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Cite as: [2013] EWCA Civ 641, [2014] PTSR 444, [2013] WLR(D) 222

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Neutral Citation Number: [2013] EWCA Civ 641
Case No: B5/2012/2551

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
Mrs Recorder Moulder
1RG51240

Royal Courts of Justice
Strand, London, WC2A 2LL
07/06/2013

B e f o r e :

LADY JUSTICE ARDEN
LORD JUSTICE KITCHIN
and
SIR DAVID KEENE

____________________

Between:
Ms Wendy Ann Holt
Appellant/
Defendant
- and -

Reading Borough Council
Respondent/Claimant

____________________

(Transcript of the Handed Down Judgment of
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____________________

Liz Davies (instructed by Turpin & Miller LLP) for the Appellant/Defendant
Andrew Arden QC and Toby Vanhegan (instructed by Reading Borough Council)
for the Respondent/Claimant
Hearing date : 14 May 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Kitchin:

    Introduction

  1. This is an appeal by the defendant, Ms Wendy Holt, against the order made by Mrs Recorder Moulder requiring her to give up possession of her home, 28 Southdown Road, Emmer Green, Reading ("the property") to the claimant, Reading Borough Council ("the council"). Permission to appeal was refused by the Recorder but, on the defendant's application to this court, permission was granted on the papers by Rimer LJ. In broad terms, the defendant contends the Recorder fell into error in two respects: first, in deciding that it was reasonable to make a possession order; and second, in making an order for possession in the particular form that she did.
  2. The background

  3. The defendant is a single lady who was born on 1 December 1953 and she has lived in the property for the whole of her life. It is a detached house with three bedrooms and it has its own front and rear gardens.
  4. The council is the owner of the freehold of the property and in April 1949 it granted a weekly tenancy of it to Mr Arthur Holt, the defendant's late father. Mr Holt died in 1977 and the tenancy was transferred to his widow, Mrs Edna Holt, the defendant's late mother. From the commencement of the Housing Act 1980, Mrs Holt enjoyed a secure tenancy. Mrs Holt died on 24 July 2010, aged 90, and the defendant thereupon succeeded to the tenancy by operation of ss. 87 and 89 of the Housing Act 1985 ("the 1985 Act").
  5. The defendant cared for Mrs Holt for the last twenty years of her life. During that time Mrs Holt's health gradually deteriorated. She had a series of strokes and consequent mobility problems, and then developed Alzheimer's disease which made her increasingly confused and aggressive. There came a time when Mrs Holt needed care both day and night and, as her sole carer, the defendant provided it all. As the Recorder held (at [28]):
  6. "No one reading her witness statement could fail to appreciate the enormous burden which caring for her mother placed on the Defendant and the selfless way in which she carried on over a period of years."
  7. In January 2011 the council formed the view that to allow the defendant to remain in the property on her own was not an efficient use of its resources. She was, in the council's terminology, an under-occupier and so it considered she ought to apply for accommodation more suited to her needs. Under the council's housing allocation scheme, all applicants for housing assistance are placed on a priority band according to their level of housing need. Tenants who are under-occupiers are placed in priority band B, indicating that they have a high level of priority and an urgent need to move.
  8. Accordingly, on 13 January 2011, the council assisted the defendant to complete a registration form for the allocation of a new property. The defendant was duly placed in band B and she became entitled to "bid" for a property for which she qualified. As a single person, aged 58, the defendant became entitled to bid for a property with one bedroom.
  9. The defendant has, however, refused to bid for alternative accommodation because she does not wish to leave the property. It contains a lifetime of belongings and she is deeply attached to it. As her doctor explained, she feels secure there and is very low and anxious about having to move.
  10. On 14 June 2011, the council therefore served notice on the defendant seeking possession of the property on ground 16 of Schedule 2 of the 1985 Act. On 18 November 2011, the claim for possession was issued.
  11. On 6 February 2012, the council persuaded the defendant to view two alternative properties, 115 Grove Road, Emmer Green, Reading and 17 Dovedale Close, Caversham, Reading, both of which are one-bedroom flats reasonably close to the property. The defendant objected to both of them for a variety of reasons. A little later, two other one-bedroom properties became available at 2 Flambards, Lower Henley Road, Caversham, and 8/42 Knight's Way, Emmer Green, but the defendant declined to view or bid for either of them.
  12. In May 2012 a ground floor one-bedroom flat became available in Dovedale Close, Caversham. It has gardens to the front and rear and its own shed for storage. The defendant viewed it on 15 June 2012. Although it was at the time in a relatively poor decorative state, the defendant was told that the council planned to redecorate it and bring it up to an appropriate standard. The defendant was invited to think about the flat and draw up a list of items that might make it more attractive to her. However, despite numerous chasing phone calls, the defendant never reverted to the council to indicate whether it was of any interest to her or what improvements might make it acceptable.
  13. The pressures on the council's housing stock are very great. In July 2012 there were 9,486 applicants on its housing register. Of these, 1,242 were seeking three-bedroom properties, but the council had only 13 such properties available.
  14. The trial of the claim came on for hearing on 10 September 2012. The Recorder gave judgment on 11 September 2012 and made the possession order against which the defendant now appeals.
  15. The legislation

