Case No: B2/2004/1595
B2/2004/1596
B2/2004/1597
B2/2004/1598
Neutral Citation Number: [2004] EWCA Civ 1736
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL from MANCHESTER COUNTY COURT
District Judge Saffman
and from EDMONTON COUNTY COURT
District Judge Silverman

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday, 21 December 2004
Before :

LORD JUSTICE BROOKE
Vice President of the Court of Appeal (Civil Division)
LORD JUSTICE MANCE
and
LORD JUSTICE DYSON
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Between :

	(1) North British Housing Association Limited	Claimant/
Respondent	
	- and -		
	Lorraine Matthews	Defendant/
Appellant	
			
	(2) North British Housing Association Limited	Claimant/
Respondent	
	and 		
	Michael Snaith	Defendant/
Appellant	
			
	(3) North British Housing Association Limited	Claimant/
Respondent	
	and 		
	Laila Masood	Claimant/
Respondent	
			
	(4) London and Quadrant Housing Limited	Claimant/
Respondent	
	and 		
	Lee Morgan	Defendant/
Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr Jan Luba QC and Mr James Stark (instructed by Messrs Platt Halpern) for the 1st/2nd/3rd  Appellants
Mr Paul Chaisty QC and Geraint Wheatley (instructed by Messrs Cobbetts) for the 1st/2nd/3rd  Respondents  

Mr Michael Supperstone QC and Zia Nabi  (instructed by Messrs Tyrer Roxburgh & Co) for the 4th Appellant
Mr George Laurence QC and Miss Zia Bhaloo (instructed by Messrs Trowers & Hamlins) for the 4th Respondent
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Judgment

Lord Justice Dyson: This is the judgment of the court.

Introduction
1.	All four appellants were tenants of housing associations under assured tenancies who fell into arrears of rent.  Possession proceedings were started.  There was no dispute that both at the date of the service of the notice of proceedings under section 8 of the Housing Act 1988 (“the Housing Act”) and at the date of the hearing before the district judge, the arrears exceeded the 8 weeks’ limit specified in ground 8 of Part 1 of Schedule 2. On the face of it, therefore, in each case the court was obliged by section 7 to make an order for possession.  In each case, an application was made to the judge for an adjournment of the possession proceedings.  The grounds on which the applications were based differed in point of detail.  But common to them all was the submission that the appellant should be given time to obtain the money to meet the arrears, or at least to bring them below the ground 8 threshold, and thereby enable him or her to defeat the claim under that ground.  All of the appellants were, or had been, in receipt of housing benefit. They said that their inability to pay the rent was caused by maladministration or other unjustified failures by the housing benefit authorities to pay housing benefit.  
2.	In all four cases, the district judge refused to grant an adjournment on the grounds that he had no jurisdiction to do so, or that, if jurisdiction existed, it would have been wrong to exercise it: an adjournment in such circumstances would have undermined the clear intention of Parliament implicit in section 7(3) and ground 8.  The principal issue that arises on these appeals is whether, and if so in what circumstances, the court can grant an adjournment on the grounds that the tenant may be able to obtain funds to pay off arrears of rent by the return date and thereby defeat the claim for possession.  Delays in receipt of housing benefit are common.  The problems illustrated by these four cases are encountered on a widespread scale in county courts throughout the land.  District judges have resolved the adjournment issue in different ways.  There is considerable uncertainty and it is important that this be resolved.  
The statutory framework
3.	So far as material, the Housing Act provides as follows:
“7(1) The court shall not make an order for possession of a dwelling-house let on an assured tenancy except on one or more of the grounds set out in Schedule 2 to this Act …

(2) The following provisions of this section have effect, subject to section 8 below, in relation to proceedings for the recovery of possession of a dwelling-house let on an assured tenancy.

(3) If the court is satisfied that any of the grounds in Part 1 of Schedule 2 to this Act is established then, subject to sub-sections (5A)  and (6) below, the court shall make an order for possession.
..
8(1) The court shall not entertain proceedings for possession of a dwelling-house let on an assured tenancy unless – 
(a) the landlord or, in the case of joint landlords, at least one of them has served on the tenant a notice in accordance with this section …

9(1) Subject to sub-section (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to sub-section (6) below, may 
(a) stay or suspend execution of the order, or
(b) postpone the date of possession
 for such period or periods as the court thinks just.
…
(6) This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house – 
(a) on any of the grounds in Part 1 of Schedule 2 to this Act; or 
	   …”

