We've been waiting for the Court of Appeal decision in the combined matters of Hajan v. Brent London Borough Council, Kerr v. Poplar Housing [2024] EWCA Civ 1260, handed down on 23 October.

Background

Mr Hajan had a secure tenancy with Brent LBC and Ms Kerr an assured tenancy with Poplar Housing. Both cases concerned adding in anti-social behaviour which was a ‘serious offence’ (condition one of the mandatory ASB ground). 

The court considered whether variation could take place and the process a landlord should follow to seek a variation of a suspended possession order originally brought on discretionary grounds to an outright order on mandatory grounds.   

Brent LBC and Poplar Housing wanted to rely on the ASB mandatory ground for secure and assured tenancies respectively. The text of the assured/secure grounds themselves are identical. 

Court considerations

The court considered Section 85 of the Housing Act 1985 and Section 9 of the Housing Act 1988 in detail and held both of which have substantially the same effect regarding secure and assured tenancies respectively. 

The argument was heard, including over:

• Whether the drafting of Section 9 prohibited this being relied on to vary an order. The court held that it was the intention of parliament that Section 9 provides for an order to be varied, under the older Court of Appeal case of Manchester v Finn.
• Whether Section 9 provided the power to postpone and not to substitute an outright order for one granted on suspended terms. The court considered that both Sheffield CC v Hopkins and Manchester CC v Finn confirm that Section 9 confers this power.

In relation to Section 9(6), the court was specifically asked to consider whether it prevents the court from ‘exercising any of the powers under Section 9 where the court is satisfied that the landlord is entitled to possession on a mandatory ground.’ In other words, was the court prevented from converting a suspended possession order to outright under Section 9(6)?

Section 9(6) of the 1988 Act states:

'This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house—

(a)on any of the grounds in Part I of Schedule 2 to this Act; (which is where all the mandatory grounds are) or

(b)by virtue of subsection (1) or subsection (4) of section 21 below.'

Court of Appeal findings

The Court of Appeal examined the construction of the original order for possession which had been suspended on terms, and found that:

1. Paragraph 1 of the order required possession of the property and therefore was not an order under Section 9 but an order under Section 7 (which sets out when the court may or shall grant an order for possession); and
2. The remaining paragraphs of the original order, and arguably part of paragraph 1 fixing the date for possession, were held to have been granted under Section 9 of the Act. The powers under Section 9 were uninhibited and remained available to vary, suspend or postpone until the order for possession was executed. 

The court held that once the order for possession is granted on discretionary grounds, the court’s power to vary under Section 9 becomes available. It is difficult to envisage circumstances where the construction of the suspended possession order would differ from the original order granted against Ms Kerr, so it is very unlikely a different outcome would be reached. 

In any event, the court clarified that the effect of Section 9(6) is that where a possession order is made on a mandatory ground the court has no power to stay, suspend or vary the order. 

Conclusion

The case confirms the procedure to follow to vary a possession order made on discretionary grounds to one made on mandatory grounds, is to serve a mandatory ground NSP and then make an application to vary. 

For more information

If you would like advice regarding varying a possession order from discretionary to mandatory, please contact me.