  16. Section 84 of the 1985 Act provides, so far as relevant:
  17. "Grounds and orders for possession
    (1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2 .
    (2) The court shall not make an order for possession
    (a) on the grounds set out in Part I of that Schedule (grounds 1 to 8), unless it considers it reasonable to make the order,
    (b) on the grounds set out in Part II of that Schedule (grounds 9 to 11), unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect,
    (c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect;
    and Part IV of that Schedule has effect for determining whether suitable accommodation will be available for a tenant."
  18. In this case we are concerned with ground 16 (Schedule 2, Part III) which at the relevant time read:
  19. "The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant and
    (a) the tenancy vested in the tenant by virtue of section 89 (succession to periodic tenancy), the tenant being qualified to succeed by virtue of section 87(b) (members of family other than spouse), and
    (b) notice of the proceedings for possession was served under section 83
    (or, where no such notice was served, the proceedings for possession were begun)
    more than six months but less than twelve months after the date of the previous tenant's death.
    The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include
    (a) the age of the tenant,
    (b) the period during which the tenant has occupied the dwelling-house as his only or principal home, and
    (c) any financial or other support given by the tenant to the previous tenant."
  20. As for the suitability of alternative accommodation, Part IV reads, so far as relevant:
  21. "1. For the purposes of section 84(2)(b) and (c) (case in which court is not to make an order for possession unless satisfied that suitable accommodation will be available) accommodation is suitable if it consists of premises
    (a) which are to be let as a separate dwelling under a secure tenancy, .
    .
    and, in the opinion of the court, the accommodation is reasonably suitable to the needs of the tenant and his family.
    2. In determining whether the accommodation is reasonably suitable to the needs of the tenant and his family, regard shall be had to -
    (a) the nature of the accommodation which it is the practice of the landlord to allocate to persons with similar needs;
    (b) the distance of the accommodation available from the place of work or education of the tenant and of any members of his family;
    (c) its distance from the home of any member of the tenant's family if proximity to it is essential to that member's or the tenant's well-being;
    (d) the needs (as regards extent of accommodation) and means of the tenant and his family;
    (e) the terms on which the accommodation is available and the terms of the secure tenancy;
    (f) if furniture was provided by the landlord for use under the secure tenancy, whether furniture is to be provided for use in the other accommodation, and if so the nature of the furniture to be provided."
  22. In this case there was no dispute that the property was more extensive than the defendant reasonably required. So there were two issues for the Recorder to determine: first, whether it was reasonable to make the order for possession; and second, whether she was satisfied that suitable accommodation would be available for the defendant when the order took effect.
  23. The general approach to a consideration of reasonableness in a case such as this is well established. The task of the judge is to take into account all of the relevant circumstances as they exist at the date of the hearing in a broad common sense way and giving such weight as the judge thinks right to the various factors in the case: Cumming v Danson [1942] 2 All ER 653, per Lord Greene MR at 655. The judge must look at the effect of the order on each party to it, that is to say the effect on the landlord and the tenant: Cresswell v Hodgson [1951] 2 KB 92, per Somervell LJ at 95. A genuine and practical desire to improve the deployment of the housing stock of a local authority is a relevant reason for seeking possession of an under-occupied property: see, for example: London Borough of Enfield v French (1984) 17 HLR 211 per Stephenson LJ at 218 and Manchester City Council v Benjamin [2008] EWCA Civ 189; [2008] HLR 38 per Sir Peter Gibson at [16], [37] and [40]. But this is simply one of the matters to be taken into account along with all the other relevant factors in the case, including those set out in ground 16 itself. Hence such matters as the tenant's personal circumstances, the period during which the tenant has occupied the premises and the support the tenant has given to the previous tenant may outweigh the pressures on social housing, as in the case of Bracknell Forest Borough Council v Green [2009] EWCA Civ 238; [2009] HLR 38.
  24. The assessment of reasonableness therefore involves a multi-factorial evaluation, and it is one with which an appeal court will be reluctant to interfere unless the lower court has erred in principle or unless its decision is obviously wrong: see, for example, Bracknell Forest per Mummery LJ at [25]-[30].
  25. Turning to the issue of suitable alternative accommodation, this is not spelled out in ground 16 as one of the mandatory factors to which consideration must be given in assessing reasonableness. But that does not mean to say it is not a relevant consideration. It may well be. Indeed, the complaint made by the appellant council in Bracknell Forest was that the judge had wrongly failed to take the suitability of the alternative accommodation into account in deciding it would not be reasonable to make an order for possession. If, however, the court does consider it reasonable to make an order for possession it must still be satisfied that suitable accommodation will be available, as Mummery LJ explained at [33]:
  26. "In my judgment, if the court decides that, in all the circumstances, it is reasonable to make an order for possession, the court must then re-visit available suitable accommodation as a specified circumstance. The real issue is whether the recorder in fact took the availability of suitable accommodation into account as a relevant consideration when he decided that it was not reasonable to make an order for possession. If he did, that was the end of the matter and there was no need to re-visit suitable accommodation specifically."
  27. Further, the court must be satisfied that the suitable accommodation will be available when the order takes effect. As I will explain, the meaning of this temporal aspect of the requirement is one of the particular issues to which this appeal gives rise.
  28. The judgment of the Recorder

