City West Housing Trust v Massey; Manchester & District Housing Association v Roberts
[2016] EWCA Civ 704; [2017] 1 WLR 129; [2016] HLR 31; [2016] 2 P&CR 14, 7 July 2016
Suspended possession orders upheld by Court of Appeal even though the tenants’ evidence had not been truthful. Guidance as to what is ‘cogent evidence’
The defendants were assured tenants of the claimant landlords. Both of their properties had been used for the cultivation of cannabis. Both occupiers claimed that they had not been responsible for the commission of the criminal offence. Mr Roberts had, however, been convicted of permitting the cultivation of cannabis while Ms Massey had escaped prosecution (albeit the person responsible for growing the cannabis had been convicted). Both landlords sought possession.
In Massey, a district judge decided that Ms Massey’s claim that she was unaware that a third party was growing cannabis in her property was untrue. However, the district judge suspended the possession order on conditions that she comply with her terms of tenancy, the person responsible for growing cannabis in her flat be prohibited from returning to the flat and allowing the housing trust the right to inspect the property on less than two hours’ notice. The district judge was satisfied that there was a sound basis for believing that such an order would prevent further instances of criminal behaviour.
In Roberts, the district judge found that Mr Roberts had not given a full and truthful account of how cannabis had come to be grown in the property. The district judge also suspended the possession order because he was satisfied that the tenant would not grow cannabis in his flat again because he was satisfied that Mr Roberts had expressed genuine remorse, understood what he had done was wrong, had pleaded guilty to the offence at an early stage and there had been no other breaches of tenancy.
Both landlords appealed to a circuit judge. The appeal in Massey was dismissed and allowed in Roberts. City West Housing Trust and Roberts appealed to the Court of Appeal.
The Court of Appeal dismissed City West’s appeal and allowed Mr Roberts’ appeal. It noted that the making of suspended possession orders is necessarily a fact-sensitive exercise and concluded that the district judges were entitled to make the orders which they made and so the orders were not open to review. Arden LJ referred to ‘the generous ambit of discretion which is allowed’ under Housing Act 1988 s9 [19]. In both cases, the tenants were not found to be primarily responsible for the cannabis cultivation and there was no evidence of previous offences or breaches. Both tenants expressed a willingness to comply with the terms of the tenancy in future. The Court of Appeal did give ‘some limited guidance’ for the future, although it made it clear ‘that a judge’s failure to follow this guidance would not of itself be a ground on which an appellate court could set the exercise by a judge of their discretion.’ Arden LJ noted that the leading authority as to the exercise of discretion is
Sandwell MBC v Hensley (
Sandwell MBC v Hensley) where the Court of Appeal overturned a suspended possession order because there was there was no basis on which the assistant recorder could have been satisfied that the tenant would observe the terms of his tenancy in future. In that case, Gage LJ, referring to criminal convictions at the premises, said ‘The more serious the offence, the more serious the breach. Convictions of several offences will obviously be even more serious. In such circumstances, it seems to me that the court should only suspend the order if there is cogent evidence which demonstrates … a sound basis for the hope that the previous conduct will cease’[25]. Referring to ‘cogent’ evidence for the hope that the previous conduct will cease, Arden LJ said:
‘Cogent’ evidence that there is a sound basis for hope that the previous conduct will cease is not simply evidence which shows there is some basis on which it could be said that the tenant will observe the terms of his tenancy in future. The adjective used by Gage LJ was not ‘credible’ but ‘cogent’. To be ‘cogent’, the evidence must be more than simply credible: it must be persuasive. There has to be evidence which persuades the court that there is a sound basis for the hope that the previous conduct will cease or not recur.
This Court has repeatedly made it clear that when making an SPO the court has to make a judgment about the future and that the focus at this stage is on the future and not the past. … By stating the requirement to be ‘cogent’ evidence that there is a sound basis for hope for the future, the standard is pitched at a realistic level. On the one hand, the tenant does not have to give a cast-iron guarantee. On the other hand, a social landlord does not have to accept a tenant who sets out to breach the terms of his tenancy and disables the landlord from providing accommodation in more deserving cases.
There is no principle that the cogent evidence regarding future compliance must stem solely from the tenant himself, without any regard to how others might behave. The likelihood or possibility of action by others, or even the perception that others might take action, may in an appropriate case be evidence which supports an overall assessment that there is a real hope of compliance in the future. For example, a tenant who has mental health problems affecting his ability to comply might be able to show that his compliance in future is made likely because of support received from others. Similarly, the inclusion of an inspection condition in a SPO might provide support for an assessment that the tenant will comply in future, if his fear of being evicted is sufficiently strong and he thinks the risk of inspection is real rather than illusory. [47 to 49]
With regards the resources of the social landlords, judges, when framing conditions of suspended possession orders, have to be careful not to expect social landlords ‘to do more than is reasonable, having regard to all the circumstances’. ‘[S]ocial landlords may be expected in some circumstances to be ready to take an active role, as an ordinary incident of checking on their housing stock’ [50]. Similarly, the police may be expected to have a general interest in keeping an eye on what goes on in their area. It will be a matter of evaluation for the district judge whether the prospect of inspection in fact, or the perception of a risk of inspection, is sufficient to support an overall assessment that there is cogent evidence which provides real hope that the terms of the tenancy agreement will be properly respected in future. Dishonest evidence from a tenant does not prevent the court from finding cogent grounds, but ‘even a person who genuinely wants to comply with his tenancy agreement in the future may give false evidence and make up a false story because he thinks that the truth is unlikely to be plausible or acceptable’[51]. However, [t]enants should realise that if they lie in their evidence to the court they run the risk that the court will find that their evidence is not to be trusted on other matters and that the court will not accept assurances from them for the future. Giving false evidence is a very serious matter and it may have very serious consequences for the tenant’[52]. The court reiterated that an application for a suspension involves not just the exercise of discretion but also the making of findings of fact on the basis of which the discretion is to be exercised.