“SCHEDULE 2

GROUNDS FOR POSSESSION OF DWELLING-HOUSES LET ON ASSURED TENANCIES

Part 1
Grounds on which Court must order possession
…
Ground 8
Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing – 
(a) if rent is payable weekly or fortnightly, at least 8 weeks’ rent is unpaid;
(b) if rent is payable monthly, at least 2 months’ rent is unpaid;
…”
The general power to adjourn 
4.	The county court has the widest general powers to grant an adjournment.  These are derived from the County Courts Act 1984, the rules and practice directions made under the Civil Procedure Act 1997 and the inherent jurisdiction of the court.  
5.	Section 3 of the County Courts Act 1984 provides: “(2) A judge may from time to time adjourn any court held by him, and a district judge may from time to time adjourn (a) any court held by him…”.  
6.	CPR 3.1(1) provides that “the list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.” CPR 3.1(2) provides that “except where these Rules provide otherwise”, the court may exercise any of the powers listed in paras (a) to (m).  Among these is the power to “adjourn or bring forward a hearing” (CPR 3.1(2)(b)).  There is no qualification as to the stage at which proceedings might be adjourned: it may be before or at the hearing.  
Section 9 of the Housing Act
7.	Mr George Laurence QC, who appeared for the London and Quadrant Housing Trust, submits that section 9 provides a complete and self-contained code which defines the power of the court to grant adjournments in claims for possession for a dwelling house let on an assured tenancy.  It impliedly disapplies section 3(2) of the County Courts Act in such cases, and CPR 3.1(2)(b) must be read subject to section 9 and, so read, it has no application to such cases either.  Mr Jan Luba QC, who appeared for the appellants in the first three appeals, takes issue with both propositions.  He submits that, in the absence of clear words, section 9 of the Housing Act should not be construed as having displaced the wide and apparently untrammelled power in section 3(2) of the County Courts Act.  Similarly, if it had been intended that the wide power given by CPR 3.1(2)(b) were not to apply in these cases, that would have been made clear, too.  In short, there is no reason why the general power to grant adjournments should not have survived the enactment of section 9: Ralph Gibson LJ was right when he said in Mountain v Hastings (1993) 25 HLR 427, 438 that he had the “impression” that “section 9 is not dealing with the ordinary power of adjournment which the court has to control and direct the conduct of a trial: it is directed to an extended discretion as there described”.  The description to which he was referring was the heading of section 9 “Extended power of court in possession claims”. 
8.	Why is it necessary to decide whether section 9 provides an exclusive self-contained code? The powers conferred by section 9(1) to (5A) are, if anything, wider than those deriving from other sources. It is, therefore, not necessary to determine in respect of the period before “the court is satisfied that the landlord is entitled to possession” under any of the grounds in Part 1 of Schedule 2 to the Housing Act whether section 9 provides an exclusive, self-contained code or not. We accept that it might appear to be necessary to decide the issue in respect of the period after the court is satisfied that the landlord is entitled to possession. But having regard to what we say about the meaning of section 9(6) at para 36 below, we consider that the issue has no practical relevance. It is for this reason that we do not find it necessary to decide whether the submissions of Mr Laurence (on which we heard only limited argument) are correct.