  29. The Recorder set out the background facts, noted the acceptance by the defendant that the property was more extensive than she reasonably required, identified the relevant provisions of the 1985 Act and referred to various authorities cited to her including Cumming and Bracknell Forest.
  30. The Recorder then turned to consider the issue of reasonableness and, in that regard, noted the primary grounds upon which the defendant contended it would not be reasonable to make an order for possession as being, first, that the defendant had lived in the property for the whole of her life; and second, that the defendant was the primary carer for her mother during the many years of her debilitating illnesses and gradually deteriorating health.
  31. As for the first of these matters, the Recorder accepted that the defendant was deeply attached to the property, that it contained a lifetime of belongings and that there was a real risk that she might not settle elsewhere. The Recorder noted, however, that this was not a case where the defendant was engaged in the local community or derived support from her neighbours. Her attachment was, in the Recorder's view, a general attachment to the area in which she had lived for the whole of her life, and it was one born out of familiarity.
  32. In this regard, the Recorder specifically considered the defendant's health. She found (at [32]-[33]) that the defendant felt low and anxious about the thought of having to move and observed that this was an inevitable consequence of having lived in the property for such a long time. However, she concluded there was no satisfactory evidence to support an argument that a move would prejudice the defendant's mental health.
  33. The Recorder then turned to consider the support given by the defendant to her mother. This too was, in the Recorder's judgment, a very significant factor. Some idea of the devotion shown by the defendant may be gained from this evidence which she gave and which the Recorder accepted:
  34. "I was the sole carer for my mother. During the last two years of her life she did not leave her room. My whole life was dedicated to looking after her. My mother would wake up several times during the night. I would attend to her During the last five years of my mother's life I do not recall ever having had an uninterrupted night's sleep. I spent each and every day sitting in the room with her. I would spend almost every day alone with my mother. I got no respite assistance. The G.P. had offered some but my mother would not have it."
  35. It was in light of this evidence that the Recorder made the finding to which I have referred at [4] above.
  36. Turning to the council, the Recorder heard graphic and moving evidence of its competing needs. There is plainly a huge demand for three-bedroom properties in the area and the number of needy applicants is increasing.
  37. This brought the Recorder to the necessary balancing exercise and she expressed her conclusion in these terms at [38]:
  38. "I accept the Defendant would be profoundly upset, but I do not find on the evidence that she will be destabilised in any medical sense. In my view the effect on the Claimant if the order is made is that a three-bedroomed property becomes available and given the comparatively tiny number of three-bedroomed properties currently available for allocation compared with over 1,000 applicants, this is in my view where the balance lies. I do not think it is sufficient to say the Claimant may recover the property in the future. The court has to look at the competing needs of the parties as at the date of the hearing. Whatever the precise circumstances of individual applicants on the waiting list, there are clearly a significant number of people who qualify for three-bedroomed properties and, given the tiny number available, are unlikely to be able to be allocated a property appropriate for their needs in the near future."
  39. The Recorder next considered whether she could be satisfied that suitable accommodation would be available to the defendant when the order took effect. At the outset, she held that the court had the power to make an order for possession conditional upon an offer of alternative suitable accommodation being made. It would, in her view, unfairly penalise councils and other applicants on the waiting list if councils had to keep available scarce properties for a period of months until any particular case came to court.
  40. The Recorder then turned to consider the various characteristics that suitable alternative accommodation for the defendant must have. In that regard she noted again that the defendant was anxious about leaving the property but observed that she was fit enough to ride a bicycle. In all the circumstances, the Recorder considered that the alternative premises would need to be within 1.5 miles of the property. The Recorder also had regard to the defendant's wish to have a garden but she considered that, though understandable, this was not a necessary requirement. The defendant would, however, need to have somewhere to store her bicycle.
