To suspend or not to suspend: guidance on judges’ discretion in possession proceedings

The Court of Appeal has given guidance as to when a court can and should suspend a possession order made under the Housing Act 1988 (relating to housing association or local authority tenancies).  In City Westminster Housing Trust v Massey: Manchester & District Housing Association v Roberts [2016] EWCA Civ 704 the Court was dealing with 2 appeals on the same facts, namely tenants who were found to have cultivated cannabis in their properties.  In one case the court suspended the possession order (‘SPO’), and in the other no suspension was granted.  The Court upheld both decisions and gave the following guidance:

The granting of an SPO is case-sensitive and must turn on its own facts [46].
Where the breach of the tenancy relied upon involves committing a criminal offence, “the court should only suspend the order if there is cogent evidence which demonstrates… a sound basis for the hope that the previous conduct will cease” [17].
“To be “cogent”, the evidence must be more than simply credible: it must be persuasive. 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” [47].
“On the one hand, the tenant does not have to give a cast-iron guarantee. On the other hand, a social landlord does not have to accept a tenant who sets out to breach the terms of his tenancy and disables the landlord from providing accommodation in more deserving cases.” [48]
The cogent evidence need not stem from the tenant: “For example, a tenant who has mental health problems affecting his ability to comply might be able to show that his compliance in future is made likely because of support received from others.” [49]
Lies told by a tenant do not remove the chance of an SPO being granted: “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. That will require careful consideration and appropriate explanation when the district judge gives his reasons for making an SPO.” [53]
While judges ultimately retain a wide discretion as to whether to make an SPO, it is hoped that this guidance will not only set a framework for consideration, but also assist parties in considering settlement options early on in the proceedings.