How to deal with a Closure Order and Possession Proceedings

23 Sep 2018 | William Ford

Over the last three years since the Anti-Social Behaviour Crime and Policing Act 2014 came into force Local Authorities and other social landlords have relied more and more on mandatory grounds for possession on the basis of “serious anti-social behaviour”. Landlords using these grounds for possession can rely on the making of a Closure Order, made in the Magistrates’ Court, which can have the effect of excluding tenants (and others) from properties for up to three months. They often also result in the properties being “tinned up” with metal safety barriers over the doors and windows.

Applications for Closure Orders pose a challenge for tenants facing them due to the quick timescale within which the court must hear them but also as the making of a Closure Order can give landlords a basis for seeking possession on mandatory grounds, depriving the court of the discretion to consider whether a possession order would be reasonable.

The landlord must comply with strict requirements when serving notice seeking possession on mandatory grounds on a tenant whose accommodation has been subject to a Closure Order. Notice can only be served within 3 months of the Closure Order being made or if there is an appeal of the Closure Order, within 3 months of the appeal being dismissed or abandoned.

If the landlord is a Local Authority it must give the tenant a right to a review of the decision to seek possession but there is a very tight timescale to make this request. Other social landlords are recommended, but not required, to adopt a similar procedure in statutory guidance produced by the Home Office. That guidance also suggests that landlords should only use the new mandatory grounds in the most serious cases.

The tenant retains the opportunity to raise issues of discrimination, and, if it is seriously arguable, whether the decision to seek possession is proportionate and/or complies with the tenant’s right to family life under Article 8 of the European Convention of Human Rights.

Case law in this area is limited but the County Court case of Paradigm Housing v Goode (October 2015) suggests that where there is a significant improvement in the tenant’s behaviour after service of notice, even when possession is sought reliant on the making of a Closure Order, may lead to an argument that the decision to seek possession was not proportionate, as might the lack of a review procedure.

Despite the mandatory ground for possession, there are some arguments available to tenants in possession proceedings arising from the making of a Closure Order. Any deficiencies within, or lack of, any review procedure, significant improvements in the tenant’s behaviour, or failure by the landlord to consider whether the conduct is sufficiently serious to rely on mandatory grounds, may give rise to arguments that a possession order should not be made even though a Closure Order has been made.

Even so, a tenant facing possession proceedings following a Closure Order is on the back foot and it is essential that he or she gets advice straight away as soon as a notice is served.

If you are facing a closure order and possession of your home contact the housing team at Osbornes Law. Our housing lawyers can help you with all of your housing issues.

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