The Power To Suspend A Warrant For Possession
Council Tenancies - Housing Act 1985
Section 85 of the The Housing Act 1985 provides:
(1) Where proceedings are brought for possession of a dwelling-house let under a secure tenancy on any of the grounds set out in Part I or Part III of Schedule 2 ( grounds 1 to 8 and 12 to 16: cases in which the court must be satisfied that it is reasonable to make a possession order), the court may adjourn the proceedings for such period or periods as it thinks fit.
(2) On the making of an order for possession of such a dwelling-house on any of those grounds, or at any time before the execution of the order, the court may—
(a) stay or suspend the execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks fit.
(3) On such an adjournment, stay, suspension or postponement the court—
(a) shall impose conditions with respect to the payment by the tenant of arrears of rent (if any) and rent […] unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, and
(b) may impose such other conditions as it thinks fit.
Assured Tenancies - Housing Act 1988
Section 9 provides:-
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may –
(a) stay or suspend execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks just. ...
Suspension Under The Court Rules
“If at any time it appears to the satisfaction of the court that any party to any proceedings is unable from any cause to pay any sum recovered against him (whether by way of satisfaction of the claim or counterclaim in the proceedings or by way of costs or otherwise), or any instalment of such a sum, the court may, in its discretion, stay any execution issued in the proceedings for such time and on such terms as the court thinks fit, and so from time to time until it appears that the cause of inability has ceased.”
How The Court Will Exercise Its Discretion To Suspend A Warrant For Possession
There is little case law on how the discretion is to be applied and advisors will be familiar with the unofficial quota applied by many judges whereby a certain number of suspensions will be seen as allowable, or a certain level of rent arrears permitted.
Key points for tenants to remember are:
- The burden of proof on an application to suspend is on the tenant: Southwark LBC v St Brice  1 W.L.R. 1537 para 40.
- Where an outright order was made, the power to suspend should be exercised in very limited circumstances: Goldthorpe v Bain  2 QB 455, CA.
- Where the warrant has already been suspended, on a further application the tenant needs to be able to show an ‘unexpected and significant change of circumstances’ of which the court has proper evidence: Taj v Ali (No. 2) (2001) 33 H.L.R. 27, para 12. This is in line with the general principles of issue estoppel and abuse of process.I
In Ealing LBC v Richardson  HLR 13 Mrs Richardson successfully made nine applications to suspend a warrant whilst her arrears increased over nine years from £2,000 to £5,000. The Council sought a re-hearing on the grounds that details of Mrs Richardson’s eight previous applications to suspend the warrant had not been before the District Judge. This argument got short shrift when it was pointed out that the Council had been responsible for preparing a bundle for the hearing before the District Judge.
Challenging Eviction In Cases Of Mandatory Possession
Section 89 Housing Act 1980 provides:
(1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order.
(2) The restrictions in subsection (1) above do not apply if— […]
(c) the court had power to make the order only if it considered it reasonable to make it; or […]
The purpose of this section is to limit the exercise of a court’s common law discretion to postpone possession. The limitation on the common law power in this section applies only to the County Court. Although the section refers to “a court” it has been held that this does not include the High Court: Bain & Co v Church Commissioners (1988) 21 H.L.R. 29, Ch.D; but cf. dicta to the contrary Hackney LBC v Side by Side (Kids) Ltd  EWHC 1813 (QB),  1 W.L.R. 363 and Boyland & Sons v Rand  EWCA Civ 1860,  H.L.R. 24. The limitation does not apply to a court exercising an appellate jurisdiction over the court which made the original order for possession, i.e. the appeal court may stay a warrant for a longer period if necessary to do so pending an appeal: Admiral Taverns (Cygnet) Ltd v Daniel  EWCA Civ 1501;  1 W.L.R. 2192.
Section 89 takes away any real discretion in the court. Save in the cases specified, the court’s power on making a final order limited to 14 days, unless exceptional hardship would be caused, in which case a statutory maximum is imposed of six weeks. See per Lord Brown in Lambeth LBC v Kay  UKHL 10;  2 A.C. 465;  H.L.R. 22 at [203–204] and Hounslow LBC v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby  UKSC 11.
Although no greater period can be secured by subsequent variations, suspensions or stays, there is nothing to prevent adjournments, save the requirements to exercise the discretion to adjourn judicially see Powell et al –.