The power to adjourn before the court is satisfied that the landlord is entitled to possession
9.	The court cannot be satisfied that the landlord is entitled to possession before the date of the hearing, because it is a condition of entitlement to possession under ground 8 that at least 8 weeks’ rent is unpaid at that date.  So what is the date of the hearing?  It may be surprising that it is necessary to ask this question.  But we were told during the course of argument that some district judges take the view that the date of the hearing can be the date fixed for the hearing even if on that date an adjournment is granted without a hearing taking place at all.  In our judgment, this view is plainly wrong.  The date of the hearing is the date when the claim is heard.  
10.	If at that date at least 8 weeks’ rent is unpaid, then on the face of it the landlord is entitled to an order for possession under ground 8.  The timing of the date of the hearing will, therefore, often determine whether the landlord can succeed in his or her claim.  It is common ground that there are circumstances where it is proper for the court to grant an adjournment of the hearing date even though it may have the effect of (a) depriving the landlord of his entitlement to possession (because the tenant pays off sufficient arrears before the adjourned hearing date), or (b) giving the landlord a right to possession which he would not have had if the hearing had proceeded on the date originally fixed (because further arrears have accrued since that date).  The incidents and hazards of litigation can work in different ways.  There is no doubt that it is a perfectly proper exercise of the discretion to adjourn if the case has to be taken out of the list on a certain date because there is no judge available that day, or because there has been overlisting, or because the defendant is prevented by ill-health from attending court.
11.	Other examples were given during the course of argument of circumstances where it may be a proper exercise of  discretion to adjourn the hearing before the court is satisfied that the landlord is entitled to possession.  Thus if the defendant shows that he has an arguable claim for damages which he wishes to rely on as a set-off (see British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 137), and the damages are sufficient to reduce the arrears of rent below the 8 weeks’ limit, that would be a good reason for adjourning the hearing date.  Until the set-off issue has been determined, the court cannot be satisfied that the landlord is entitled to possession. Similarly, where the tenant shows that he has an arguable defence based on accord and satisfaction or estoppel arising from an alleged agreement whereby the landlord accepts an offer by the tenant to pay off the current rent and arrears at a certain rate in return for not pursuing the claim for possession. 
12.	A further example is where the landlord is a public body, and the tenant may have an arguable defence based on abuse of power: the landlord is said to be acting unfairly and therefore unlawfully in pursuing the claim for possession.   Where the court is satisfied that there is a real chance that the tenant would be given permission to apply for judicial review of the landlord’s decision to claim possession, the court may grant an adjournment of the possession proceedings to allow the tenant to take that course: see Manchester City Council v Cochrane (1999) 31 HLR 810.   A yet further example is where, before or at the hearing date, the landlord accepts a cheque from the tenant for a sufficient sum to bring the arrears below the ground 8 threshold, but the cheque has not been cleared by the hearing date.   Since acceptance of a cheque is conditional payment, it may be a proper exercise of discretion to adjourn the claim for possession to see whether the cheque will be honoured: see Day v Coltrane [2003] EWCA Civ 342, [2003] 1 WLR 1379.
13.	In none of these cases is it the purpose of the adjournment to change the substantive position of the parties. The purpose of the adjournment in the 4 examples given in paras 11 and 12 above is not to allow the defendant time to change the factual position and thereby create a defence which he did not have when the hearing was adjourned. Rather, it is to allow him the opportunity to show that as at that date he did have the defence to the claim that he asserted. The effect of an adjournment in such circumstances, however, may be to change the substantive position of the parties: the tenant may use the opportunity afforded by the adjournment to pay a sum sufficient to reduce the arrears to a figure below the ground 8 threshold.  
14.	The question that arises in the present appeals is whether, before it is satisfied that the landlord is entitled to possession, the court has the power to grant an adjournment for the purpose of enabling the tenant to pay off arrears thereby defeating the claim for possession, and, if so, in what circumstances the power should be exercised. A similar question arose in R v Walsall Justices, ex parte W (a minor) [1990] 1 QB 253.  The applicant was a juvenile who was charged with causing grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861.  His trial was fixed for 11 October 1988.  On the date of trial, the prosecution applied for an adjournment on the grounds that, if the trial proceeded immediately and the magistrates decided that the victim did not have sufficient understanding to take the oath by reason of his age, unsworn testimony would, on the law as it then stood, have to be corroborated by other independent evidence which the prosecution could not produce.  The prosecution pointed out that the law would be changed the following day and the law requiring corroboration would be abolished.  The trial was adjourned “in the interests of justice”.  The applicant applied to the Divisional Court for an order quashing the magistrates’ decision.  
15.	The judgment of the court was given by Saville J.  He referred to the situation where the court may grant an adjournment for what he called “extraneous reasons” thereby causing a defendant to suffer from the consequences of a change in the law.  Thus at p 258F he said:
“If for extraneous listing reasons a trial is fixed for the day after rather than the day before a change in the relevant law, we find it difficult to see how a defendant could feel any legitimate sense of grievance, or be able to say that he had been unfairly prejudiced. He might well be regarded as unlucky to have got the later date rather than the earlier, and equally a person whose trial commenced the day before might be regarded as lucky to have his trial when he did, but luck or chance seems to be a rather unsatisfactory foundation for the suggested right of the defendant. Again, if the prosecution in a case sought and obtained an adjournment for quite extraneous reasons (eg the non-availability of an expert through no one’s fault) and the trial then started after rather than before a relevant change in the law, it is difficult to see what injustice would be done to the defendant, nor (to our minds) could it be suggested that, despite a perfectly good reason for an adjournment, it should nevertheless be refused so as to preserve the defendant’s suggested right to be tried on the law as it stood when the trial would otherwise have been held. Yet the result in these examples would be precisely the same as in the present case. In short, in the absence of special circumstances it is difficult to see why in justice a defendant should have the suggested right.” 

