an order for possession would amount to disability discrimination.

A report prepared for the proceedings by a consultant psychiatrist identified that Mr Lane suffered from a paranoid personality disorder, possible adult attention deficit hyperactivity disorder and harmful use of alcohol. The defendant had “a pervasive distrust and suspicion of others and their motives”.

The claim was heard by His Honour Judge Carr at the Torquay and Newton Abbot County Court in June 2017.

On the defendant’s relationship with other tenants and Teign Housing’s employees, HHJ Carr accepted "Mr Lane can present as very aggressive, threatening and intimidating" noting that his desire to record everything made matters stressful and unpleasant for those dealing with him. However, the judge considered that Teign Housing should have de-escalated matters with him.

HHJ Carr dismissed the possession claim, saying that while he had found some limited breaches of the tenancy agreement and the terms implied by statute, the making of a possession order “would not be reasonable, proportionate or fair”.

The judge did not address the Equality Act 2010 but said that in the light of the medical evidence he would have concluded that a possession order would have amounted to disability discrimination.

Teign Housing appealed. The issues raised by the appeal were: (1) whether HHJ Carr should have found that Mr Lane's actions amounted to a breach of the tenancy agreement. It was submitted that the judge's concept of a "relevant breach" had no legal meaning; (2) whether the judge failed to have regard to the prospects of Mr Lane complying with the terms of his tenancy agreement in the future and did not give sufficient weight to the impact of Mr Lane's behaviour on his neighbours when considering the issue of whether to make an order for possession (suspended or otherwise); (3) whether, in circumstances where it was common ground that Mr Lane was disabled, and that there was a link between Mr Lane's disability and conduct, HHJ Carr’s finding that eviction would not be a proportionate means of achieving a legitimate aim did not involve a sufficient focus on the effect of Mr Lane's behaviour on others.

In Teign Housing v Lane [2018] EWHC 40 (QB) Mr Justice Dingemans allowed the appeal and remitted the case to be retried.

He said while the judge had found breaches of the tenancy agreement – in relation to parking of the van, the interference with the gas supply, and the ripping out of the kitchen – he should have found further breaches (so far as the installation of the CCTV, and the dog fouling, were concerned).

Mr Justice Dingemans also said the judge should have made further findings in relation to activities in the back garden, and should have assessed the aggression, threats and intimidation against provisions in the tenancy agreement to decide whether there had been a breach of the agreement or further ground for possession.

The High Court judge said: “In my judgment in circumstances where the Judge has erred by not finding further breaches of the tenancy agreement it is difficult to place weight on his conclusion that it would not have been reasonable or proportionate to make an order for possession. This is because it is apparent that the Judge did not have the opportunity to reflect on other relevant breaches of the tenancy agreement and their effect on other tenants, because he had failed to find those breaches.

“Further it is apparent that further findings of fact relating to the back garden and the aggressive, threatening and intimidating behaviour need to be made. The question therefore is whether, on the material that is before me, I can say that an order for possession ought either to be made or should not be made, compare Aster v Akerman Livingstone at paragraph 62.”

Mr Justice Dingemans said he was satisfied that he could not allow the appeal and make a finding that possession ought to be ordered. “This is because the assessment of whether it is reasonable to order possession is very fact sensitive, and there are important factors militating against the grant of possession in this case, including Mr Lane's mental health condition identified by Dr Bickerton [consultant psychiatrist] and the difficulties which appear to have been caused from the outset about the area to be fenced in for Mr Lane's pet dogs.”

Mr Justice Dingemans said he had considered whether he could say that he should dismiss the appeal because he could be satisfied that any judge hearing the matter again at first instance would not make an order for possession, suspended or otherwise.

“I am satisfied that I should not dismiss the appeal on this basis. This is because Teign Housing might be able to show that, given the breaches of the tenancy agreement which have been established and further breaches of the tenancy agreement which might be established showing grounds 12 and 14 of Part II of schedule 2 have been made out, it was reasonable to order possession and that such an order would not amount to disability discrimination,” the judge said.

He added: “I should note that even if the Judge did conclude that an order for possession should be made there is a real possibility, notwithstanding the medical evidence showing that compliance with some conditions might be difficult, that a judge would conclude that such an order for possession might be suspended on terms such as engagement with mental health services, the use of the garden or the positioning of vans.”