Knowsley v White – Clearing the mist?

Are we any clearer on the rights of assured and secure tenants following Knowsley? Desiree Artesi reports

- secure tenants – discharge of suspended possession orders

- assured tenants – status post suspended possession orders

The current position

Following the combined appeal cases of Knowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; and Porter v Shepherds Bush Housing Association [2008] UKHL 70, are we any clearer on the law when advising secure and assured tenants?

Case Study

Mrs Folashade is an assured tenant of Brightwoods Housing Trust. In 2003 a suspended possession order was made against her on the ground of rent arrears. Mrs Folashade breached the order repeatedly but in 2005 cleared all the arrears, however, the suspended possession order remained in place. Mrs Folashade subsequently applied to exercise the right to buy. Brightwoods informed Mrs Folashade that she is no longer an assured tenant and therefore cannot exercise the right to buy. Mrs Folashade seeks a declaration from the court that she is an assured tenant.

Application of Knowsley

What is now clear is that Mrs Folashade remains an assured tenant with all the attendant rights regarding repairs and exercising her right to buy. This is because the assured tenancy (unlike in the case of a secure tenancy) ends only when an order for possession is executed.

The reasoning behind this points to a distinction between the provisions of Housing Act 1985 namely via section 82(2), and the corresponding lack of a similar provision in section 5 of the Housing Act 1988 (see paragraph 46 Knowsley). Section 82(2) makes specific provision in the case of a secure tenancy for when the tenancy comes to an end, and that is, “the tenancy ends on the date on which the tenant is to give up possession in pursuance of the order”.

What of the position of the secure tenant?

Although Lord Neuberger invited the Bar to make submissions on whether Thompson v Elmbridge [1987] 1 WLR 1425, ought to be revisited by their Lordships’ House, it must be right that practitioners and lawyers (not to mention housing officers), probably breathed a collective sigh of relief that this “old chestnut” was left well enough alone. However, be warned, that it will not be so for long. The long anticipated Housing and Regeneration Act 2008 will, (when in force) make provision for secure and assured tenancies to only end “ when the [possession] order is executed”.

Thus in the case of a secure tenancy, the position continues to be that, a secure tenancy which is the subject of a suspended possession order, comes to an end the moment the tenant fails to comply with the terms of the suspended possession order. Once the secure tenancy comes to an end there can be no succession rights to the secure tenancy (see London Borough of Newham v Hawkins [2005] EWCA Civ 451* which remains good law).

Re-gaining security of tenure

It comes as some relief for practitioners, that Marshall v Bradford Metropolitan District Council [2001] EWCA Civ 594; and Swindon Borough Council v Aston [2002 EWCA Civ 1850 were both overruled on the key issue of whether the court can make a prospective order so that upon clearance by the tenant of the arrears, the order is in effect discharged. With Marshall and Swindon now overruled, the way is clear for the courts to set prospective terms to a suspended order (referred to by Lord Neuberger as “proleptic” orders).

Sadly however, although Lord Neuberger himself agrees that the “rules of formal logic must not be applied with too great strictness” in this field, he nonetheless went on to state that in his view, the terms of a suspended order are to be literally applied and precisely complied with. Thus if the tenant fails to comply strictly with any of the terms of the suspended order, the landlord can apply for a warrant. It goes without saying that unless the tenant complies strictly with the terms of the suspended order, it is difficult to see how he could be successful in making an application under section 85(4) Housing Act 1985 to vary or discharge the order.

This it is suggested is not a practical solution to the problem on the ground where one is often dealing with the most vulnerable in society. It is therefore strongly argued that Lord Mance’s approach would be preferable on this point. Lord Mance’s reasoning provides scope for the court to exercise its jurisdiction to impose conditions under section 85(3) Housing Act 1985 and then to discharge the suspended order if, (and here Lord Mance suggests there is scope for reference to “substantial”), the order is substantially complied with. In other words the word “substantial” can and should be read into section 85(4) Housing Act 1985.

If the strict compliance approach of Lord Neuberger is applied it is difficult to envisage in reality circumstances in which an assured or secure tenant would be able to obtain the discharge of a suspended possession order.

DESIREE A A ARTESI is of Guyanese descent and is a practising Barrister at 3 Dr Johnson’s Buildings, Temple. Email: dartesi@3djb.co.uk