The exercise of judicial discretion in rent arrears cases - Sheffield ...

Chapter 2: The legal and policy context
Introduction
In this chapter we describe the legal framework which applies to the possession process.
We then move on to consider the incidence of rent arrears amongst tenants of social
landlords and, briefly, what is known about why they arise and how landlords deal with them.
The legal framework
The majority of tenants of local authorities and housing associations are either secure or
assured, governed by either the Housing Act 1985 in the case of secure tenants or the
Housing Act 1988 for assured tenants. That is to say, in either case, the tenant cannot be
evicted without the landlord first serving a notice of seeking possession (NSP), which must
set out the ground and reasons for seeking possession. For both secure and assured
tenants, rent arrears provides a discretionary ground for possession, i.e. before the court can
make an order for possession, the judge must consider that it is reasonable so to do. For
secure tenants a case may be brought under Ground 1 (rent lawfully due from the tenant has
not been paid or an obligation of the tenancy has been broken or not performed); for assured
tenants under Ground 10 (some rent lawfully due from the tenant is unpaid on the date on
which the proceedings for possession are begun and was in arrears at the date of the
service of the notice); or under Ground 11 (whether or not any rent is in arrears on the date
on which proceedings for possession are begun, the tenant has persistently delayed paying
rent which has become lawfully due).
There are no statutory constraints on the judge’s exercise of discretion, and the case law
has emphasised that there is no restriction on what may be taken into account, save
relevance (Cresswell v. Hodgson [1951] 2 K.B. 92), although more generally in that case
Lord Denning stated that “reasonable” means having regard to both the interests of the
parties and also having regard of the interests of the public.
When considering possession brought on a discretionary ground, the judge has a range of
options as to what order s/he may make under section 85, Housing Act 1985, or section 9,
Housing Act 1988:
The application may be dismissed (e.g. because the arrears have not been proved,
or because the judge does not consider it reasonable to make the order)
Possession may be refused but a money or costs order may be made
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