Manchester City Council v Higgins

South Gorton must be one of the less desirable residential areas of Manchester. When not loitering idly on street corners, young vandals damage cars, kick down fences, smash windows and are generally foul mouthed and abusive to all and sundry. The respondent to this appeal, Lorraine Higgins, says she and her family have suffered such damage and such abuse. That may well be true but what the case is about - and it is a deeply depressing story − is the appalling misbehaviour of her 12 year old son, James. A near neighbour, Mrs Marion Copeland and her family, have been the victims of his malicious damage, bullying and abuse. The appellant, the Manchester City Council, brought proceedings against the respondent on grounds of the breach of the obligations of her tenancy that she and those living with her should not harass her neighbours and of their causing a nuisance or annoyance to them. On 20th May 2005 Mr Recorder Main Q.C. found the grounds established, held it was reasonable to make a possession order but suspended its operation for 18 months on terms, in summary, she complied with her tenancy agreement and took steps to improve her parenting skills. The council now appeal with leave of the Recorder.

The respondent is a single mother of three children, Emma who will be 16 years old in a month's time, James who turned 13 in August and Roisin who is 2 years old. Roisin was born with two holes in her heart. She has needed and continues to need regular medical attention and it is easy to understand that the state of this little girl's health has contributed to the mother's stress. She saw her doctor in September 2004 complaining of feeling depressed which may have been a problem that had troubled her for some years. There is a letter from the general practitioner who felt that "a lot of her difficulties related to social problems and the fact that she has a rather non−assertive personality". He prescribed anti−depressants for her but the Family Intervention and Support Services reported that she might not have taken that medication.

She lives at 43 Hexham Road, Gorton South in Manchester as the tenant of the local authority whose tenancy agreement made on 19th June 1995 includes terms that:−

Mrs Copeland is a widow who has lived at 4 Lowther Avenue, in South Gorton, since about 1999. Her home is adjacent to the respondent's. She has three sons, each sadly suffering mental disability. Timothy, 17 years old, has the mental age of an 11 year old; Dean, aged 15, has the mental age of a 9 year old and Kenneth, aged 8, has the mental age of a 4 year old.

James, and to a much lesser extent, Emma have caused Mrs Copeland much distress through their swearing at her and her children, bullying the children and damaging her property. It is unnecessary to catalogue each and every incident: it is enough to give the flavour. Thus in January 2004, James smashed three windows in her property and all the windows of her motorcar. In March James assaulted Dean. In April James and a friend threw mud through Mrs Copeland's open front door, some of it striking Kenneth. Again in April James and another boy were throwing beer bottles into her back garden at 1 a.m. On 9th May her windows were again damaged and Dean was again assaulted.

As a result on 13th May 2004 the Housing Services Manager of the local authority had to write to complain and to require the respondent to attend "a formal neighbourhood nuisance interview". Following that interview the Local Services Manager wrote to the respondent in these terms:−

The letters had no effect. On 14th May Emma and James were abusive and threw stones at Mrs Copeland. Later they picked on Timothy and when Mrs Copeland intervened, they again threw stones at her. The police were called. Mrs Copeland spoke to the respondent to tell her that the police were coming and that she would report the matter to the housing authorities. The respondent's response was to say:−

James had not confined his misbehaviour to Mrs Copeland. Police evidence before the court showed that he had come to the attention of the police on many occasions involving many others. The police referred the family to the Youth Support Team and there were meetings with the Family Intervention and Support Services, the Education Welfare Services, the Youth Offending Team and the Housing Department, all trying to develop and implement a care plan for the whole family unit. Part of that which was in place by about the summer of 2004 was support from SureStart, a nationwide government initiative to improve the health and wellbeing of parents and children of 5 and under.

If the respondent needed to be reminded of the seriousness of her position, the local authority applied for an injunction against her which was granted without notice to her on 24th August returnable on 8th September. On that date the respondent represented by her solicitor gave undertakings in which she promised whether by herself or by allowing, inciting or encouraging any other person not to engage in conduct capable of causing nuisance or annoyance to a person with a right to reside in the neighbourhood of her home or harass, use abusive or insulting or threatening behaviour or use or threaten violence against any such person or enter or attempt to enter Mrs Copeland's property. Despite that promise two girls called at Mrs Copeland's home that very evening telling her that James was "going to get" Timothy.

By the end of September Manchester City Council considered it necessary to take action. They applied to the Magistrates Court for an Anti−Social Behaviour Order ("an ASBO") against James. This was granted on 5th November restraining him from acting in an anti−social manner, using abusive, insulting, offensive, threatening or intimidating language or behaviour in a public place, throwing stones or other missiles or approaching Mrs Copeland and other named persons. This order was to continue until his 16th birthday.

