Real hope? Suspended possession orders after City West Housing Trust v Massey

“To live without hope is to cease to live,” wrote Dostoevsky. A Court of Appeal case in July 2016 demonstrates that discussions about hope aren’t just for the philosophy lecture hall, but have a place in the nitty-gritty legal issues of whether a possession order be outright or suspended.

The case

The case of City West Housing Trust v Massey [2016] EWCA Civ 704 dealt with tenants who had cultivated cannabis in their social housing properties. At trial, the tenants denied any knowledge or involvement with this drug use, yet the court disbelieved, in whole or in part, their evidence. However, the court granted suspended possession orders (SPOs), stating that there was evidence to provide “real hope” that in the future the tenants would begin to respect the terms of their tenancy. As part of the SPO the county court had also ordered that the landlord should make unannounced inspections at the property. This was upheld by the Court of Appeal.

Real hope for change

The court’s granting of an SPO rather than an outright possession order seems very merciful. The tenants’ version of events was not believed by the court, and the court decided that despite the tenants’ past unlawful conduct, there was yet a real hope that behaviour would improve. The Court of Appeal stated that when making an SPO the court is making a judgment not about the past but about the future: “the focus at this stage is on the future and not the past….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.” The Court gave extensive guidance on SPO terms, including that, “even though lies have been told, it may be appropriate for a district judge nonetheless to make the assessment that cogent evidence exists which provides a real hope that the terms of the tenancy agreement will be respected in future.”

Relational thinking

It is encouraging to see the court in this case taking a pragmatic, rehabilitative approach to the difficult realities for tenants renting in the social housing sector. But with the possibility that City West Housing Trust brings a further appeal to the Supreme Court – particularly about the onus on the landlord to be proactive, in inspecting the property, – the question becomes sharper: what responsibilities do social housing landlords have in promoting and facilitating their tenants’ welfare?

And surely it is here where the spirit of the law rather than the letter must have its say; this judgment simply underlines the fact that a social landlord must take seriously its responsibilities to play its part in helping (often vulnerable) tenants abide by their responsibilities. Yes there is sometimes serious conduct which should lead to outright possession, but even where tenants have made mistakes there should be at least the desire to look for the hope of change. The relationship between landlord and tenant is not simply a black and white contractual matter; it should be one marked by dialogue, understanding and mutual co-operation – even when that is costly for the landlord. Such a focus on relationships isn’t new but it is profound; economist Dr Michael Schluter of the Relationships Foundation in Cambridge, for instance, stresses that relational thinking must shape policy and practice and that right relationships are the key to flourishing in society – and not least in issues of social housing.

Real life

This case has drawn attention to what in practice has happened for years: a landlord taking proactive steps to help the tenant keep his or her home, with all the support that may be required. Last year for example we acted for a vulnerable young woman tenant who was a victim of gang violence. She was forced by gang members to use her rented housing association flat to grow cannabis, against her wishes. The parties adopted a hopeful conciliatory approach, avoiding unnecessary litigation to trial: a clinical psychiatrist was instructed, whose diagnosis confirmed her low IQ and inability to resist the threats of the gang; and the views of our client’s support worker were sought out and respectfully listened to by the landlord.

In our client’s case, these non-combative negotiations with the landlord led to the parties agreeing to an SPO which itself included (in the preamble) that the housing officer meet with our client once a quarter to review the tenancy. This was accompanied by the landlord allowing our client to apply for a management transfer forthwith; she wanted – and needed – to get away from the estate gang culture as soon as possible. This was a successful outcome for our client who otherwise would have faced the prospect of an outright possession.

Response?

So this judgment serves as a wake-up call for housing associations to see afresh the potential – and mutual obligations – for landlord-tenant relationships. Rather than landlord and tenant needing to litigate when there is disagreement or misbehaviour, steps can be taken together to look for practical solutions. When there’s relational and restorative principles in place governing the dynamic between tenants and landlord, then there’s every reason for real hope.