The Government has now made available the new prescribed Form 6A which must be used from 1 June 2019 for any Section 21 Notices served for all new tenancies and renewal tenancies starting on or after 1 October 2015.
On 7 July 2016 the Court of Appeal handed down judgement in the conjoined appeals City West Housing Trust v Lindsey Massey; Manchester & District Housing Association v Vincent Roberts  EWCA civ 704
The Facts in Brief
Both cases involved tenants who had breached the terms of their tenancies by permitting the cultivation of cannabis within their properties. In both cases the tenants denied knowledge or responsibility for the cannabis cultivation but were disbelieved in whole or in part by the court. In each case the court nevertheless suspended possession orders on terms of future compliance with tenancy terms. The Suspended Possession Orders (SPOs) also included provision for surprise inspections of the properties by the landlords.
In each case the Landlord appealed the decision to grant a SPO. In City West the appeal was dismissed so the SPO remained in place. In Manchester & District HA (MDHA) the appeal was successful and an outright order granted. Permission was granted for second appeals to the Court of Appeal (by the Landlord in City West and the tenant in MDHA as there was an apparent uncertainty as to the way in which District Judges should exercise their discretion in circumstances where they have found that the tenant’s evidence was untrue in whole or in part and as to whether the court could impose conditions which place responsibility on the Landlord.
City West argued that the SPO should have been set aside on appeal. They submitted that the tenant had failed to show any cogent evidence that they would comply with the terms of their tenancy in future, had failed to show any remorse, had lied to the court and had failed to engage when offered support.
The tenant of MDHA argued that the appeal judge was wrong to find that the trial judge’s decision to suspend the possession order was perverse. They submitted that the question of whether there is cogent evidence of a likelihood of future compliance and the weight to be given to the factors for and against the making of an SPO are matters for the trial judge to determine and an appellate judge should be reluctant to interfere. MDHA objected to the condition that surprise inspections be undertaken, arguing that it was unreasonable to require the housing association to expend its limited resources in such a way. The tenant submitted that supervision by social landlords and the police is inherent in social housing
Outcome and Guidance
The Court of Appeal held that SPOs were appropriate in both cases; allowing the tenant’s appeal in MDHA and dismissing the appeal in City West. In their judgement the Court of Appeal issued guidance on the exercise of discretion when making SPOs:
- When making a SPO the court has to be satisfied that there is a sound basis, supported by cogent evidence, for hope that the tenant will comply with the terms of their tenancy agreement in future. To be ‘cogent’ the evidence must be “more than simply credible: it must be persuasive” (paragraph 47).
- The cogent evidence may relate to how others may behave, it does not necessarily have to stem from the tenant themselves. It could be that outside assistance or input could be involved, such as the provision of appropriate support for a tenant suffering from mental health problems or the inclusion of a condition providing for surprise inspections of the property by the landlord or the police.
- When framing conditions the court has to be careful not to expect a social landlord to do more than is reasonable, having regard to all the circumstances, including the limited resources of a social landlord. Social landlords may in some circumstances, however, be expected to be ready to take an active role, as an ordinary incident of checking on their housing stock.
- Dishonest evidence from a tenant does not necessarily prevent the court from finding that there is cogent evidence to support a hope of future compliance with the tenancy terms and making an SPO on that basis. A tenant should, however, realise that if they lie in their evidence to the court they run the risk that the court will find that their evidence on other matters, such as assurances as to future conduct, cannot be trusted. The tenant should normally give evidence in court; it is then for the trial judge to determine which of the relevant evidence they accept and which they reject.
- It would not be appropriate to provide a finite check-list of matters for a court to consider when exercising their discretion. Cases will vary and it is for the trial judge to assess the cogency of excuses and explanations put forward by tenants. The decision whether to make a SPO calls for a multi-factorial assessment and a broad common-sense approach. A judge making a SPO must set out his/her reasons and provide an adequate explanation in their judgement.
The judgement does not change the current position but does provide useful clarification of what amounts to ‘cogent evidence’ and helpful guidance on the exercise of judicial discretion when making SPOs.
If you have any further queries, please do not hesitate to contact our Property Disputes Team