Application To Discharge The Warrant or Prohibit Enforcement
However, while there is no power to suspend or postpone possession, in cases where to enforce the order for possession would amount to public law illegality, there may be an application to discharge the warrant, or to make such declarations as would prohibit a public body from enforcing the possession order as a matter of public law.
It is well established that the court retains an inherent common law jurisdiction to set aside or discharge the warrant, see for example the oppression / re-entry cases: Barking & Dagenham L.B.C. v Saint (1999) 31 H.L.R. 620 (CA), where the Court of Appeal set aside a warrant on the grounds that the local authority had, by failing to advise the tenant of his right to claim housing benefit, behaved in a way that was “manifestly unfair” (p. 630) or Southwark v Sarfo (2000) 32 HLR 602.
Further, it must be implicit from the prohibition on a court giving effect to an unlawful eviction that there is such a power. See for example Lewisham v Malcolm  1 AC 1399 at  where Lord Neuberger stated that “…where the reason for seeking possession (or, if relevant, the landlord's knowledge), changes during the course of the procedure, it may be that an exercise, which had started off as lawful, could thereby become unlawful under the 1995 Act.” In the context of the express endorsement of the fact that what is now the Equality Act 2010 would provide a defence in mandatory possession cases (see Malcolm at  and [143-144] (disapproving Floyd v S (EHRC Intervening)  1 W.L.R. 1274), and the inclusion of “eviction” in Section 35 of the Equality Act 2010, it must be that a court can stop an eviction and discharge the warrant where to evict someone would be amount to unlawful discrimination.
Public Law And Proportionality At The Warrant Stage
A tenant may raise an Article 8 defence at the enforcement / warrant stage where to do so would not re-litigate a decided issue or otherwise be an abuse of process. The obvious example is where there is a fundamental change in the occupant's personal circumstances after the making of the possession order but before its enforcement: R (JL) v Secretary of State for Defence  EWCA Civ 449;  P.T.S.R. 1014; para 38-45 and Lawal v Circle 33 Housing Trust  EWCA Civ 1514; para 89. In particular, in JL the Court of Appeal found that:
… The starting point is that Article 8 confers a right that respect be had for a person's home, such that an interference with it by a public authority must be both lawful, and a proportionate means of achieving a legitimate end. The court's task is to subject the process of dispossession by the public authority to a proportionality review. That is a process which may typically involve a number of stages, beginning in the present case with a notice to quit, followed by the issue of possession proceedings, the obtaining of judgment after a hearing, and the enforcement of an order for possession by the obtaining and execution of a writ of possession.
In the overwhelming majority of cases the occupant's Article 8 rights will be appropriately and sufficiently respected by the provision at the occupant's request of a proportionality review during the possession proceedings themselves, and usually at the hearing of them. That is because, under English procedure, it is those proceedings, and in particular the hearing of them, which are designed finally to determine (subject only to any appeal) the lawfulness or otherwise of the owner's claim for possession.
The court hearing the possession proceedings is not obliged to conduct a proportionality review of its own motion. It must do so if, but only if, that review is requested by the occupant, by the raising of an Article 8 defence: see the Pinnockcase, at paragraph 61. Thus, in the absence of special circumstances the owner will only be in a position to seek a writ of possession after the occupant's Article 8 rights have been exhausted, either because they have not been prayed in aid during the possession proceedings, or because they have been raised as a defence, but rejected. Generally, an attempt to re-litigate the Article 8 issue at the enforcement stage, or to litigate it for the first time when it could and should have been raised as a defence in the possession proceedings, would have been an abuse of process by the occupant.
But there will be exceptional cases, and the present is a very unusual but powerful example, where the raising of Article 8 rights at the enforcement stage will not be an abuse. The obvious example is where there is a fundamental change in the occupant's personal circumstances after the making of the possession order but before its enforcement. …
I am not deterred from that analysis by Mr Hooper's submissions about the risks of cost, delay, uncertainty and a resort by public authorities to swift and rigid enforcement of possession orders. The courts are familiar with last minute attempts of occupants of residential properties to stay the enforcement of possession orders. County court judges will be well able to discern, on a summary basis, whether some substantial change of circumstances gives rise for the first time to an Article 8 issue which neither was, nor could have been pursued prior to the making of the possession order. Abusive attempts to re-litigate, or litigate Article 8 issues which could and should have been raised during the possession proceedings can be met with the usual sanctions imposed for abuse of process including, where necessary, the making of Civil Restraint Orders. …
It follows that the judge was correct in the wholly exceptional circumstances of the present case, to accede to the appellant's request to conduct a proportionality review of the requested eviction, even though it will be a very rare case where it is appropriate to do so at the enforcement stage.
