B2/2006/2230
Neutral Citation Number: [2007] EWCA Civ 303
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
(HIS HONOUR JUDGE MITHANI)
 
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 31 January 2007
 
B E F O R E:
LORD JUSTICE AULD

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MANSFIELD DISTRICT COUNCIL
CLAIMANT/RESPONDENT
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LANGRIDGE
DEFENDANT/APPLICANT
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MR I COLVILLE (instructed by Messrs Hopkins Solicitors) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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J U D G M E N T
1.	LORD JUSTICE AULD:  This is an oral renewal of an application on behalf of Paul Derek Langridge, made by Mr Iain Colville of counsel on his behalf, for permission to appeal from a decision of HHJ Mithani in the Nottingham County Court on 28 September 2006, granting Mansfield District Council a forthwith order for possession of a property in Mansfield of which Mr Langridge had been a tenant of the council.  Mr Langridge seeks to appeal against that decision on three grounds.  

2.	The first, it is said by Mr Colville, on a proper assessment of the facts found by the judge, to which there was no challenge, it was unreasonable of him to order possession -- or at any rate, in doing so, not to suspend it.  A point made by Mr Colville, to which I will briefly return, is that there were only 17 days on which there was nuisance, one of the statutory grounds of possession relied on by the Council over a period between April 2004 and February 2006.   

3.	The second ground is that the judge went wrong in concluding, as he did, that the Council had carried out a proper assessment in deciding to seek the eviction of Mr Langridge when it did, given that he was disabled within the meaning of that word in the Disability Discrimination Act 1995.

4.	Thirdly, Mr Colville submits that the judge went wrong in taking into account the evidence of a Ms Croft, who at one time was a neighbour of Mr Langridge, whom the judge considered had been treated in such a way as to suggest that, if this were to go on,  it could potentially injure her health.  

5.	The short facts -- as to which there is no dispute -- are that Mr Langridge became a tenant of this property in April 2004.  As such, he became a secure tenant of the Council for the purposes of Part 4 of the Housing Act 1985.  His behaviour during that period was deeply unsatisfactory in the council’s estimation.  In order to obtain possession it had to, and it felt that it could, satisfy the court that one of the grounds in Schedule 2 to the 1985 Act had been made out, and that it would be reasonable for the court to make an order for possession.  The Council sought immediate possession, relying on grounds 1 and 2 of the Schedule, namely that Mr Langridge had breached the express terms of his tenancy relating to payment of charges, anti‑social behaviour, repairs, bad hygiene, the keeping of animals and/or, and most importantly, that he was guilty of conduct causing, or likely to cause, a nuisance or annoyance to his neighbours.  In that second, rolled-up ground for possession, clearly a potential for causing illness to a neighbour would be a relevant factor.  It is not, however, a necessary factor under that ground.

6.	Mr Langridge, who was not mentally well, admitted that he had committed certain acts, but denied that he was in breach of his tenancy or that he had caused nuisance or any annoyance.  In the further alternative, it was argued on his behalf that it would not be reasonable to make an order for possession, immediate or suspended; in particular, because he had been diagnosed as having a disability within the meaning of the 1995 Act that required the Council to demonstrate that it was justified in taking action against him.  His argument was that, as the eviction would be unlawful within the meaning of the 1995 Act on account of disability discrimination, it would be a reasonable exercise of the court’s discretion for it to grant possession.  

7.	The court had before it a report from a doctor, Dr Holden, dated 26 June 2006 -- one prepared over a year after the Council’s assessment of him that showed he was suffering from a number of mental difficulties.  Apart from learning disability, he had Tourettes Syndrome, reactive changes in his mood, and anxiety and personality disorder.  In all, a man who, for whatever reason, was in a highly unstable state of mind.  He had been taking medication for one or more of those conditions.  Part of the problem was that when he was causing all the trouble that led the Council to seek this eviction, he had not been taking his medication.  

8.	In the course of a carefully conducted hearing by HHJ Mithani, which took place over a number of days, the Council established that the bulk of his bad behaviour had occurred between May 2005 and June of that year and some others afterwards.  The judge’s findings of fact, which are not challenged on this application, showed 25 days in 2004 of nuisance, 11 days in 2005 and a day in 2006 -- only 17 days, as Mr Colville has emphasised, in the pleaded period.  The judge, when considering the evidence and those findings, clearly had in mind, not only the exercise of his discretion whether to make a possession order, but also that, if he did exercise his discretion to do so, his further discretion to consider whether to make a forthwith or suspended order.  That he did take the latter consideration into account as well as the former is evident from a remark that he made in his judgment that, if Mr Langridge had not been suffering from mental disability,   he would have no doubt in making an outright order for possession.  The judge, in saying that had in mind not just what had happened but an assessment of the potential for future recurrence of it, went on to consider expressly at paragraphs 61 and 62 of his judgment the impact of the 1995 Act on the decision he had to make:

“61. There is absolutely no substance whatsoever in the Defendant’s assertions that, following the receipt of Dr Holden’s report, the Council did not undertake an assessment of how it should proceed or, having undertaken an assessment, should have decided not to proceed with the case or at least consider alternative methods of the resolution of the case.  The Council had made a careful and proper assessment of its obligations under the Disability Discrimination Act when it became aware that the Defendant might suffer from a disability and proceeded on the basis [that] it should continue action against him on the basis that he would be found to be disabled.  As Mr Skinner [an officer of the council] observed in his affidavit dated 9 May 2005… ‘I note in the course of these proceedings…his solicitor suggested that the Defendant is disabled as defined by the Disability Discrimination Act 1995… Although I have not seen any documentary evidence in this regard, I consider the Council, through myself and my capacity as a Nuisance and Harassment Officer, should consider the possibility that the Defendant is disabled and further consider whether, if I conclude that the Defendant might be disabled, what the Council should do as regards the Defendant’s breach of undertaking.  I am advised that an application for the committal of the Defendant will be seen as “treatment” within the meaning of the DDA’.  He then goes on to make an assessment and to come to the conclusion that further proceedings against the Defendant are entirely justified.  

