Dealer's choice

A recent report on Local Government Lawyer of a case where the Court of Appeal upheld the eviction of a drug dealer’s family by a housing association generated huge interest. Dorota Pawlowski examines the background to the case and explains why registered providers should take heart from the ruling.

Birmingham based Friendship Care and Housing Association Limited has been successful in fighting off a challenge in the Court of Appeal to an Outright Possession Order which was made in relation to one of its properties situated in the Washwood Heath area of the City.

The tenancy was held jointly by a Sajid Qasim and his wife Hameeda Begum, the First and Second Defendants respectively. Possession proceedings were issued because of the criminal activity of the First Defendant who at the time of the Trial was in fact serving a four and a half year sentence for possession with intent to supply Class A drugs namely heroin, methadone, crack cocaine and crack as well as cannabis. Indeed, he is still in custody now. During the trial, he confessed to being a drug user and he also had previous drug related convictions.

At the end of the trial in Birmingham County Court, His Honour Judge Worster, made an Outright Order for Possession after giving all matters careful consideration, especially the children of the family who numbered 7 in total, ranging in ages from the eldest who was 23 (and quite severely disabled) to the youngest who was only 20 months old. Right at the outset of his judgement, the Judge said: "Were this case only about the conduct of the Defendants and the consequences of a Possession Order for them, it would be relatively simple". For their part, Friendship Care and Housing also acknowledged that there were "innocents" involved.

The Second Defendant appealed this decision and her appeal was based on two limbs, namely that the Judge failed to give proper weight to the interests of the children as a family and secondly that the Judge had acted "irrationally" when he decided that the Possession Order could not be suspended because it would be impossible to enforce a condition that the First Defendant should not return to the property.

During the hearing at the Court of Appeal, the Second Defendant's barrister conceded that if his argument failed in relation to the first point, then the second point could not succeed either and therefore the Appeal Judges considered that point first.

In essence, the Court of Appeal held that they agreed with His Honour Judge Worster that there was no point in suspending a Possession Order if it was going to be breached. They cited previous case law which had stated that there must be a sound basis to hope that the anti-social behaviour would cease. The terms of the suspension proposed by the Defence was to the effect that the First Defendant would not return to the property during the period of the suspension. This had already been rejected by the County Court Judge who had concluded that there was no hope for this Order being complied with. The Judge had found that the Second Defendant was not a credible witness. She had, for example, answered questions before they had been translated for her during the trial whilst being cross examined yet she claimed that she could not speak any English. Also, during a raid at the property on 19th December 2009, as the police were removing a television from the home, she stated to a Police Sergeant: "Don't take that one it’s the only one that isn't stolen". She denied saying this but the Judge found that he believed the Police Sergeant over her, who gave much more credible evidence. The Court of Appeal found no reason to interfere with the Judge's findings and upheld this decision.

In particular, the Appeal Judge has found that the Judge had asked himself the correct question, namely: could the First Defendant stay away from the property? The Judge found that he could have no confidence in what the First Defendant said about staying off drugs. He was a long term heroin addict who has ignored the deterrent of imprisonment to carry on with his dealing. He had come off drugs before in prison only to relapse four or five months later. He had used and dealt drugs in the property knowing that it was illegal and a serious breach of his tenancy as well as knowing that he was putting his family and his family's home at risk. Neither could the Judge have any real confidence in the Second Defendant's ability to keep her husband away. She had not been able to stop this conduct in the past and it was unrealistic to think that she would do so in the future.

Insofar as the irrationality of the decision in relation to the children was concerned, again, the Court of Appeal dismissed this. The Appeal Judge had said that, quite simply, the Judge gave full weight to the interests of the children particularly the older child (who is disabled) as well as the four younger ones. Throughout his judgement, the Judge returned to the issue of the children and at one point stated: "What has caused me to pause more than anything is of the potential effect on the 'innocent children', and I recognise that for them the making of a Possession Order carries with it a substantial degree of unfairness, for they are not in anyway responsible for the behaviour that has brought the matter to this point".

On a final note, the Appeal Judge also commented upon the Second Defendant's argument that the Judge should have gone the "extra mile" in order to find out what would happen to the children once a Possession Order was made. The Court of Appeal held that if a Defendant in litigation of this kind was to put forward an argument that children will be made homeless then it was important for the Defence to put evidence before the court in this respect. In the absence of evidence from the Defence as to what would happen to the children a Judge could assume that the local authority will comply with its numerous statutory requirements in respect of them.

Once again, the Court of Appeal has demonstrated that where the Judge has exercised his discretion and considered all relevant factors, then they will not interfere with his decision making process. Registered providers should take heart from this case that if innocent children will be affected by a Possession Order it will not prevent a court from making an Outright Order. Had the Second Defendant's argument succeeded, we would have been left in the unsavoury position of Defendants being able to rely on the fact that they have children in order to defeat a Possession Order where their conduct was the cause of the proceedings. Whilst the existence of children and what their fate may be if their parents are made the subject of a possession order are factors to be taken into account, they are not shields to hide behind.

Dorota Pawlowski is a Senior Associate at Trowers & Hamlins and acted for Friendship Care and Housing in this case. She can be contacted on 0121 214 8826 or by This email address is being protected from spambots. You need JavaScript enabled to view it..