It is fair to say that the facts of JL and of Lawal were both unusual and it is unlikely to often be the case that there will be a proportionality defence at the warrant stage. However, given the delays often involved in housing cases it is not unheard of. For example, one can imagine a situation where a landlord obtains a possession order against an Introductory Tenant but fails to enforce it for a number of years, perhaps because the arrears are cleared, and then seeks to enforce some years later. In those circumstances a change in the personal circumstances of the tenant may well mean that there is a legitimate Article 8 argument, in addition to any public law arguments.
Counterclaims At The Warrant Stage
CPR 20.4(2)(b) provides that a counterclaim can be brought “at any time” with the court’s permission.
In Rahman v Stirling Credit  1 WLR 496 the Court of Appeal found that where the judgment remains unsatisfied, in the sense that the eviction has not been executed then the court has a discretion to grant permission to bring a counterclaim. The Court of Appeal found that delay in bringing the counterclaim was not a bar.
As to the exercise of the discretion CPR 20.9(2) provides that:
(2) The matters to which the court may have regard include –
(a) the connection between the additional claim and the claim made by the claimant against the defendant;
(b) whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
(c) whether the additional claimant wants the court to decide any question connected with the subject matter of the proceedings –
(i) not only between existing parties but also between existing parties and a person not already a party; or
(ii) against an existing party not only in a capacity in which he is already a party but also in some further capacity.
Usually where the tenant’s obligation to pay rent may properly be regarded as the corollary of the landlord’s obligation to repair the exercise of discretion will favour the grant of discretion. This is particularly the case where the alternative would be the additional cost and inconvenience of separate disrepair proceedings which would in all likelihood be consolidated.
It is advisable when seeking to make a post-possession order counterclaim to apply for (1) an order suspending the warrant and (2) for permission to bring a counterclaim. A draft defence should be filed with the application and the application should set out in details the tenant’s attendance at previous hearings and, if the disrepair issue was not raised at hearing, notwithstanding the tenant’s attendance, why this is so. Usually the client will explain that either they did not attend previous hearings or that they did not know that they could claim for disrepair. In those cases the facts will need to be explained carefully and with clear reference to the overriding objective. The tenant will obviously have a better prospect of success when the disrepair issue could not have been raised at the time of the possession order because the disrepair post-dates the order. This will be particularly strong where the arrears also post date the order, for example where there has been substantial compliance with a suspended order followed by a deterioration.
When pleading a post-possession order counterclaim it is worth bearing in mind that Section 36(2) of the Limitation Act 1980 applies so that the court is not bound by the ordinary six year limitation rule. The counterclaim amounts to (if pleaded as such) an equitable set off so that damages for disrepair (in so far as they are being used to extinguish rent arrears) can extend beyond the limitation period.
In Filross Securities Limited v Midgeley  31 HLR 465 the Court of Appeal held that -
"The defence of equitable set off is an exercise of equitable jurisdiction which prevents a person from recovering damages without accounting for a sum that should be paid in equity. The defendant's obligations to pay rent and service charges were so intimately bound up with the alleged breaches of the plaintiff landlord's repairing covenant…that it would be unjust for the defendant to obtain damages without accounting for any rent due.
… equitable defences are not governed by the statutory period of limitation that applies to claims to enforce legal rights, it is section 36(2) of the Limitation Act 1980 that applies to the defence of equitable set off rather than section 35."
The upshot of that is that if, on its proper construction, the tenant's counterclaim for damages for breach of the covenant to repair is an equitable set off (as explained in Filross Securities Limited v Midgeley  31 HLR 465 citing Hanak v Green  2 QB 9) then normal time limits do not apply where equitable relief is sought.