  41. Under the council's housing allocation scheme, the defendant qualified for a one-bedroom property and this, the Recorder considered, was all she required. Rather telling evidence was also given by the council's Housing Officer. She explained that the defendant was taken to view the three properties to which I have referred at [9] and [10] above. The first two were rejected by the defendant, one because it did not have a garden and there was nowhere for her to store her bicycle and the other because it was not, in the defendant's view, in a suitable state of repair. As for the third property, although this required some updating, the defendant was told it could be altered if the defendant indicated what matters she thought required attention. As I have mentioned, the defendant did not respond to the council as to whether or not, following her visit, she was interested in the property. However, in her oral evidence to the Recorder, the defendant frankly stated "it was perfectly alright as a place. I just didn't want to live there".
  42. In the light of all this evidence, the Recorder formed the view that suitable alternative accommodation would become available for the defendant and that, in any event, she would be protected by the conditional order she had in mind.
  43. The Recorder then expressed her overall conclusion in these terms at [49]:
  44. "In my view balancing these competing factors and weighing the personal circumstances of the Defendant against the needs of others for whom the Claimant has to take account, in my conclusion the needs of others at this time outweigh the personal circumstances of the Defendant, and accordingly, taking into account the provision of suitable alternative accommodation, in my view it is reasonable in the circumstances to order possession. However, given that no offer of suitable alternative accommodation has been made at the date of this hearing, the order which I make is an order for possession within twenty-eight days of a formal binding offer being received by the Defendant from the Claimant of suitable alternative accommodation, namely a secure tenancy of a one-bedroomed property within 1.5 miles of her current property. That property does not have to have a garden but should have a store or similar where the Defendant can store her bike."
  45. An order was duly drawn up and sealed. It reads, in material part:
  46. "IT IS ORDERED THAT
    1. The Defendant do give to the Claimant possession of the premises known as 28 Southdown Road, Emmer Green, Reading, RG4 8RN ("the premises") within 28 days of the receipt by the Defendant of a formal binding offer in writing sent by the Claimant of a property that is a secure tenancy of one-bedroom, with a storage area or similar for the purpose of storing the Defendant's bicycle and is within a 1.5 mile radius of the premises as shown edged black on the plan as filed with the Court on 11 September 2012 and attached herein.
    2. For the purposes of paragraph 1 above, the following process shall constitute a formal binding offer:
    (I) the Claimant shall identify or the Defendant shall successful bid for a property complying with paragraph 1 above. The parties agree that the Defendant may bid for any property provided that it is one-bedroom only;
    (II) the Claimant shall send the Defendant a preliminary letter offering the property to the Defendant and asking the Defendant to contact it within 14 days of receipt of the letter in order to arrange a view of the property;
    (III) if the Defendant does contact the Claimant (either following receipt of the preliminary letter or the second letter referred to in (IV)(b) below), the view of the property shall be within 14 days of that contact or such longer period as agreed between the parties;
    (IV) the Claimant shall send the formal binding written offer, as referred to at paragraph 1 above on one of the following events occurring:
    a) seven days after the view of the property; or
    b) if there has been no contact from the Defendant, the Claimant shall send the Defendant a second letter not earlier than 14 days after the date of the preliminary letter at paragraph 2 (II) giving the Defendant a further 7 days from the date of the second letter to contact it to arrange a view, if there is then no contact from the Defendant, seven days after the date of that second letter.
    3. Liberty to either party to apply to the Court in respect of paras 1 and 2 above."

