Raglan Housing Association Ltd. v Fairclough

This is an appeal against an order of His Honour Judge Burford Q.C. granting the respondent, Raglan Housing Association (“the Housing Association”), immediate possession of a dwelling known as 5 Banks Cottages, Studland, Dorset. At the conclusion of the argument we dismissed the appeal and indicated that we would give our reasons at a later date. The following are my reasons for dismissing the appeal.

5 Banks Cottages is one of a group of dwellings in the village of Studland owned by the Housing Association. The appellant, Mr. Fairclough, lived for some time at 1 Banks Cottages with his mother and sister. His mother held an assured tenancy of the property. After her death his sister succeeded to the tenancy and when she left to go to university, it passed to him.

On 6^th May 2004 Mr. Fairclough was arrested on suspicion of offences under the Protection of Children Act 1978, but he was released on bail and was not charged with any offence until 20^th January 2006. Meanwhile, on 24^th January 2005 he had transferred his tenancy to 5 Banks Cottages, which is situated close to 1 Banks Cottages from which it is separated by a narrow alleyway.

On 17^th March 2006 Mr. Fairclough pleaded guilty to fifteen counts of making indecent photographs of children by downloading them on his computer from the internet and a further four counts of possessing indecent photographs of children. For those offences, all of which had been committed between 1^st May 2001 and 6^th May 2004 while he was still living at 1 Banks Cottages, he was sentenced on 20^th April 2006 at Bournemouth Crown Court to an extended sentence of four years’ imprisonment comprising a custodial period of 12 months and an extended licence period of 3 years.

On 21^st April 2006 one of the local papers carried a report of Mr. Fairclough’s sentence and as a result his convictions became known to the Housing Association. On 31^st July it served a notice on him seeking possession of 5 Banks Cottages and shortly afterwards it commenced these proceedings.

The claim was made primarily under section 7 of the Housing Act 1988 and Ground 14 of schedule 2 to that Act as amended by section 148 of the Housing Act 1996. These provide as follows:

“7— Orders for Possession

(1)

The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act; . . . . . . .

(2)

The following provisions of this section shall have effect, subject to section 8 below, in relation to proceedings for the recovery of possession of a dwelling-house let on an assured tenancy;

. . . . . . . . . .

(4)

If the court is satisfied that any of the grounds in Part II of Schedule 2 to this Act is established, then, . . . . . . . the court may make an order for possession if it considers it reasonable to do so.

Schedule 2

Part II

. . . . . . . . . . . . . . .

Ground 14

The tenant or a person residing in or visiting the dwelling-house—

(a)

has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or. . . . . . .

(b)

has been convicted of—

(i)

using the dwelling-house or allowing it to be used for immoral or illegal purposes, or

(ii)

an indictable offence committed in, or in the locality of, the dwelling-house.”

The Housing Association relied in addition on Ground 12, also within Part II of schedule 2, which provides as follows:

“Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.”

Clause 3.4 of the tenancy agreement in this case provided that the tenant was to keep the garden of the cottage in a neat and tidy condition.

It is important to note that neither of these grounds, if established, does any more than give the court the power to grant an order for possession if it considers it reasonable to do so. Whether it does consider it reasonable to grant possession in any particular instance will depend on all the circumstances of the case.

The claim came before Judge Burford Q.C. in Southampton County Court on 26^th January 2007. He held that both Ground 12 and Ground 14 had been established so that the court had jurisdiction to make an order for possession. In reaching that conclusion he rejected a submission by Mr. Egleton on behalf of Mr. Fairclough that Ground 14(b)(ii) relates only to convictions for offences committed during the currency of the tenancy agreement and does not extend to convictions for offences committed before the tenancy began. The judge also held that it was reasonable in the circumstances of this case to make an order for possession and did so. His decision was based on the nature and gravity of the offences committed by Mr. Fairclough and their repercussions; they owed nothing to his failure to keep the garden tidy. In my view it is clear that if the Housing Association had succeeded in establishing ground 12 alone, possession would not have been granted.

The judge himself refused permission to appeal, but on an application to this court permission was granted in respect of the first four grounds of appeal, all of which relate to the interpretation of Ground 14(b)(ii). Permission to appeal was refused in respect of all other grounds. As a result we are only concerned with the judge’s decision that the case comes within Ground 14.

It was beyond dispute that Mr. Fairclough had been convicted of indictable offences at a time when he was the tenant of 5 Banks Cottages and it was accepted that those offences had been committed in the locality of that dwelling, but the acts which constituted the offences were not committed at a time when he was tenant of that particular cottage. Mr. Egleton submitted that, properly understood, Ground 14(b)(ii) applies only to offences committed by the tenant during the period of his tenancy of the dwelling in question and does not apply if the offences were committed before the tenancy commenced, whenever the conviction occurred. He submitted that that conclusion was to be drawn from the structure of the Housing Act as a whole and Ground 14 in particular and was reinforced by the fact that ground 14(b)(i) (using the dwelling house or allowing it to be used for immoral or illegal purposes) requires the tenant to be in occupation of the premises at the time when the conduct in question occurred. In support of that submission he relied on the decision in Schneiders & Sons Ltd v Abrahams [1925] 1 K.B. 301.