However, it is not just counterclaims for disrepair that can be brought post-possession order. Damages may likewise be sought for discrimination or for breach of quiet enjoyment. This will be particularly helpful where the act of enforcing a possession order or seeking eviction is alleged to be discriminatory, and in particular where there has been some further act by the tenant, that is, non-compliance with a suspended order, which is said to arise in consequence of a disability. In those circumstances, the tenant continues to enjoy the protection of the Equality Act 2010. For example, in the case of Poplar HARCA v White, which Jim Shepherd discusses, the application was for the court to either set aside the possession order on grounds of the client’s incapacity or alternatively to give permission for a post-possession order counterclaim for discrimination.
Section 35 of the Equality Act 2010 concerns the management of premises and provides that “A person (A) who manages premises must not discriminate against a person (B) who occupies the premises— […] (b) by evicting B (or taking steps for the purpose of securing B's eviction)”. Therefore it is abundantly clear that the decision to enforce a warrant is one to which the duty not to discriminate attaches, so that damages for discrimination can be obtained.
Thus if the landlord, with knowledge of the disability, continues to “take steps for the purpose of securing B’s eviction” there will be an unlawful act notwithstanding that the possession proceedings were lawful when issued. As Lord Neuberger said in Lewisham v Malcolm  1 AC 1399 at  “…where the reason for seeking possession (or, if relevant, the landlord's knowledge), changes during the course of the procedure, it may be that an exercise, which had started off as lawful, could thereby become unlawful under the 1995 Act.”
The usual form of discrimination is discrimination arising from disability contrary to Section 15 which provides as follows:
(1) A person (A) discriminates against a disabled person (B) if
- a) A treats B unfavourably because of something arising in consequence of B’s disability and
- b) cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know and could not reasonably have been expected to know that B had the disability.
Section 6(1) provides that a person has a disability if they have “a physical or mental impairment and the impairment has a substantial and long term adverse effect on P’s ability to carry out normal day to day activities.” “Substantial” means more than minor or trivial (Section 212), and “long term” means the effect has lasted at least 12 months, is likely to last at least 12 months, or is likely to last the rest of the person’s life (Schedule 1 para 2 EA 2010).
The “something” must be identified by the court (P v Governing Body of a Primary School  UKUT 154 (AAC) ) and the disabled person must have been treated less favourably “because of” that something.
P v Governing Body of a Primary School  UKUT 154 (AAC) confirmed the earlier DDA cases of Edmund Nuttall Ltd v Butterfield  ICR 77 and Governing Body of X Endowed Primary School v Special Education Needs and Disability Tribunal and Ors  EWHC 1842:
“the critical question is one of causation. What was the reason for the less favourable treatment…?” If that analysis shows more than one reason “if the legitimate impairment was a reason and thus an effective cause of the less favourable treatment, then prima facie discrimination is made out notwithstanding that the excluded condition also forms part of the … reason for that treatment.” para 52.
It is for the Claimant to prove that it did not know and could not reasonably have been expected to have known of the Defendant’s disability at the time of the unfavourable treatment. If this is shown then the Claimant will not have acted unlawfully within Section 15. Of course, once a possession order has already been made it is likely that any issues of disability will be before the landlord. Moreover, there may well be evidence on the court file that such issues were before the court and landlord at the possession hearing.
Where there is prima facie discrimination, a landlord can nonetheless escape liability if the unfavourable treatment is justified. The burden under Section 15 is on the Claimant to show that the unfavourable treatment was a proportionate means of achieving a legitimate objective. Three elements were explained by Mummery LJ in R (Elias) v Secretary of State for Defence  1 WLR 3213 , para 165:
“First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?”
Endorsed in the housing context by the Supreme Court in Aster Communities Ltd (formerly Flourish Homes Ltd) v Akerman-Livingstone  UKSC 15  2 W.L.R. 721
Any failure to comply with the duty to make reasonable adjustments will be highly relevant to justification as well as giving rise to damages independently.
Damages are awarded in line with the guideline case of Vento v Chief Constable of West Yorkshire Police  IRLR 101 and uprated in Da’Bell v NSPCC  I.R.L.R. 19. It is worth bearing in mind that in Vento the Court of Appeal said that “in general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.” (paragraph 65) Adjusting the £500 absolute minimum in Vento for inflation, that figure is now £729.97. Therefore £750 is reflective of only the most nominal level of damages for injury to feelings, a sum that would be sufficient in many cases to make a significant dent on rent arrears.