The power to suspend an order for possession

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The recent Court of Appeal ruling in Birmingham City Council v Ashton shows that it is not always appropriate to order the suspension of a possession order.

The Council sought possession against a secure tenant (A) in his early 50s who had caused a nuisance. He had a history of problems with alcohol and cannabis.

A notice seeking possession was served relying on four incidents which had lead to convictions for affray/possession of an offensive weapon. He was also excluded from his flat by a community order and was receiving psychiatric support.

A's neighbour and her children remained very frightened and extremely concerned that they might encounter A whilst going about their daily lives. A showed remorse.

Medical evidence was that A would remain stable if he refrained from alcohol or cannabis and there was a 20-30% chance of further incidents if he returned. The judge decided to suspend a possession order.

The Council appealed on the basis that the judge had not given sufficient regard to the effect of A's past, present and future conduct.

The appeal court held that whilst there were factors in A's favour: he had clearly made efforts to get a grip on his life; he was taking medication and receiving support, and his condition was stable but there was still a significant risk of future harmful events.

A 20-30% risk could not, objectively, be said to be low. There was a past history by A of lapses in sobriety which had not been considered, and it was clear that if A relapsed, further highly unpleasant incidents were very likely to recur.

At the time of the hearing there was a significant risk for the future which the judge did not properly address and it was upon A to show that anti-social behaviour would not recur, or would be unlikely to do so.

The case was remitted to the County Court.

What this means for social landlords

An improvement in behaviour will often mean that a court will suspend a possession order however, the court must take into consideration all relevant factors, including looking to the future and whether anti social behaviour is likely to recur.