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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Knowsley Housing Trust v McMullen [2006] EWCA Civ 539 (09 May 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/539.html Cite as: [2006] EWCA Civ 539 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Platts
4SW01195
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE RIX
and
LORD JUSTICE NEUBERGER
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KNOWSLEY HOUSING TRUST |
Claimant/ Respondent |
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- and - |
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ANITA McMULLEN |
Defendant/ Appellant |
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Mr Edward Bartley Jones QC and Mr Paul Burns (instructed by Messrs Anthony Collins) for the Respondent
Hearing dates : March 28th 2006
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Crown Copyright ©
Lord Justice Neuberger :
Introduction
The findings of the Judge in summary
The three questions raised on this appeal
i) The defendant tenant was unable to control her son's behaviour and was mentally disabled;ii) The son's behaviour was already effectively controlled, and the neighbours were already sufficiently protected, by the existence and terms of the ASBO and the other restraints;
iii) The order for possession can be executed without prior application by the claimant to the court.
The effect of the 1995 Act in this case
"…a person … discriminates against a disabled person if--
(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified."
A justification can only satisfy section 24(1)(b) if it falls within section 24(3), paragraph (a) of which refers to the treatment in question being "necessary in order not to endanger the health or safety of any person".
The tenant is unable to control the person causing the nuisance: general discussion
a) When considering reasonableness, the Judge must take account of all relevant circumstances "in a broad common sense way";
b) The interests of neighbours and the obligations of the landlord to those neighbours are relevant in nuisance cases. This has been said to be established by "a long line of authority" as "a very pertinent factor" in Romano's case at paragraph 19, and it is now specifically enshrined in statute;
c) The fact that nuisance has ceased does not ipso facto prevent even an outright order for possession being made;
d) Although the tenant's conduct is a relevant factor, the fact that she has done her best to control the person responsible for the nuisance does not prevent the making of order for possession;
e) The fact that there may be an alternative remedy (in that case an injunction) available to the landlord does not of itself justify refusing an order for possession; and
f) An appellate court will only interfere with a decision on reasonableness where the Judge has taken an irrelevant factor into account, ignored a relevant factor, or reached a perverse conclusion.
The effect of the ASBO on making an order for possession: general discussion
The power to seek a warrant without applying to the court: general discussion
The suspended order for possession in this case
Conclusion
Lord Justice Rix
Lord Justice Auld