16.	The reasoning which led the court to allow the application is contained in the passage starting at p 260D:
“To our minds, the arguments against accepting some unqualified inalienable right or entitlement in a defendant to be tried on the law as it stands on the day which happens to be fixed for his trial, so that it cannot be adjourned if the law will change, are overwhelming. However, that is not the end of the matter. Quite apart from rights vested in the defendant are the duties and responsibilities of the court. It is common ground that it would be unjudicial for a court (as in R v  Boteler (1864) 4B & S 959, 122 ER 718) to refuse to apply the substantive law on the grounds that the court regarded  that law as unfair or wrong. In the present case the magistrates concluded, in effect, that the law as it stood on 11 October 1988 would not do justice (or as much justice) as the law on the following day; and on that basis adjourned the trial. We consider that it must follow that what the magistrates were doing was to pass a qualitative judgment on the existing law and finding it wanting in justice (or sufficient justice) acted as they did. They were therefore doing essentially the same thing as the magistrates did in R v Boteler, namely choosing not to apply the law in force on the basis that they considered that it was lacking in justice. The fact that they did so because they preferred the law as it would be on the following day seems to us to be neither here not there, for the fact remains that the trial did not proceed because the magistrates felt that the law in force on the day fixed for it would not do proper justice. That in our view is not a legitimate basis for ordering an adjournment.”
17.	It seems to us that this reasoning is of application to the present case.  The magistrates were wrong to adjourn the trial for the purpose of enabling the prosecution to take advantage of a future event, namely the change in the law.  That was not a legitimate reason for granting an adjournment.  In our judgment, there is no difference in principle between adjourning a case because it is considered that the law current at the hearing date is unjust, and a different law at a later date will overcome the injustice (case A), and granting an adjournment because the law when applied to the facts which exist at the date of the hearing will lead to an injustice which may be overcome if applied to different future facts (case B).  Either way, the adjournment is designed to achieve a result which the law current at the date of the hearing does not permit.  In case A, the adjournment is to enable a future law to be applied to the same facts; in case B, it is to enable the same law to be applied to future  facts. In principle, an adjournment is not legitimate in either case. We refer at paras 31 and 32 below to the possibility of departing from this principle in exceptional circumstances.  
18.	At this point, we need to refer to Kingcastle Ltd v Owen Owen (Court of Appeal, unreported 19 February 1999).  This was a claim for possession of residential premises.  The defendant was the gay partner of the deceased tenant.  He claimed that he had succeeded to his partner’s tenancy as a member of his family.  The judge adjourned the claim for possession until the first open date after the decision of the House of Lords on the application for leave to appeal in the case of Fitzpatrick v Sterling Housing Association.  The leading judgment was given by Hirst LJ.  He referred to the Walsall Justices case, but said: “I do not think that has much bearing on this case since it was in the criminal context.”  It was held that the judge was entitled to grant an adjournment in those circumstances.  With respect to Hirst LJ, we have difficulty in seeing why the fact that the Walsall Justices case was in the criminal context affects the principle which the decision supports.  It is to be noted that in his speech in Bristol City Council v Lovell [1998] 1 WLR 446, Lord Hoffmann referred to the Walsall Justices case (at p 454F-G) as illustrative of a broad principle.  Since Lovell was a civil case, he plainly did not consider that the reasoning in the Walsall Justices case was applicable only to criminal cases.  We refer to the Lovell case in more detail at paras 27 and 28 below.  
19.	We should add that there is further support for the Walsall Justices approach in another Divisional Court case, R v Dudley Magistrates’ Court, ex p Hollis (unreported, 25 November 1997).  Moses J said: 
“The wide discretion as to whether to grant an adjournment conferred by section 10 and section 54 of the Magistrates’ Court Act 1980 cannot, usually, be impugned.  But it is a power which must not be exercised in a manner which undermines the statute under which the proceedings are brought or in a way which deprives a litigant of rights conferred by that statute.  An adjournment cannot be granted if the only purpose is to avoid the consequences which the law provides will follow, should the hearing continue.”
This passage was referred to with evident approval by Lord Lloyd of Berwick in Lovell.  It is true that it was not referred to in any of the other speeches, but it is entirely consistent with what was said by the other members of the House of Lords  and in our judgment it is a correct statement of principle.
20.	In support of his submissions, Mr Luba relies on a number of authorities which, he submits, show that the court will in the interests of justice adjourn the hearing of a claim in order to afford a defendant a defence which he does not have at the date of the first hearing.  None of these cases concerns the adjournment of a claim for possession under the Act.  But Mr Luba relies on them as examples of the broad principle for which he contends.
21.	In Birmingham Citizens Permanent Building Society v Caunt [1962] 1 Ch 883, Russell J had to consider whether there was jurisdiction in the court to refuse to make an order for possession in favour of a legal mortgagee under an instalment mortgage under which, by reason of default, the whole money had become payable.  After conducting an extensive review of the authorities, he concluded at p 912 that the court “had no jurisdiction to decline the order or to adjourn the hearing whether on terms of keeping up payments or paying arrears”.  He added:
“To this the sole exception is that the application may be adjourned for a short time to afford to the mortgagor a chance of paying off the mortgagee in full or otherwise satisfying him; but this should not be done if there is no reasonable prospect of this occurring.  When I say the sole exception, I do not, of course, intend to exclude adjournments which in the ordinary course of procedure may be desirable in circumstances such as temporary inability of a party to attend, and so forth.”