    The appeal

  47. The defendant contends that the Recorder fell into error in four material respects. In summary, she argues:
  48. i) the Recorder failed to give sufficient weight to the support given by the defendant to her later mother and that, in the circumstances of this case, that factor should have led the Recorder to conclude it was not reasonable to make an order for possession;

    ii) the Recorder erred in failing to find that the defendant would not be destabilised by having to leave her home, and further erred in distinguishing this case from that of Bracknell Forest on that basis. Her position is at least as compelling as that of Mr Green and the Recorder ought to have found it would not be reasonable to make an order for possession for this reason too;

    iii) the Recorder erred in finding that suitable accommodation would be available for the defendant when her order took effect and in making the conditional order which she did. The Recorder ought rather to have decided whether a particular unit of accommodation was suitable for the defendant, and whether that unit would be available when her order took effect;

    iv) by way of further elaboration of the immediately foregoing argument, the order made by the Recorder is unprecedented and wrong. In so far as the Recorder relied on authority, it does not support the course she took or is wrongly decided.

  49. It will be seen that these contentions fall into two groups. The first and second are concerned with the assessment of reasonableness and it is convenient to take them together. The third and fourth are really aspects of the same complaint and amount to a submission that Recorder failed to satisfy herself of the second statutory precondition for making an order of possession, that suitable accommodation would be available for the tenant when the order took effect. So they too are best taken together.
  50. The assessment of reasonableness

