Circuit judge rejects appeal over variation of suspended order for possession to outright possession order based on mandatory ground

Social landlord Poplar Harca did not need to seek a second possession order against a tenant when an existing one could be varied, His Honour Judge Luba KC has ruled at Central London County Court.

The tenant fell into arrears in 2017 and was ordered to give up possession of her home and repay £2,512.35 in arrears.

However, the judge involved directed the order should not be enforced if she repaid the arrears at £3.75 per week.

This long repayment period meant the order for possession remained valid in the summer of 2020 when one of the tenant's sons committed the offence at the property of possession of an imitation firearm with intent to cause of violence, for which he was jailed for 14 months.

Poplar Harca then decided to recover possession of the property and although it could have issued fresh proceedings for possession it instead applied to the court to convert the suspended possession order from 2017 into an outright possession order in accordance with Manchester City Council v Finn.

District Judge Bell heard the case in February 2022 and granted the variation sought by Poplar Harca.

HHJ Luba said in his judgment (H/T to the Nearly Legal housing law blog): “In essence, the judge decided that she did have jurisdiction to allow an application to vary a possession order which had been made on a discretionary ground to a possession order treated as made on a mandatory ground.”

The appellant’s barrister though argued DJ Bell erred as the court has no jurisdiction to make a possession order on a mandatory ground pursuant to an application under section 9 of the Housing Act 1988.

But HHJ Luba said: “No application was before the judge under section 9 of the Housing Act 1988. As is made plain by the terms of the application notice itself, the application was an application to vary under the jurisdiction given by Manchester City Council v Finn, that is an application to vary under the ‘liberty to apply’ which attends upon any extant possession order, whether expressly stated or not.

“Secondly, the ground of appeal is framed as an attack on jurisdiction but the jurisdiction the judge was invoking was a jurisdiction to vary, not a jurisdiction to do any of the things provided for by section 9 of the Housing Act 1988.”

The appellant’s barrister argued the court could not change the basis on which the possession order was made from the original discretionary ground to a fresh one of a mandatory ground.

HHJ Luba said: “The Court of Appeal in Finn had clearly contemplated an application to vary under the inherent power to apply to the court in relation to an extant possession order…that might well extend to changing what had been a suspended possession order to an outright possession order.

“Why does it not also therefore embrace the possibility of changing what had been an order based on a discretionary ground to an order based on a mandatory ground?”

If Poplar Harca had had to start fresh proceedings there would have been delay and expense and despite already having one possession order “would then be required to run separate possession proceedings with all the concomitant cost and delay in order to obtain what would be a second possession order”.

HHJ Luba concluded: “I consider that the law does not require the issue of fresh proceedings and that the jurisdiction identified in Finn is sufficiently wide to enable the court to make an order of variation of the type made by the judge in this case.”

Mark Smulian