Possession orders from discretionary to mandatory ground (004) what you need to know

Two recent decisions made by the Court of Appeal have confirmed that the County Court does have the power to vary an existing suspended possession order made on discretionary grounds to an outright possession order on mandatory grounds, even when a notice is served many years after the claim was issued or a possession order has been granted.

In Poplar HARCA v. Kerr [2024] EWCA Civ, the court considered the issue of whether a pre-existing suspended possession order made on a discretionary ground could be varied on the application of the landlord to an outright order on a mandatory ground.

In short, the answer was yes. The County Court held that a landlord can, by virtue of an application to vary an existing possession order to provide an outright possession on Ground 7A, this being consistent with the rule in Manchester City Council v. Finn (2003) HLR 41. Finn contemplated varying a suspended possession order to an outright order. Therefore, there is no reason why this should not extend to varying from a discretionary to a mandatory ground.

Ms Kerr was an assured tenant of Poplar since 2004. In 2017, Poplar obtained a possession order made on grounds of rent arrears; this order was suspended on terms of payment of rent plus an amount off the arrears.

In 2020, Ms Kerr’s son was convicted of an offence of possession of an imitation firearm with intent to cause violence, this offence was committed at the property. Ms Kerr’s son was sentenced to 14 months imprisonment. In 2021, Poplar served a second notice seeking possession on Ms Kerr, relying on Ground 7A.

Poplar then applied to the court to vary the existing possession order to provide for outright grounds on Ground 7a. The Defendant argued that such variation wasn’t within the court’s jurisdiction under Section 9 of the Housing Act 1988, or under a general jurisdiction to vary a possession order, to turn an order made on discretionary grounds into one made on mandatory grounds.

It was held that the court did have jurisdiction to make such a variation of the order and that section 9, like section 85 of the Act, bestows on the court an ongoing jurisdiction until the execution of the possession order to re-examine the terms of any suspension. However, Section 9 was not in issue and instead the requirements for the Ground 7A would have to be complied with. This being the requirement to serve a notice seeking possession and a right to seek a review. Both requirements had been met and so there was power to vary.

Hajan v. Brent LBC [2024] EWCA Civ

In 2010, Mr Hajan was granted a secure tenancy by Brent. In June 2022, Mr Hajan attended Brent Civic Centre and made threats to staff and caused damage to the building. He was later convicted of these offences and sentenced accordingly. Following the conviction, Brent served Mr Hajan with a notice seeking possession relying upon grounds 1 and 2 in Schedule 2 of the Housing Act 1985, and following the expiry of that notice, a claim for possession was issued in December 2022.

Several months later, after the possession claim had been issued, Brent served a second notice seeking possession, relying on the conviction and Ground 7A as the absolute ground for possession. In June 2023, Brent successfully applied to amend the claim to include the absolute ground.

Mr. Hajan sought permission to appeal, which was granted, and the case transferred to the Court of Appeal.

In the Court of Appeal, Mr Hajan argued that the 1985 Act requires the landlord not to commence proceedings until after expiry of the notice. Amending existing proceedings fails to consider this. The Court held that this was wasteful of costs, court time, and results in unnecessary duplication. The Court varied the order.