  51. The defendant argues that, in a case such as this, where she has lived in the property for the whole of her life, and cared for her late mother over very many years during which her mother's health steadily deteriorated, it cannot be reasonable to require her to give up possession. Further, to find that she must give up possession in circumstances such as these means that the housing problems facing the council have effectively become the decisive consideration in the assessment of reasonableness and this was not Parliament's intention. To the contrary, ground 16 focuses on the circumstances of the tenant.
  52. Moreover, the defendant continues, it is plain that she will be deeply affected by having to move. She does not challenge the finding by the Recorder that she would not be destabilised in a medical sense, but says she is a lady living on her own and feels socially isolated. Just like Mr Green in the Bracknell Forest case, she wishes to go on living in her home which provides her with a sense of security and holds the memories which sustain her. Indeed, she says, her situation is more compelling than that of Mr Green because he lived with his sister and had not shouldered the burden of caring for an elderly parent.
  53. I have great sympathy for the defendant. However, the points now taken by her were all matters to which the Recorder gave anxious consideration in her long and careful judgment. The Recorder specifically took into account the period during which the defendant had resided in the property, and properly recognised it to be a highly material factor. The Recorder also referred to the evidence from the defendant's doctor that she became agitated when she was away from the property and that it contained a lifetime of belongings and, no doubt, memories. The Recorder expressly mentioned the defendant's anxiety and depression at the thought of having to move, and the Recorder found there was a real risk the defendant might not settle elsewhere.
  54. All of these matters are, to my mind, entirely understandable. It is bound to cause the defendant considerable distress to have to move from the home in which she has always lived and which she loves. On the other hand, the Recorder also noted that she was now living in the property, a three-bedroom house, on her own; that she did go out of the property; that she was reasonably fit and able to cycle, although she did so with her sister; and that she did not derive or need support from her existing neighbours. Her attachment was, in the Recorder's view, to the neighbourhood, and it was one derived from familiarity.
  55. The Recorder also took full and careful account of the fact that the defendant was her mother's sole carer over very many years; that, as time went on, her mother became increasingly infirm, confused and aggressive; and that her mother's deteriorating condition required the defendant to attend on her day and night without respite. But against this, the Recorder also properly noted that it was now two years since her mother's death and that although the defendant was still no doubt affected by her long confinement to the property, this was a reasonable period of time and the defendant evidently no longer felt constrained to remain there.
  56. In assessing the defendant's condition, the Recorder also took note of her reaction to the third property she was shown, the ground floor flat at 16 Dovedale Close, and her lack of any substantive objection to it other than that she simply did not want to live there.
  57. So, in summary, the Recorder had careful regard to all the matters upon which the defendant now relies. The Recorder then went on to consider the position of the council and the pressures upon its housing stock, as she was bound to do. I reject the submission that the defendant's circumstances were such that the Recorder ought necessarily to have concluded it would not be reasonable to make an order for possession. That would have been to impose a wholly improper fetter on the assessment the Recorder was required to carry out. So also, I reject the submission that to find it was reasonable to make an order for possession effectively elevated the pressures upon the council's housing stock to an overriding consideration. The Recorder plainly considered it a powerful consideration in the light of the evidence she had heard. But she never treated it as a factor which must necessarily drive a conclusion in favour of the order sought.
  58. I am therefore entirely satisfied that the Recorder directed herself correctly as to the relevant principles, properly considered the evidence before her, identified the material considerations and weighed them with great care in arriving at her conclusion. The Recorder made no error of principle and did not arrive at a conclusion which was plainly wrong. Indeed, I think it was correct.
  59. It remains only to add a word about the relevance of the findings made on the particular facts of other cases. It seems to me that in assessing the reasonableness of making a possession order it is not appropriate or helpful to seek to seek to draw comparisons with the conclusions reached on the facts in other cases. Such a course is likely to lead to a needless citation of authority and a corresponding and unnecessary increase in the length and costs of the hearing because the competing considerations, taken as a whole, are bound to vary from case to case. The issue of reasonableness must be decided in each case in the light of its own facts.
  60. Suitable alternative accommodation