“62. Nothing that Dr Holden said affected or would have affected this decision which I consider was taken after a proper consideration of all the facts based upon the possibility that the Defendant would be found to be disabled within the meaning of the Disability Discrimination Act.  In any event, I cannot see how any form of alternative resolution would have been possible, given the Defendant’s reluctance to communicate with the Council, a fact that he acknowledged when giving evidence and which he attributed to the various reasons that I have already alluded to.  Furthermore the report of Dr Holden [dated 26 June 2006] for some inexplicable reason was only served on the Council in early August 2006 although it was received by the Defendant sometime previously.  The Council can hardly be criticised for not having conducted a formal assessment, given Mr Skinner’s previous assessment and the fact that this hearing has been in the course of being listed for some time.  Even if I am wrong about all this, the alleged failure of the Council to undertake a fresh assessment following its receipt of the report of Dr Holden would only be one of the matters that I would need to take into account in exercising my discretion …”

9.	So the judge, who went on to grant immediate possession, had well in mind, as had the Council when it first instigated proceedings, that Mr Langridge was suffering in a significant way from mental disability that engaged the 1995 Act and that it was one of the factors which had to be borne in mind, not least because it introduced an element of unpredictability to Mr Langridge’s behaviour that the Council would need to take account of, given the history of what had happened in the past.  

10.	As to the evidence of Ms Croft, who had left the block of flats and was thus no longer a neighbour of Mr Langridge if he were returned there, and as to the nuisance calls to her, the judge took the view that although there was no proof that there had been any  damage to her health, that did not necessarily militate against the bringing of proceedings, given no doubt the potential for further behaviour of the same sort potentially harmful to health.  

11.	In advancing the proposed grounds of appeal, Mr Colville has said as to the first that 17 days of findings of actual acts of nuisance and annoyance over a period of nearly 700 days was not enough to justify the court in taking the view that there should be a possession order, whether immediate or suspended.  He mentioned, as he had to the judge, that many of the acts of nuisance or annoyance on which the Council had relied had occurred when Mr Langridge had not been taking his medication.  For that reason, Mr Colville suggested, the judge might have taken a different course in the knowledge that, by the time of the proceedings, Mr Langridge had begun to take his medication again and for the time being, at any rate, was not seemingly posing so great a threat as he had in the past.  It was at the very least, as Mr Colville submitted, a reason for suspending the order for possession.  

12.	It may be that another judge might have taken a different view if faced with that consideration alone.  I cannot say that his assessment, given his careful conduct of the case and the reasoning in his judgment, was so wrong as to give Mr Langridge a real prospect of success if this matter were to go forward to appeal.  There is a range of judgement that trial judges experienced in the handling of possession actions of this sort should be allowed.  Different judges, equally experienced, may react within that ambit of discretion in different ways, but that does not make this decision, looked at on this point alone for the moment, in my view arguably wrong so as to justify the grant of permission to appeal.  

13.	The second proposed ground upon which Mr Colville relies is that the judge got it wrong in taking the view that the proceedings were objectively justified, having regard to the evidence before him of the mental disability of Mr Langridge.  The judge was of the view, in the passages from paragraph 61 and 62 of his judgment that I have read, that the Council, over a year before the receipt of Dr Holden’s report, took that consideration into account and the extent to which it should bear on any decision to seek the eviction of Mr Langridge.

14.	It is quite apparent from the history of the matter that Mr Langridge was known to be, and to have been, in a highly unstable state, mitigatable only if he took medication prescribed for him for the purpose.  The Council had to assess, among other things, the risk that he might not do so and that there would be a reversion to the acts of nuisance and annoyance that occurred during the period in question.  It was a factor.  It was a factor to which the Council was entitled to have regard.  And the receipt of Dr Holden’s medical report over a year later, confirming in medical terms largely what they knew, did not, it seemed to the judge or indeed to me, introduce any new material that could properly have affected the Council’s decision.  

15.	There is also the point made by the judge that the Council had made its assessment.  It was only very shortly before the proceedings that it was presented with Dr Holden’s report, obtained on behalf of the defendant.  There can be no criticism of the Council’s proceeding on the basis of the information available to it and the consideration it had given to Mr Langridge’s disability at the time, that it had failed to take into account a medical report produced to it a year or so later largely to the same effect.  

16.	The third proposed ground of appeal relates to the particular complaints made by Ms Croft.  Mr Colville has urged upon me that there was no evidence of illness caused to her, and, therefore, that her evidence was a slender basis upon which to consider the matter of nuisance and the potential for similar injury or damage to other tenants in the future if Mr Langridge were allowed to remain.  

17.	I am afraid that that, like the other proposed grounds of appeal in this application, are simply an attempt, albeit well-argued, by Mr Colville, to re‑argue the case on the facts.  That is not the function of the Court of Appeal and I can see no basis on which the court should interfere with the careful analysis and judgment reached on all these three matters and others in this case by HHJ Mithani.  

18.	For those reasons I refuse the renewed application to appeal.

Order: Application refused.