22.	In our judgment, this authority does not assist in the resolution of the issue that we have to decide.  The exception identified by Russell J was one which the law of equity had created in order to meet the needs of justice in the special context of mortgage law.  Of particular significance is the fact that there was no relevant statutory framework against which the exception fell to be measured.  As Mr Paul Chaisty QC points out, the law did not recognise that mortgagees had an unqualified right to possession: the right to possession itself was subject to the power in the court to grant a short adjournment for the stated purpose.  
23.	Mr Luba next drew attention to R v a Circuit Judge (sitting at Norwich County Court) ex p Wathen (1976) 33 P & CR 423.  In that case, the lessors brought an action against the lessee for arrears of rent, forfeiture of the lease and possession of the premises.  At the hearing, the lessee, who admitted the arrears, advanced no defence and did not seek an adjournment.  The judge, of his own motion, adjourned the hearing because the lessee, although without means at the time, had an expectation of receiving certain monies under a trust of an uncertain amount at an uncertain date.  The hearing was resumed at the adjourned date, and the judge adjourned it for a second time.  The lessors applied for an order of mandamus requiring the judge to hear and determine the claim.  It was held by the Divisional Court that the judge was entitled to adjourn the action on the first occasion, but not on the second.  Section 191(1) of the County Courts Act 1959 lay at the heart of the matter.  So far as material, this provided: 
“Where a lessor is proceeding by action…to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent, the following provisions shall have effect:- … (b) if … the court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture, the court shall order possession of the land to be given to the lessor at the expiration of such period, not being less than four weeks from the date of the order, as the court thinks fit, unless within that period the lessee pays into court all the rent in arrear and the costs of the action….” (emphasis added).

24.	The Divisional Court held that the use of the word “shall” required the judge to proceed forthwith to judgment for a plaintiff who had without doubt established his claim to relief under the section.  Nevertheless, the judge was entitled to adjourn the claim provided that he was acting “judicially”.   On the facts of that case, in adjourning the claim on the first occasion, the judge was acting judicially.  As Watkins J put it at p 426:
“The view that I have formed is that, paying particular regard to section 191 of the County Courts Act 1959, the judge cannot be criticised for taking it into his own hands on the first occasion to adjourn the matter on the basis that he was not then in a position to be able to decide with any degree of accuracy the time which he would give to the lessee to fulfil the term relating to the rent, having regard to the additional factor that he could not impose a term of less than 28 days anyway.”
25.	As he pointed out at p 427, “the allowance of time is a discretionary matter”, although this did not diminish the force of the use of the word “shall” in the section.  It is for this reason that Watkins J said: 
“I do not believe that a judge can inevitably be criticised for not proceeding to judgment forthwith, for example, on the first occasion when the matter comes before him if something of materiality remains uncertain as a matter of evidence.  To adjourn a case on virtually the same ground again is, however, I think impermissible.  A judge, faced with the problems which confronted the judge here, should act strictly in accordance with the law as laid down in section 191 and give the plaintiff the relief which  he seeks.”
26.	In our judgment, this decision does not assist the appellants’ argument.  If anything, it points the other way.  There can be no doubt that, but for the provision which required the court to specify the date for possession, the court would have held that to grant an adjournment on the facts of that case was not a judicial exercise of discretion.  The defendant had no defence to the claim at the date of the hearing, and the word “shall” had to be given its true effect.  An adjournment would have served no purpose other than to deprive the claimant of the right to possession which he had established. But the provision which required the court to specify the date for possession gave the court a discretion.  If the judge took the view that he could not exercise that discretion on the material that was before him at the hearing, then, said the Divisional Court, he was entitled to adjourn the matter to give time for that material to be produced.   There is no comparable provision in the Housing Act.  In our judgment, the reasoning in ex p Wathen suggests that, in the absence of some special statutory provision, once a claimant has established his entitlement to the relief that he seeks, the court should not adjourn the case.
27.	The next case relied on by Mr Luba is the Lovell case to which we have already referred. The defendant was the secure tenant of a house owned by the plaintiff council.  He claimed to exercise his statutory right to buy the house.  The plaintiffs admitted his right to buy and served a notice on him stating the price and other terms.  They then served a notice on him informing him that they intended to make a claim for possession.  On 21 September 1994, they started possession proceedings.  On 14 October, the defendant accepted the plaintiffs’ terms for the exercise of his right to buy.  On 4 January 1995, he amended his defence to the possession proceedings to add a counterclaim for an order that the plaintiffs convey the house to him.  He then applied to the county court pursuant to his counterclaim for an injunction.  The district judge refused the injunction because he could not be satisfied at that stage that the tenant had come with clean hands.  He stressed that he was not adjourning the application for an injunction but that was the effect of his order.  The result was that the claim for possession would be tried first.  The circuit judge allowed the defendant’s appeal, and the Court of Appeal dismissed the plaintiffs’ appeal, holding that it was bound by previous authority to hold that the district judge had no discretion to refuse the application.  The House of Lords held that the district judge did possess such a discretion, and remitted the matter to the county court for a rehearing of the defendant’s appeal from the district judge.  The leading speech was given by Lord Hoffmann.  He said at p 454B:
“The discretion with which we are concerned in this case is of an altogether different nature. It has nothing to do with the fact that the remedy claimed by Mr Lovell happens to be an injunction. It is the administrative discretion of the court to regulate its business and to decide when and in what order it will hear the cases which come before it. In the present case, District Judge Bolton exercised his discretion to refuse to hear Mr Lovell’s interlocutory application in advance of the trial. The same question would have arisen if Mr Lovell and the council had commenced separate proceedings and Mr Lovell’s application had come on first. Would the court have had a discretion to adjourn his application until it had heard the council’s claim for possession?

