Ground breaking housing judgment from the Court of Appeal

Sir James Munby calls for review of the guardian

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 was 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

Both cases related to possession proceedings being taken by the landlord as a result of the tenants being found with cannabis farms at the property and were led by our expert housing solicitor Amy Tagoe. Counsel instructed on behalf of both tenants was Gary Lewis of Cobden House Chambers.

In the case of Roberts, the tenant stated that he had been threatened by a local gang who installed the cannabis farm at the property.  Stephensons secured a suspended possession order for three years by the County Court. The High Court allowed the landlord’s appeal and varied the possession order to an outright possession order. Stephensons’ appealed that decision on behalf of the tenant.

In the case of Massey, the tenant stated that an ex-partner had installed the cannabis farm at the property without her consent or knowledge.  Stephensons secured a three year suspended possession order at the County Court. The landlord’s appeal was dismissed by the High Court, upholding the suspended possession order. The landlord appealed that decision.

In what will now be a leading decision in anti-social behaviour cases the Court of Appeal unanimously found in favour of both tenants.  The landlord’s appeal was dismissed in the Massey case. The appeal in the Roberts case was allowed. This means that the suspended possession orders made by the courts at first instance were upheld.

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 the 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.