  61. The order made by the Recorder requires the defendant to give possession of the property within 28 days of the receipt by the defendant of a formal binding offer of alternative accommodation having particular characteristics. Those characteristics reflect the findings the Recorder had made as to suitability. In particular, she had found, and the order records, it must be a secure tenancy, have one bedroom, be within 1.5 miles of the property and have a facility for storing the defendant's bicycle.
  62. The order then proceeds to specify how the formal binding offer is to be made. It provides a mechanism for the defendant to bid for a one-bedroom property or, alternatively, for the council to identify one for her. The defendant is then entitled to view the property. If the defendant does view the property, or if she chooses not to do so and does not respond to a second invitation, the council is to send a formal binding written offer. Both parties have liberty to apply to the court.
  63. The defendant submits that it is clear from the terms of s.84(2) and Part IV of the 1985 Act that the court cannot make an order for possession unless it is satisfied that the alternative accommodation is reasonably suitable for the needs of the tenant and that it will be available at the date the order is to take effect. It follows, the defendant continues, that the court must retain jurisdiction to scrutinise the particular accommodation which is offered so as to ensure it is reasonably suitable and that it will be available when required.
  64. The defendant then turns to the order in this case and submits that the Recorder has made an order for possession without being satisfied either that particular alternative accommodation is reasonably suitable or that it will be available. The order simply sets out certain characteristics which the accommodation must have and, by implication, any accommodation with those characteristics will be suitable when that may or may not be so. This, the defendant argues, is not permissible under the statute. The defendant accepts that the order contains liberty to apply but submits that it is wrong in principle to throw onto the tenant the onus of bringing the matter back to court.
  65. In my judgment the answer to these submissions is to be found in the words of the legislation. Section 84(2)(c) says that the court shall not make an order for possession unless it is satisfied that suitable accommodation will be available for the tenant when the order takes effect. Part IV supplements this provision by providing that the accommodation will be suitable if the conditions set out in paragraph 1 of Part IV are satisfied, and the court considers the accommodation is reasonably suitable to the needs of the tenant and his family. Then, in determining whether the accommodation is reasonably suitable, the court must have regard to the matters set out in paragraph 2 of Part IV.
  66. It follows first, that the court cannot make an order for possession, whether conditional or otherwise, unless it is satisfied that suitable accommodation will be available when it is to take effect.
  67. Second, there is no requirement either that an offer of accommodation has been made before the date of the hearing of the application for the possession order or that the accommodation is available at the date of that hearing. Indeed the words of s.84(2) expressly contemplate that it may not be. The court must instead be satisfied that suitable accommodation will be available when the order takes effect. Dyson LJ put it this way in Wandsworth London Borough Council v Randall [2007] EWCA Civ 1126; [2008] 1WLR 359 at [35]-[36]:
  68. "35. It is true that the council has never offered Mr Randall a three bedroom flat. But section 84(2)(c) provides that the court shall not make an order for possession on the grounds set out in Part III of Schedule 2 unless it considers that "suitable accommodation will be available for the tenant". There is no requirement that an offer of accommodation shall have been made before the hearing. The requirement is that suitable accommodation will be available. That will be demonstrated by evidence at the hearing. So far as I am aware, the evidence before the deputy district judge was not directed to whether at the date when an order for possession took effect, there would be available to Mr Randall a three-bedroom flat which was reasonably suitable to his needs and those of his family. The issue before the deputy district judge was whether the one-bedroom flat at Augustus Road was reasonably suitable.
    36. I can see no good reason why the matter should not be remitted to a district judge (not necessarily Deputy District Judge Ryan) to decide whether, when the order takes effect, there will be available to Mr Randall, his mother and half-sister accommodation that is reasonably suitable to their needs. It will be open to the council to establish that a three-bedroom flat will be sufficient for their needs and that there will be such accommodation available which is reasonably suitable having regard to all the circumstances, including the factors identified at paragraph 2 of Part IV of Schedule 2 to the Act."
  69. Third, and as Dyson LJ explained in this passage of his judgment in Randall, the court will be need to be satisfied that these requirements are fulfilled on the basis of the evidence before it at the hearing at which the possession order is made.
  70. Fourth, and importantly in the present context, there is nothing in the legislation which says that the court must be satisfied that these requirements are fulfilled by reference to a particular property. That may be the case, but in my judgment it need not necessarily be so. If, in the particular circumstances of the case and having regard to the matters set out in paragraph 2 of Part IV, the court is satisfied that accommodation having particular characteristics would be reasonably suitable to meet the needs of the tenant and his family and that such accommodation will become available then it seems to me that the court has jurisdiction to make a possession order which will not take effect until such accommodation has in fact become available.
