This article appeared in The Legal Executive March 2002. It is written by and is © of Daniel Collins who has given permission for it to be included in www.harassment-law.co.uk. It may only be reproduced with the permission of Daniel Collins

As can be imagined, the courts, in deciding whether to exercise its discretion are often faced with a multitude of complex and competing issues to be weighed in the balance. Such may not be an easy task. The judge must consider "all relevant circumstances … giving such weight as he thinks right to the various factors." Cummings v Dawson [1942] 2 All ER 653 at 655 per Lord Greene MR On the one hand, there may be the suffering of neighbours who may have endured years of abuse and intimidation. On the other, the effects on the children of the offending parties will be considered together with issues of policy, including the demerits of transferring a problem family from one area to another. A useful insight into judicial approach in this area is provided by examination of two key areas. Firstly, where the nuisance is created by the children of the lessees and, secondly, where possession is sought but other potential remedies exist to deal with the nuisance.

Here, the question is whether the court may hold lessees responsible for the anti-social behaviour of their children. Case law provides an affirmative response to this. In Kensington & Chelsea LBC v Simmonds (1996) 29 HLR 507, the son of the lessee had racially abused a neighbouring family over a period of months. Simon Brown LJ concluded that it was not necessary to "prove some particular degree of fault on the tenant’s own individual part." Interestingly, the fact that the child may be out of control seems irrelevant. His Lordship further stated that "it would be quite intolerable if they [the neighbours] were to be held necessarily deprived of all possibility of relief in these cases, merely because some ineffectual tenant next door was incapable of controlling his or her household."

Such a view was adopted in West Kent Housing Association Ltd v Davies (1999) 31 HLR 415, where a family was responsible for a campaign of prolonged abuse of neighbours, including racial intimidation of a neighbouring family by the 14 year old son of the lessees. In referring to Kensington, Walker LJ confirmed that "the knowledge and approval of his parents was not an essential factor."

Although specific reference has been made to a lessees liability for acts of their children, the lessee can be liable for the nuisance of any person visiting their premises. On this point, a comparison can be made with potential liability in tort for the nuisances of others. It has long been the case that an "occupier", namely a person in control of premises, can be liable for "adopting" a nuisance perpetrated by another where, upon becoming aware of it, he fails to take any reasonable steps to bring it to an end Sedleigh-Denfield v O’Callagan [1940] 3 All ER 349. This clearly introduces a requirement of fault in the negligence sense. Such is not necessary under the Housing Act – the fact of there being a nuisance is sufficient. Although this indicates something approaching strict liability, according to Walker LJ in West Kent Housing, it is still the case that the conduct of the lessee in trying to control the acts of their children is relevant when the court is deciding whether to exercise its discretion to make an outright or suspended possession order. That said, in this case, the court suspended the possession order despite noting that there had been no attempt by the parents to control the activities of their son. It was the cessation of the violent conduct during the previous nine months that persuaded the court to take this course of action.

A further example is Newcastle Upon Tyne City Council v Morrison (2000) 32 HLR 891. In this case, the court was asked to evict a woman and her three sons on grounds of two of these having subjected the neighbourhood to extreme anti-social behaviour. This had ranged from battery with weapons, criminal damage, intimidation and threats to kill and had continued over a six year period. Here, although the Court of Appeal sympathised with the plight of the mother, who was clearly unable to control her sons, such was outweighed by other considerations, including the need to satisfy the legitimate concerns of the neighbourhood.

It is important to ask whether it would be reasonable for a court to make a possession order, suspended or otherwise, where other methods with the potential to deal with the anti-social behaviour exist. This was also discussed in Newcastle Upon Tyne City Council v Morrison.

The recorder at first instance had refused to make any form of order because he felt that such would not have stopped the nuisance behaviour – the aggressors would merely have returned to carry on the intimidation when it suited and consequently, an injunction would have been a more suitable remedy. However, the Court of Appeal concluded that on balance, an outright possession was reasonable. Unlike in the case of West Kent Housing Association v Davies, the cessation of the nuisance was considered irrelevant and to not grant the order would have given licence to the offenders to carry on with their "reign of terror".

In referring to the issue of other potential remedies, May LJ referred to the earlier case of Sheffield City Council v Jepson (1993) 25 HLR 299 and held that a local authority should not be forced into seeking alternative remedies- it was in the public interest that such conditions of tenancies be adhered to.

The relationship between the test of reasonableness and alternative remedies was discussed again in Lambeth London Borough Council v Howard [2001] EWCA Civ 468. Here, the appellant, Mr Howard, had been responsible for persistent and obsessive harassment of his neighbour and her young daughter. This had led to his conviction under the Protection from Harassment Act 1997 and three months imprisonment. On appeal, the Crown Court substituted this with a three year probation order. A restraining order was also imposed prohibiting him from going within fifty yards of the flats where he had lived. Significantly, the Crown Court gave leave for a later application to be made for a variation on the restraining order depending on the outcome of the possession action. The rationale for this was clear: if the court did not make an outright possession order the restraining order would need to be varied to enable him to return home.

In Lambeth LBC v Howard, the Court of Appeal was called upon to consider the effects of the Human Rights Act 1998 on the process of repossession in the rental sector. Article 8 (1) states that everyone has the right to respect for his private and family life and his home. However, according to Article 8(2), any interference with these rights by a public authority is permissible if "in accordance with the law and is necessary … for the prevention of disorder or crime … or for the protection of the rights and freedoms of others."

It is therefore apparent, that in applying the Human Rights Act, the court must attempt to strike a fair balance. Performing this particular task may require what Sedley LJ termed a "methodical approach" (Referring to Johns and McClellan v Bracknell Forest DC Unrep, 21 Dec 2000 ). Firstly, this will involve an assessment of whether there are sufficient reasons for the interference, secondly, that the interference corresponds to an urgent social need and thirdly, such is proportionate to the aim being pursued. Each element was satisfied here.

One may conclude that despite such clarification, the court will often be faced with complex issues incapable of being resolved by the simple application of legal formula. Whilst the housing legislation provides the mechanism for removing a nuisance tenant, any decision on its use will rarely be straightforward. Determining whether or not to invoke the sanction of depriving the defendant of his home will often involve judgements of a social nature which the court may be ill-equipped to make. That said, there are encouraging indications that the judicial approach in this area is sensitive to the Human Rights Act. This is, in itself, highly commendable. However, is this really anything new? Indeed, in Lambeth LBC v Howard, Sedley LJ commented that there was nothing in the Act, particularly Article 8, which should lead the courts to "materially different outcomes" to those they have reached for years. This is encouraging and perhaps highlights the inherent fairness of the legal system in this most challenging of areas.