What happens when a landlord wants to evict a tenant for anti-social behaviour (ASB) having already obtained an order for possession on the ground of rent arrears?

The landlord will usually ask the court to consider whether or not to suspend the warrant in light of the allegations of ASB, even if the court would be prepared to suspend the warrant in light of the rent arrears.

Such an approach was endorsed in Sheffield City Council v Hopkins [2001] EWCA Civ 1023. The Court of Appeal endorsed a summary approach to resolving any disputes of fact, after which the court could decide whether or not the tenant could keep their home.

But what happens when the tenant is disabled? And what happens when it’s not really the tenant who is responsible for the ASB, but the tenant’s adult son, who is not a party to the proceedings?

This was what HHJ Murdoch had to consider in Midland Heart Limited v Margaret Burns and CA (a protected party by his litigation friend, the Official Solicitor (OS))

The tenant’s son, an incredibly vulnerable and disabled young man lacking litigation capacity was added to the proceedings on the OS’s application, the possibility having been raised by the Court in March. The OS instructed CLP who were able to grant emergency funding the same day. Within days, an application to add CA to the proceedings and to set aside the possession order was made. The reason for setting aside the possession order which had been made against his mother in her absence in 2014 for rent arrears was because of the problems that his mother and himself  would otherwise face in properly advancing a disability discrimination defence in the face of the risk of the loss of their home. CLP were of the view that the convenient way to deal with this was to reset the procedural clock to the first possession hearing and have a properly pleaded case alleging ASB and allowing the occupiers to respond by filing a formal defence.

One of the consequences of raising a disability discrimination defence is to reverse the burden of proof. That is to say that, once an occupier has demonstrated that s/he is disabled and that there are facts from which the court could conclude that eviction is tantamount to unlawful disability discrimination, the landlord has to show that s/he has not unlawfully discriminated against the tenant. Unless the landlord does so, the court cannot give effect to any decision to evict.

In the present case, the Court held that the Sheffield v Hopkins procedure was not the correct way for the court to deal with non-rent arrears related breaches of tenancy arising from disability because of the problems with the reversed burden of proof. It was common ground that the issue of fresh proceedings would not be an abuse of process. The Court found it was not proper to set aside the possession order which had been regularly obtained particularly given that CA would not have a defence to the rent arrears action.

Instead the Court directed that Midland Heart could not rely on Sheffield v Hopkins to secure the defendant’s eviction due to ASB but would need to issue fresh proceedings.

This case is significant. Firstly, it shows a non-tenant occupier can defend possession proceedings as a matter of principle. This is the first time that we know of that someone who is not a party to the tenancy agreement has been added at enforcement stage in these circumstances. Secondly, it underlines the problems with the Hopkins approach. Hopkins was a case that predated the Equality Act 2010, and rights under the European Convention of Human Rights were not determinative in Hopkins either.

Gary Willock, barrister, Garden Court North, instructed by Rose Pritchard of CLP for Ms Burns
Zia Nabi, barrister, Doughty Street Chambers, instructed by Ranjit Bains of CLP for the OS on behalf of CA