  71. I am confirmed in this view by a consideration of the terms of paragraph 4 of Schedule 2. This reads:
  72. "(1) A certificate of the appropriate local housing authority that they will provide suitable accommodation for the tenant by a date specified in the certificate is conclusive evidence that suitable accommodation will be available for him by that date.
    (2) The appropriate local housing authority is the authority for the district in which the dwelling-house of which possession is sought is situated.
    (3) This paragraph does not apply where the landlord is a local housing authority."
  73. So, in a case where the landlord is not a local housing authority, a certificate from the relevant local housing authority that it will provide suitable accommodation for the tenant by a specified date is conclusive that suitable accommodation will be available at that time. Local housing authorities cannot self-certify and so the paragraph has no direct application to the present case. But it shows that the expression "suitable accommodation" in s.84(2)(b) and (c) and Schedule 2, Part IV is broad enough to encompass accommodation identified by reference to its essential characteristics and does not require the identification of a specific property.
  74. This interpretation also makes good sense. The pressures on a local housing authority are often severe. There will be cases, of which the present is a good example, where the authority is reluctant to hold one or more specific properties vacant pending the hearing of a claim for possession but where it can be confident that other suitable properties will become available within a reasonable time. The jurisdiction to make a conditional order in such cases equips the court with the flexibility to safeguard the interests of the tenant and permit the authority to manage its social housing effectively.
  75. That is not to say it will be appropriate to make a conditional order whenever a local housing authority seeks possession in a case of this kind. Indeed I believe the court should consider with great care whether such an order is necessary and appropriate in the particular circumstances of the case before it, or whether justice would better be served by adjourning the final determination of the application until a particular property has been identified. Relevant circumstances may include, for example, whether it would be unreasonable to impose on the tenant the burden of bringing the matter back to court, perhaps as a result of the tenant's vulnerability or personal circumstances; whether the tenant is legally represented; how frequently accommodation having the necessary characteristics becomes available in the relevant area; and how variable such property tends to be.
  76. Further, if the court is minded to make a conditional order, I think it desirable that the order should include specific liberty to apply. Circumstances may change between the date upon which the order is made and the date upon which it takes effect. So also, issues may arise which neither party could reasonably have anticipated. I therefore consider it important that the court retains the power to scrutinise the suitability of any particular property and to vary or even discharge its order. I recognise that under s.85 of the 1985 Act the court has wide powers to stay, postpone or suspend the execution of an order for possession. So also I consider that liberty to apply is implied because the order is still running, as Arden LJ explained in Manchester City Council v Finn [2002] EWCA Civ 1998; [2003] HLR 41. But the inclusion of express liberty to apply makes it clear that the court retains jurisdiction over the execution of the order and draws this to the attention of the tenant.
  77. I also think any such order should normally include a time limit within which the local authority must make the suitable accommodation available, and a provision that if it fails to do so the order will lapse. This will prevent the tenant from being subjected to an unreasonable period of uncertainty. The order in this case does not include such a temporal limitation but the defendant has been ably represented by solicitors and counsel throughout these proceedings and will not be disadvantaged by its omission, for I have no doubt that they will ensure the matter is brought back to court in the event the council begins to drag its feet.
  78. Finally, it is to be noted that, in the County Court, the issue of a warrant of possession is essentially an administrative process and does not require the permission of the court. I recognise too that bailiffs are required to deliver an appropriate form to any address where an eviction is due to take place and to hand it to the defendant, or leave it in an envelope addressed to the defendant and any other occupiers. Nevertheless, the court may consider that the circumstances of the case, including, for example, the defendant's vulnerability, are such that it is appropriate to include in the conditional order a direction that the authority must apply to the court for permission to issue a warrant, and so ensure court supervision of the process to this final step.
  79. Conclusion

  80. In my judgment the Recorder approached the issue of reasonableness entirely correctly. She made no error of principle and her decision was not obviously wrong. To the contrary, she considered the relevant competing considerations with great care and arrived at a conclusion which I would fully endorse. Further, she had jurisdiction to make a conditional order in the form that she did. I would therefore dismiss the appeal.
  81. Sir David Keene:

  82. I agree.
  83. Lady Justice Arden:

  84. I also agree.


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