It had no effect. On 14th December at about 4.15 a.m. Mrs Copeland was woken by James "smashing up" her two motorcars, a mobility car and her own car. He threw what looked like part of a gatepost through the back window of her car, he broke the wing mirrors, let down the tyres and scratched his initials "JN" onto the bonnet of one of the cars. She said it cost £1,730 to repair the damage on the mobility car and her Citroen was said to be a complete write−off. James was arrested and placed in a bail hostel for young persons in Bury.

On 2nd February 2005 the Council issued its claim for possession under grounds 1 and 2 of Schedule 2 of the Housing Act 1985 as amended.

Whilst on remand James assaulted a fellow 11 year old youth at the same hostel. He appeared before the Manchester Youth Court on 23rd February 2005. He was placed under supervision for two years for the offences of criminal damage and the assault. As part of that supervision order he was placed on an intensive supervision and surveillance programme. It did not prevent further harassment. In April there were several incidents where James was abusive to Mrs Copeland and her children. On 21st April he thumped Dean on the back. On 30th April he threw stones at her car. Other acts of damage to property in the vicinity were reported to the police.

The Council called Mrs Copeland, Ms Giannaris their Community Support Officer, Miss Parkinson, their Anti−social Behaviour Case Manager and P.C. Hibbert responsible for the youth offending in the subdivision and anti−social behaviour. The respondent was the sole witness called on her behalf. The recorder gave judgment ex tempore the following day, 20th May 2005. There is an approved transcript of his judgment from which we have worked. To assist the parties consider their position he generously volunteered to provide a typed transcript from notes he had made. That is also before us. It differs in some respects from the approved transcript but I do not believe the differences are material.

The first question he addressed was whether he was satisfied, on sound evidence, that James had been engaging in anti−social behaviour and concluded that he had absolutely no doubt that he was. He said:−

He then turned to consider whether a possession order was appropriate and if so whether it should be immediate or suspended reminding himself that in that context "personal fault is a highly relevant factor".

He referred to the respondent's problematic family circumstances, Roisin's medical condition and her own difficulties. There was evidence of a real need for long−term support for her. He held:−

The final question he posed was this:−

He was satisfied that without James the defendant Emma and Roisin would be able to live quietly and sensibly without interference of their neighbours for the foreseeable future but as for James:−

His conclusion was this:−

Consequently the recorder found it appropriate and proportionate to suspend the order for 18 months but subject to conditions which were recited in the order as follows:−

He gave permission to appeal saying:−

He put it slightly differently in his own typed note saying:−

In the written reasons judges are required to give in allowing or refusing permission to appeal he said:−

The local authority appeal against the suspending of the possession order. There is no cross appeal by Miss Higgins against the findings of her children's anti−social behaviour and the consequent breaches of the terms of her tenancy, nor does she appeal against the finding that it was reasonable to make the possession order. Strictly speaking, therefore, the appeal has a limited focus.

This is a secure tenancy within Part IV of the Housing Act 1985. Consequently the tenant enjoys security of tenure. The tenancy cannot be brought to an end by the landlord except by obtaining an order of the court for possession of the dwelling−house. Pursuant to section 84 of the Act the court shall not make an order for possession of a dwelling−house let under a secure tenancy except on one or more of the grounds set out in Schedule 2. The grounds for possession set out in that schedule include as Ground 1 the fact that an obligation of the tenancy has been broken or not performed. Ground 2 applies where the tenant or a person residing in or visiting the dwelling−house:−

Establishing the ground is, therefore, the first task of the judge. It is invariably a matter of fact and the findings are difficult to appeal.

The second question for the court arises out of section 84(2) of the Act which provides that:−

It will be seen, therefore, first, that section 85A applies only in nuisance and annoyance cases and secondly, it goes to the issue of reasonableness. As this court held in Moat Housing Group v Harris and Hartless [2005] EWCA Civ; [2005]

In all cases the court still has to look at the reasonableness or otherwise of making the order. This is a wide value judgment for the court to make. The interests of the parties are engaged but so are the interests of the public at large. The interest of the tenant will include all reasons which bear on why his personal circumstances are such that it would still be reasonable for him to continue in occupation. The interests of the landlord lie in his protecting those affected by the nuisance and annoyance and in the management of his estate, this being a particular concern for social landlords such as a local authority housing department which has the difficult task of allocating increasingly precious housing stock. As Lord Greene M.R. said in Cumming v Danson [1942] 2 All E.R. 653, 655:−

To appeal a finding of reasonableness is not easy. This court will not interfere unless the judge has erred in principle; taken into account some matter which he should not have taken into account or left out of account something which he should have taken into account; or that the decision is plainly wrong in the sense not that an appellate judge would have taken a different decision had it been his or hers to take but that the decision under appeal falls outside the generous ambit within which there is room for reasonable disagreement.