Schneiders v Abrahams concerned a claim by a landlord for possession of a dwelling house let on a weekly tenancy. The statutory provision on which the case turned was section 5(1) of the Rent Restrictions Act 1920 (as amended by section 4 of the Rent and Mortgage Interest Restrictions Act 1923), which provided as follows:

“No order or judgment for the recovery of possession of any dwelling-house to which this Act applies . . . . . shall be made or given unless

. . . . .

(b)

the tenant or any person residing or lodging with him . . . . . . has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose . . . . . .”

The tenant in that case had been convicted of handling stolen goods by receiving them at the premises. It was submitted on his behalf that the section could be given a sensible, if restricted, meaning if it were interpreted as applying only to convictions for offences which by definition involved the use of premises, such as using them or permitting them to be used for unlawful gaming contrary to section 4 of the Gaming Houses Act 1854. A more common example nowadays might be knowingly permitting premises to be used for supplying controlled drugs contrary to section 8 of the Misuse of Drugs Act 1971.

The court rejected that submission. Bankes L.J. said at page 306:

“And inasmuch as a strictly technical construction of s. 4 of the Act of 1923 would exclude so many offences which would seem naturally to fall within the purview of the section, and because such a construction would deprive the words “or immoral” of all force or effect, therefore I reject the argument that the section includes only offences in which user of the premises is an essential element. But I think it is necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence.”

Scrutton L.J. said at page 309:

“The crime of receiving goods knowing them to have been stolen is a good instance of the difficulty raised by s. 4. There is no crime, and consequently there can be no conviction, of using premises for receiving stolen goods, and yet premises may be used for the purpose of receiving stolen goods. The rest of the wording of s. 4 suggests that such a user is within the contemplation of the section. Giving the case the best consideration I can, I come to the conclusion that the conviction need not be for using the premises for one or another immoral or illegal purpose, and that it is enough if there is a conviction of a crime which has been committed on the premises and for the purpose of committing which the premises have been used; but that it is not enough that the tenant has been convicted of a crime with which the premises have nothing to do beyond merely being the scene of its commission.”

Mr. Egleton relied on the final sentence of that passage from the judgment of Banks L.J. as establishing that the requirements of the statute could only be satisfied if the tenant was in occupation of the premises at the time the offence was committed. He might also have relied on the final sentence of that passage from the judgment of Scrutton L.J. I think it is fair to say that the court in that case did assume that the offence had to be committed while the tenant was in occupation under the tenancy agreement, but that was not in issue and the court therefore did not have to consider whether the section would be satisfied in a case where the tenant was convicted of an offence which involved the use of the premises for an immoral or illegal purpose prior to the commencement of his tenancy – e.g. as a place from which to deal in stolen goods. I am unable, therefore, to accept that the decision is binding authority for the proposition for which Mr. Egleton cited it.

The argument that Ground 14(b)(i) is concerned only with the use that the tenant has made of the premises during the currency of the his agreement rests largely on the combination of the words “the tenant” and “has been convicted of using the dwelling house”, but that is to ignore the full width of the opening words which extend the reach of paragraph (b)(i) to persons residing in or visiting the premises. As a result it contemplates the possibility that persons other than the tenant may be convicted of using the property for immoral or illegal purposes. Accordingly, whereas it might be said that the natural meaning of the word “use” in the case of the tenant suggests use while in occupation as tenant under the current agreement, the extension of this paragraph to those who are not tenants shows that that it cannot be limited in that way. Perhaps that is not surprising. Unfortunately, given that tenancies of this kind are capable of being transferred from one family member to another, it is not beyond the bounds of possibility that a person who has become the tenant might be convicted of using the premises for an immoral or illegal purpose at a time before he became the tenant. I am unable to accept, therefore, that paragraph (b)(i) is limited in the way suggested by Mr. Egleton. The judge did hold, however, that paragraph (b) is not satisfied unless the conviction itself (though not the facts on which it was based) occurred during the currency of the tenancy. I am inclined to think that he was right, but it is unnecessary to decide that question for the purposes of this appeal.