The court has an inherent jurisdiction to regulate its business, but the power of the county court to adjourn proceedings is codified in Ord. 13, r.3(1) of the County Court Rules:

The court may at any time and from time to time, upon application or of its own motion, by order adjourn or advance the date of the hearing of any proceedings.
	
This would appear to confer a broad discretion which can be exercised in order, among other things, to ensure that related cases are heard in the order which justice and convenience requires. Obviously the discretion must be exercised judicially and not for the purpose of defeating the policy of the statute or the rights which it confers upon the tenant. So the question is whether Part V of the Act of 1985 expressly or impliedly excludes the ordinary discretion conferred by Ord 13, r. 3(1) and confers upon the tenant a procedural right to have his application heard as soon as he can bring it before the court.

There is certainly nothing in the Act which expressly confers such a right. The fact that the tenant may be entitled to an injunction at the time when he wants his application heard does not mean that he must be entitled then and there to have it determined. If such a right existed, the consequences would be extremely arbitrary: compare Reg. v Walsall Justices, Ex parte W. [1990] 1 QB 253. The substantive outcome of the tenant’s application would depend upon the accidents of the court lists or a race to judgment between him and the landlord. It would be in the interests of the tenant to delay the hearing of an action for possession while he made his application for an injunction. Strictly speaking, it would be not so much a race to judgment as a race to execution of the judgment. Until the grant has actually been made, the tenant remains a secure tenant (see section 139(2)) and the action for possession can, in theory at least, continue. If there is some delay in completion (for example, because the tenant has difficulty in raising the money) the landlord may still be able to obtain his possession order and defeat the tenant’s claim at the last minute. Mr Woolley rightly accepted this to be so. My Lords, I very much doubt whether Parliament could have intended the enforceability of the right to buy to depend upon such games of chance. It seems to me much more likely that the courts were intended to use their ordinary discretion, whether under Ord 13, r. 3(1) or the inherent jurisdiction, to hear the applications at whatever time and whichever order appeared just and convenient.” 
	
28.	The issue of deciding the order in which related cases should be heard is one of case management.  The broad principle enunciated by Lord Hoffmann was directed to that issue.  But it can be said that, in substance, the effect of the decision of the district judge was to enable the council to mount a defence which was not otherwise available when the tenant’s application came on for hearing.  That was how Lord Lloyd of Berwick saw it: see p 449B-E.  Mr Luba relies on the observations of Lord Hoffmann in support of his submission that the broad discretion to grant an adjournment should be exercised justly.  That submission is uncontroversial and plainly correct. The real question is what that requires in circumstances such as arose in the present appeals.  It seems to us that the importance of the observations of Lord Hoffmann for present purposes is that he regarded it as obvious that the discretion must be exercised judicially and not for the purpose of defeating the policy of the statute or the rights which it confers on tenants.  Applied to the circumstances of the present cases, this means that the power to adjourn must not be exercised so as to defeat the policy of the Housing Act or the rights which it confers on landlords.  
29.	The final authority relied on by Mr Luba is Kingcastle to which we have referred at para 18 above.  Hirst LJ pointed out that the preponderance of authority was to the effect that a court of first instance has a duty to try cases and apply the law as it then appears.  He said that there was no warrant for laying down a hard and fast rule that an adjournment could never be granted until the outcome of an application for leave to appeal to the House of Lords was determined.  Each case must depend on its own facts.  
30.	It follows from this survey that, far from providing support for Mr Luba’s submissions, the authorities tend in our judgment to show that the court should not adjourn a hearing date for the purpose of enabling a defendant to rely on a subsequent change in the law or the facts and thereby defeat the claim.
31.	Does it follow that it can never be a proper exercise of the court’s discretion to grant an adjournment for the purpose of enabling a tenant to reduce the arrears to a figure below the 8 weeks’ threshold before the adjourned hearing date?  During the course of argument, a number of extreme examples were considered.  Suppose the tenant is on his way to court on the hearing date carrying all the arrears of rent in cash in his pocket, and he is robbed and all his money is stolen.  Or suppose the tenant is in receipt of housing benefit, and the housing benefit authority has promised to pay all the arrears of housing benefit, but a computer failure prevents it from being able to do so until the day after the hearing date.  Examples of this kind can be multiplied.  
32.	On behalf of the respondents it is submitted that, even in such cases, there is no power to grant an adjournment: the principle that an adjournment may not be granted for the purpose of enabling a tenant to pay off sufficient arrears to defeat the claim for possession is absolute. But the power to adjourn before the court is satisfied that the landlord is entitled to possession has not been abrogated by the Housing Act. Parliament could have insisted that the power to adjourn should never be exercised if the sole reason for the adjournment is to enable the tenant to reduce arrears of rent below the ground 8 threshold and thereby defeat the claim for possession. It chose not to do so. Subject to the effect of section 9(6), therefore, the jurisdiction to grant adjournments remains. We acknowledge therefore, that, although there are powerful arguments in favour of the absolute principle contended for by the respondents, there may occasionally be circumstances where the refusal of an adjournment would be considered to be outrageously unjust by any fair-minded person. We hold that the power to adjourn a hearing date for the purpose of enabling a tenant to reduce the arrears to below the ground 8 threshold may only be exercised in exceptional circumstances.  Cases such as those to which we have referred in para 31 above might fall into this category.  But the fact that the arrears are attributable to maladministration on the part of the housing benefit authority is not an exceptional circumstance.  It is a sad feature of contemporary life that housing benefit problems are widespread. To a substantial extent, these are no doubt the product of lack of resources.  But we do not consider that the non-receipt of housing benefit can, of itself, amount to exceptional circumstances which would justify the exercise of the power to adjourn so as to enable the tenant to defeat the claim.  
33.	We acknowledge that this conclusion will lead to tenants who are in receipt of housing benefit having no defence to a claim for possession in circumstances where they are not at fault.  The statutory scheme is, therefore, potentially draconian in its application.  

