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Possession orders against tenants due to anti-social behaviour caused by a family member

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09/01/2015

In Greenwich LBC v Tuitt [1] Mrs Tuitt was a secure tenant of the local authority. Under the terms of her tenancy agreement, she accepted responsibility for the behaviour of her children while in the locality of the property. It was alleged that her son was involved in anti-social behaviour, in breach of an Acceptable Behaviour Agreement that he had signed, and he was also convicted of an assault which took place on the local housing estate. He subsequently broke the terms of his bail by returning to the estate on at least four occasions and he criminally damaged the door of a property belonging to one of his neighbours.

The authority served a notice seeking possession relying on grounds 1 (rent arrears) and 2 (nuisance/annoyance caused by a person residing at the property) in Schedule 2 to the Housing Act 1985.

Before it will grant an order based on anti-social behaviour, the court must be satisfied that it is reasonable to make the order. In determining reasonableness in respect of anti-social behaviour, the court is obliged by statute to consider, in particular: (a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought; (b) any continuing effect the nuisance or annoyance is likely to have on such persons; and (c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

The judge granted the order and Mrs Tuitt appealed. Before the Court of Appeal, she argued that the judge had failed to properly direct herself in accordance with the Court of Appeal decision in Portsmouth CC v Bryant [2]. In Bryant, the Court had said that the extent of the personal fault of the tenant was relevant to the question of whether or not it was reasonable to grant a possession order and, if so, to suspend it, and that the court should explore other avenues where the tenant was powerless to rectify the anti-social behaviour of a third party.

The Court of Appeal held that, whilst the judge had clearly focused on the allegations of the son’s misconduct, that did not mean that she had ignored Mrs Tuitt’s approach to the problem of her son’s behaviour. The judge had found that Mrs Tuitt had underestimated the effect of her son’s behaviour on others and that her son’s behaviour had resulted in both Mrs Tuitt and her son falling out with their neighbours.

On the question of whether it would be appropriate to suspend the order for possession, the Court ruled that the judge had found that Mrs Tuitt had been unsuccessful in her attempts to deal with her son’s behaviour and had not properly accepted her responsibility for this. She had taken too soft an approach to her son’s misconduct which meant that it was more likely that he would continue his anti-social behaviour.

The appeal was therefore dismissed.

The case highlights the limits of the Bryant decision and clarifies that the courts are prepared to grant an outright possession order under ground 2 of the Housing Act 1985 where the anti-social behaviour in question has been carried out by someone other than the tenant, provided it can be shown that the tenant is in some way partly responsible for that behaviour.

[1] CA, 25 November 2014
[2] (2000) 32 HLR 96

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