However, even if paragraph 14(b)(i) is to be construed as Mr. Egleton submitted, I do not think that it takes his case much farther. His argument was that it would be anomalous if paragraph (b)(i) applied only to acts committed during the currency of the tenancy agreement, but paragraph (b)(ii) covered acts committed before, as well as during, the agreement. I am unable to accept that. Paragraph (b)(i) is directed to one particular type of behaviour likely to cause distress and annoyance to neighbours, namely, the manner in which the premises themselves are used. Paragraph (b)(ii) is much broader, being directed to behaviour in the locality in general. Even if paragraph (b)(i) is to be construed as limited to convictions arising out of the use of the premises during the current tenancy agreement, for which it might be said the tenant as tenant can fairly be held responsible, there is no reason why paragraph (b)(ii) should be construed in the same way because the tenant can properly be held responsible for the way in which he has behaved in the locality both before he became a tenant and afterwards. To put it bluntly, why should a tenant who was the mystery burglar responsible for thefts from houses in the area before he obtained a tenancy not be at risk of eviction when his identity is discovered and conviction follows?

In my view it is helpful to begin by trying to identify the mischief at which Ground 14 is aimed. I do not think there is much doubt about that: it is the presence within the locality of persons who have demonstrated by their previous behaviour that they are likely to annoy, intimidate or otherwise make themselves a serious nuisance to other residents and thereby adversely affect their quality of life. Mr. Egleton submitted that the ills that Parliament principally had in mind were drug dealing and perhaps drug misuse generally, but other anti-social conduct is clearly covered by both paragraph (a) and paragraph (b). Those who commit other kinds of indictable offences, such as burglary, offences of violence and certain kinds of driving offences, to mention but three well-known types of anti-social behaviour, may well fall into that category. Once it is accepted that those who have committed indictable offences in the neighbourhood where they live are to be regarded as liable to behave in a manner that is annoying or intimidating to their neighbours in future (as paragraph (b)(ii) assumes), one can see that there is no reason to think that Parliament intended to restrict that paragraph to offences committed during the currency of the tenancy. A tenant who is convicted of supplying illegal drugs or of burgling his neighbours’ houses poses no less of a continuing threat if the offences were committed before he became a tenant than he would if they had been committed afterwards. It should be remembered that Ground 14 merely contains a precondition (or as the judge put it a ‘hurdle’) to the exercise of the court’s power to grant possession. The court is not entitled to exercise that power unless it is satisfied that it is reasonable to do so and in making that decision it must take into account the effect that the tenant’s behaviour has already had on other people in the locality, any continuing effect which is likely to follow from it and the effect that any repetition of the same behaviour would be likely to have.

Having regard to these matters, I can see no reason, either in the language of paragraph 14 or in the underlying policy, to think that Parliament intended to limit the scope of Ground 14 in the manner suggested by Mr. Egleton. He sought to persuade us, however, that clear evidence of such an intention can be found in various statements made during the Committee stage of the Bill in the House of Commons.

In Pepper v Hart [1993] A.C. 594 the House of Lords identified three conditions which must be satisfied before recourse to Parliamentary materials is justified for the purpose of ascertaining the correct interpretation of a legislative provision: (i) that the provision itself is ambiguous or obscure, or, if read literally, leads to an absurdity; (ii) that the material relied upon consists of one or more statements by a minister or other promoter of the Bill, together, if necessary, with such other Parliamentary material as is necessary to understand those statements and their effect and (iii) that the statements relied upon are clear. The importance of adhering rigorously to these requirements was emphasised by Lord Bingham in R v Secretary of State for Transport, the Environment and the Regions ex p Spath Holme Ltd [2001] 2 AC 349, 391.

In my view this case does not satisfy the first of those requirements because I do not think that paragraph 14(b)(ii) is ambiguous or that, if read literally, it leads to absurdity. Indeed, for the reasons I have already given, I think there are good reasons why Parliament should have intended that paragraph to extend to convictions based on acts committed prior to the commencement of the tenancy. Since all the members of the court were of the same opinion, we did not allow Mr. Egleton to address us on the Parliamentary material and it is therefore inappropriate to say anything further about it.

For the reasons I have given I am satisfied that the judge’s decision was correct.

I agree that this appeal should be dismissed for the reasons given by Lord Justice Moore-Bick.

I, too, adopt the reasons which Lord Justice Moore-Bick has given for our decision to dismiss this appeal. But I should add that, unlike him, I am not persuaded that the judge was probably correct to take the view that paragraph (b) of Ground 14 is not available (under either limb) unless the conviction itself occurred during the currency of the tenancy. The factors which lead to the conclusion that it is unnecessary that the use of the dwelling house for immoral or illegal purposes (in the context of sub-paragraph (i)) should have been use during the currency of the tenancy point, in my view, towards the conclusion that it is also unnecessary that the tenant or person residing in or visiting the dwelling house should have been convicted during the currency of the tenancy. But, as Lord Justice Moore-Bick has observed, it is unnecessary to decide that question for the purposes of this appeal; and I do not do so.