34.	Parliament could have alleviated the position of tenants in a number of ways.  Instead, in the Housing Act 1996 it reduced the threshold period for ground 8 from 13 weeks to 8 weeks and did not mitigate the consequences of that reduction by making any special provision to deal with the particular and well-known problems occasioned by non-payment of housing benefit.  It is of interest that during the debate on the Housing Bill on 30 April 1996, Mr Simon Hughes MP proposed an amendment to clause 88 that there be added at the end of ground 8 a proviso that no order for possession should be made under that ground if the court was satisfied that prior to the date of the hearing the tenant had made a claim for housing benefit in respect of the period to which the arrears relate which had not been finally determined by the local housing authority.  The Minister responded that the local housing authorities were under a statutory duty to process claims within 14 days and rejected the proposal.  
35.	Mr Luba submits that an unqualified power to adjourn should be acknowledged to exist: it should not be circumscribed in the way that we have described.  He says that it should be left to the good sense of the judges to decide applications for adjournments in an appropriate and just manner, balancing the prejudice caused to the landlord by the grant of an adjournment against the prejudice caused to the tenant by its refusal.  We accept that in the case of routine applications for an adjournment of a case-management kind, that is entirely the correct approach.  So too where the court is considering whether to adjourn in circumstances such as those described at paras 10 to 12 above.  But an adjournment whose sole purpose is to await a future event which will defeat a claim is entirely different.  If the power to grant adjournments in such circumstances were to be recognised, how would the judge decide whether it was right to grant an adjournment?  Would the court be required to investigate the dealings between the housing benefit authority and the tenant in order to determine whether it was the fault of the tenant or the authority that the housing benefit had not been paid? And what if the fault lies in part with the tenant and in part with the authority?  And how would the landlord be able to respond to such an application of which, in many cases, there would not have been prior notice? If the door were opened to applications for adjournments founded on housing benefit problems, there would be a real danger that the housing lists would become congested with contested applications for adjournments.  These are all factors which militate against the recognition of a broad discretion of the kind for which Mr Luba contends. But we base our conclusion on principle rather than upon these pragmatic considerations.
Power to adjourn after the court is satisfied that the landlord is entitled to possession
36.	The language of section 9(6) is quite clear and must be given effect.  Once the court has expressed the conclusion that it is satisfied that the landlord is entitled to possession, there is no power to grant an adjournment in any circumstances.  One question that arises is at what point in the process does the court become satisfied.  It has been suggested that this occurs as soon as the judge says at the hearing that he is satisfied. This may happen when, after hearing from the landlord or landlord’s representative, the judge simply says that the arrears have been proved.  It is pointed out by Mr Luba that the tenant, who often is not represented, may then say to the judge that he or she has a defence: is it too late at that moment for the judge to grant an adjournment?  In our view, clearly not.  The court is not “satisfied” within the meaning of section 9(6) until the judge has given a judgment and effect is given to that judgment in a perfected order of the court.  A judge can correct a judgment at any time before the court order is sealed or otherwise perfected: see Stewart v Engel [2000] 1 WLR 2268.  But once the order has been drawn up, the judge has no function left to perform.  Section 9 draws a clear distinction between what the court may do before an order is made (section 9(1)) and after an order has been made (section 9(2)).  
North British Housing Association v Lorraine Matthews
37.	The weekly rent at the material time was £69.34. At the date of service of the notice of proceedings under section 8 of the Housing Act on 1 March 2004, there were rent arrears of £631.02. The arrears at the date of the hearing before District Judge Saffman in the Manchester County Court on 9 June 2004 were £771.94. It was common ground that the arrears of rent at both dates at least 8 weeks’ rent was unpaid. Ms Matthews had been in receipt of housing benefit which covered the full cost of her rent until 4 January 2004. Between that date and 4 March 2004, she received no housing benefit. It is during that period that the arrears of rent built up. At the hearing before the judge, Mr Stringer, the duty solicitor who represented Ms Matthews, applied for an adjournment of the proceedings on the grounds that it was her intention to appeal against the decision of the housing benefit authorities not to backdate her housing benefit to 4 January 2004. The judge refused to grant the adjournment. He had regard to the decision of His Honour Judge Platt in London and Quadrant Housing Trust v Sandra Ison (unreported, 8 September 2003), and in particular the following statement:
“A judge who adjourns the hearing of a ground 8 possession claim solely in order to allow a defendant an opportunity to defeat that claim, whether by extracting payment from the housing benefit authority or from any other source, is choosing not to apply the law in force at the date of the hearing on the basis that he considers it to be lacking in justice. This is simply not a proper exercise of judicial discretion. It is an interference with the statutory scheme which gives rights to both landlords and tenants. If the scheme gives rise to injustice it is for Parliament and not for the court to address that issue.”

