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Supreme Court dismisses application to appeal anti-social behaviour test

View profile for Amy Tagoe
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Implications of Supreme Court decision on professional disciplinary hearings

The Supreme Court refuses permission for a further appeal in the case of City West Housing Trust v Lindsay Massey [2016] EWCA Civ 704.

On the 2nd November the Supreme Court (Lord Neuberger, Lord Carnwath and Lord Hodge) dismissed the appellant -landlord’s application for permission to appeal the decision of the Court of Appeal

In doing so they considered the Notice of Objections and written submissions filed on behalf of the respondent by Stephensons Solicitors and drafted by Gary Lewis of Cobden House Chambers.

On the 7th July 2016 the Court of Appeal handed down judgment in the cases of City West Housing Trust v Lindsey Massey and Vincent Roberts v Manchester and District Housing Association [2016] EWCA Civ 704.

The appeals considered the test currently used in anti-social behaviour cases which was set out in Sandwell v Hensley [2007] EWCA Civ 1425. The test to be applied by the court was whether there was “cogent evidence which demonstrates a sound basis for hope that the previous conduct would cease”

The two issues which the Court of Appeal were to consider in relation to the test were:

1.  When there is a finding of dishonesty against the tenant can the test still be met 

2.  If the tenant is relying on external factors/assistances can the test still be met.

The Court of Appeal unanimously found in favour of both tenants. 

The Court of Appeal also provided important guidance on the test to be applied in anti-social behaviour cases which will be of great assistance to housing practitioners and to the courts

The main points to be taken from the judgement are as follows:

1. To be cogent evidence “the evidence must be more than simply credible: it must be persuasive” but not necessarily a “cast-iron guarantee” of future behaviour.

2.  There is no principle that the cogent evidence regarding future compliance must stem solely from the tenant himself.  The actions of others may be evidence which supports “an overall assessment that there is real hope for compliance in the future”

3.  A tenant who has lied in his evidence can still succeed in having an SPO made in his favour.  The District Judge is to make the assessment that there is cogent evidence that the terms of the tenancy will be respected in future.  However tenants should realise that if they lie in court they run the risk that the court will not trust them on other matters and may not accept assurances from them for the future.

4.  The trial judge should determine which of the relevant evidence of the tenant he accepts and which he rejects and the tenant should normally give evidence in court so that the court can assess his credibility

5.  The decision to make an SPO “not only involves a multi-factorial assessment.  It also calls for a broad commonsensical assessment”

6.  While trial judges are required to give adequate reasons an appellate court will be slow to hold that a trial judge who referred to a point at one stage in his judgment but not when he came to exercise his discretion had failed to give adequate reasons for the exercise of his discretion.

7.  There is not a strict checklist of factors to be applied in these situations.

The Supreme Court’s dismissal of the landlord’s application to appeal means that the Court of Appeal decision will stand and will continue to provide important guidance on the test in Anti-Social Behaviour cases.

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