The third and final task for the trial judge is to decide whether or not to exercise the extended discretion given to the court by section 85 of the Act which provides as follows:−

An appellant again has a high hurdle to overcome successfully to appeal an exercise of such discretion. The Court of Appeal's approach will be similar to that set out above.

The recorder seeks the guidance of this court to assist the County Court in exercising its discretion. I fear I cannot be as helpful as he would wish simply because each case must depend upon its own facts and the weight to be given to various factors will vary depending on the circumstances. Without intending this to be an all−embracing guide, I would venture these few thoughts.

First, the discretion is quite unfettered save that, of course, it must be judicially exercised. It follows that all the circumstances of the case are material to be borne in mind. In one case the facts giving rise to the making of an ASBO may be so serious that both the making a possession order and the refusal to suspend it will be self evident. In another case the making of the ASBO may have served its purpose of restraining future misbehaviour so that although past conduct might make it reasonable to order possession yet suspension might still be possible.

Secondly, if the misconduct by the tenant or even by a member of the household were serious and persistent enough to justify an ASBO then that will be strong but not conclusive evidence that the tenant will have forfeited his entitlement to retain possession. As Robert Walker L.J. observed in West Kent Housing Association Ltd. v Davies (1998) 31 H.L.R. 415, 425 the judge must not underestimate:−

Thirdly, since the court will already have found that it is reasonable to make a possession order, the question of whether or not to suspend its execution must be very much a question of the future. As Kay L.J. held in Canterbury CC v Lowe :−

Ultimately, given the Article 8 ECHR respect for the tenant's home, the question is whether an immediate possession order is necessary in order to meet the need to protect the rights and freedoms of others - the neighbours - and is proportionate to it.

Mrs Zoe Thompson for the council submits the judge erred in these ways:−

Mr John Hobson for the tenant valiantly submits that the court should not interfere with the exercise of discretion; the judge had evidence to find that there was hope of improvement and that with support the ASBO would be effective; that the degree of personal responsibility was material and that the neighbours' interests were taken into account.

In my judgment the Recorder was wrong to find it very difficult to give up on any chance that James would improve. He found there was that hope of some sort of improvement "with intensive and appropriate and targeted guidance and supervision". We were uncertain what supervision was in place for James after his release from the secure unit and invited counsel to inform of the present position. Their agreed researches reveal that pursuant to sections100(3) and 103 of the Powers of Criminal Courts (Sentencing) Act 2000 the period of supervision continues after release and ends when the term of the order ends, in this case 22nd February 2006. Thus for the time being he is subject to the Intensive Supervision and Surveillance Programme. He is undergoing reparation work, and is receiving education in one−to−one sessions. He is subject to 7.00pm to 7.00am curfew, compliance being monitored by way of electronic tagging. There was scant material before the Recorder to give him confidence in James' reformation. If history were predictive of the future then the future would seem bleak. James had shown himself to be unrepentantly anti−social. The warnings given to his mother in May and June had no effect on her or on him. The injunction brought no end to the wrongdoing. The very day on which the mother gave her undertakings James sent his emissaries to threaten Timothy Copeland. The most appallingly destructive acts of vandalism occurred within 9 days of the making of the ASBO. The supervision order and its intensive help from supervision and surveillance did not stop James assaulting Dean Copeland and throwing stones at Mrs Copeland's car. I could readily understand it if the recorder had despaired of any improvement in the fortunes of the tenant family if they were to be made homeless and must have wished to prevent an already appalling future for this family, and James in particular, being made even worse by their eviction but I regret that his hope for improvement was wishful thinking not supported by the evidence.

The mere fact that the ASBO remained in force until James attained the age of 16 and that the police had powers to deal with future breaches would give the neighbours no sufficient protection for the reasons I have explained. He cocked a snook at it within days of its imposition: indeed he demonstrated his contempt for the order by his rampage of destruction on the two motor cars on 14th December. The making of an ASBO could in some cases be the harbinger of better times but the mere fact of its having been made and remaining in place serves in this case more to emphasise the seriousness of the misbehaviour and therefore the need for immediate protection from it than the hope without more that it will cause the offending to cease.

That the mother was not solely to blame may be the case in most instances of anti−social behaviour so that does not by itself justify suspension. Here the recorder had found that "the defendant did have a significant personal responsibility" with emphasis added by me. She was herself without remorse and at all times totally indifferent to the effect her children's behaviour was having on her neighbours.

The Recorder did, it is true, say that "I must take into account the needs of the neighbours". It is, however, difficult to see what weight if any he gave to the effect the behaviour was having on them. He accepted Mrs Copeland's evidence. She said in her written statements, affirmed on oath as correct:−

In my judgment the behaviour of the defendant herself and her children, especially James, was quite intolerable. Absent any expression of remorse or any well founded expectation of improvement it was disproportionate not to make an immediate possession order. The defendant had forfeited her right to respect for her home. In my judgment the Recorder erred. He should have made an order for possession in 28 days. I will therefore allow the appeal and vary his order accordingly.

I agree that this appeal must be allowed. I only add a few sentences of my own because we are reversing an order made by the Recorder in the exercise of his discretion. In his judgment the Recorder referred to a number of the relevant authorities. It is clear that he had in mind the principles upon which his discretion should be exercised. In those circumstances the argument that this Court should not interfere with his decision is a powerful one. Nevertheless I have concluded that his decision to suspend the possession order was wrong. I have arrived at this conclusion for two reasons.

First, in my view, on his findings as to James' past conduct and the respondent's apparent indifference or inability to recognise that her son, James, had done anything seriously wrong, the Recorder took a too sanguine view of the future prospects of James behaving himself when released from secure accommodation. The ASBO made on 5 November 2004 was demonstrably unsuccessful in controlling James. He continued to vandalise Mrs Copeland's property. He was made the subject or a 2 year supervision order. On the same date his mother was placed on a 3 month Parenting Order. As part of his 2 year supervision order James was placed on an intensive supervision and surveillance programme (ISSP). Further acts of anti−social behaviour by James followed and on 12 May 2005 the ISSP order was revoked by the youth court and replaced by a 12 month Detention and Training Order on the ground that James had breached the supervision order. In short, nothing up to that date had succeeded in controlling James. At the hearing of this appeal we were informed by counsel that that he has now been released back into the community from the secure unit where he was being held. Information sent to the court since the hearing shows that he is subject to supervision under ISSP conditions until the 12 month period of the Detention and Training Order expires.

In his judgment the Recorder described the respondent's reaction to James' conduct as follows:

In addition, there is within the court papers an initial report on the respondent's progress under the Parenting Order which was not encouraging.

In these circumstances, in my judgment, the Recorder was wrong to regard the continuance of the ASBO as having any real prospect of controlling James after his release from secure accommodation and to think that the respondent, his mother, would either make any real effort to control him, or, if she did, she would have any prospect of success in doing so. I see no reason to change this conclusion despite the most recent information expressed in a short report from Clive Wood, an ISSP support officer, dated 2 November 2005.

Secondly, in my judgment, there is force in the submission that the Recorder failed to give sufficient weight to the position of neighbours and in particular Mrs Copeland. It is clear that Mrs Copeland has had to put up with a very great deal as a result of James' activities. She is a widow living with her three sons whose ages range from 18 to 9. All of her sons suffer intellectual deficits: the greatest being that of her eldest son. The Recorder found that the locality is a bad area for street crime. Property and cars are vandalised. One can readily understand that Mrs Copeland for good reason may well have been very fearful of James' return to the area.

The Recorder, in his judgment, makes reference to the position of neighbours. However, in carrying out the balancing exercise which he needed to conduct when deciding whether or not to suspend the order, there appears to be greater emphasis on the future hope that James' behaviour might improve than on the needs of neighbours. This is expressed by the Recorder in the sentence "I find it very difficult to give up on any chance of James, at the age of 12œ×" No doubt, the needs of neighbours must have played some part in the Recorder's decision but, in my judgment, the Recorder cannot have given to them the weight which they merited.

For those reasons, unhesitatingly, I conclude that the Recorder erred in the exercise of his discretion, and I agree that his order should be varied by deleting that part of it which suspends the order for possession.

So far as the Recorder's desire for this court to give guidance to assist judges exercising their discretion in cases such as this, like Ward LJ I find it difficult to give any meaningful assistance. The circumstances of each case will, no doubt, vary considerably. The exercise of the court's discretion will be tailored to the facts of each individual case. It is an unfettered discretion to be exercised judicially. For this reason I decline to give any but the most general guidance. As to section 85 A(2), I agree with what Ward LJ has said in paragraph 29 of his judgment (a draft of which I have read).

It is, of course, obvious that sections 84 and 85 involve the court in a two−stage process. The first stage is for the court to decide whether it is reasonable to make an order for possession. Only if the court is satisfied that it is reasonable to make an order for possession is it necessary for the court to consider the second stage involving the consideration of whether to suspend the order. The factors to be taken into account at each stage may very well be the same, or at least overlap. However, at the second stage there will be a greater focus on the future rather than the past. In other words, when deciding whether or not to suspend the order the court will amongst other things be concerned to devise the best method of protecting the needs of neighbours against the re−occurrence of the anti−social behaviour which gave rise to the order for possession being made. In some cases, of which in my opinion this is one, an ASBO will provide no real protection for neighbours. In other cases it may well provide adequate protection. Each case must be determined on its own facts. Beyond this, in my judgment there is no need to give further guidance, nor is it appropriate to do so.