38.	The judge concluded that in the light of the fact that he was satisfied that the grounds for a mandatory order under section 8 had been made out a possession order must be made. Accordingly, he refused the application for an adjournment, and made the order.  On 18 July, Ms Matthews received backdated housing benefit of £899.45 which enabled her to restore her rent account with the claimant to credit.
39.	In our judgment, the judge was right not to exercise his discretion to adjourn the case.  The housing benefit problems encountered by Ms Matthews did not amount to exceptional circumstances such as could have justified the grant of an adjournment.
North British Housing Association v Michael Snaith
40.	The weekly rent at the material time was £60.91. At the date of service of the notice under section 8 on 24 February 2004, there were rent arrears of £660.88. The arrears at the date of the hearing before District Judge Saffman in the Manchester County Court on 9 June 2004 were £1574.48. It was common ground that on both dates at least 8 weeks’ rent was unpaid.  Mr Snaith had been entitled to housing benefit which covered the full cost of his rent at all material times. At the hearing before the judge, Mr Stringer explained to the judge that it was not Mr Snaith’s fault that housing benefit had not been paid. His case was that he had received a reclaim form and that he had returned it promptly by post in the pre-paid envelope provided by the housing benefit authority. He discovered that housing benefit had not in fact been paid only when he received the claim form for possession. The basis of the application for an adjournment was that “application would be made for housing benefit to be back dated to cover the gap period, which would reduce the arrears or extinguish them, but certainly reduce them below the threshold for ground 8”. (para 2 of the judgment). District Judge Saffman refused to grant the application for an adjournment in reliance on the decision of Judge Platt to which we have already referred. As in Mrs Matthews case, the arrears of housing benefit were paid into the rent account shortly after the hearing before the district judge.
41.	For the same reasons as we have given in relation to the appeal of Ms Matthews, the judge was right not to accede to the application to adjourn the case.
North British Housing Association v Laila Masood 
42.	The weekly rent at the material time was £41.75. At the date of service of the notice under section 8 on 22 March 2004, there were arrears of £388.82. At the date of the hearing before District Judge Saffman on 9 June 2004, the arrears were £579.32. She had been in receipt of housing benefit until she obtained part time employment. Thereupon housing benefit payments ceased. She was later advised that she had been entitled to housing benefit even during the time of her part-time employment. She obtained reclaim forms for housing benefit and was told that she would be entitled to full back-dated housing benefit payment. At the hearing before the district judge, Mr Stringer applied for an adjournment on the grounds that Ms Masood was entitled to housing benefit for the period covered by the arrears and that this was going to be paid so that the arrears would be extinguished or, at any rate, reduced to well below the ground 8 threshold. Once again, relying on the decision of Judge Platt the judge concluded that it was not appropriate to adjourn the claim, since the statutory grounds had been made out. As in Mrs Matthews case, the arrears of housing benefit were paid into the rent account shortly after the hearing before the district judge.
43.	For the same reasons as we have given in relation to the appeals of Ms Matthews and Mr Snaith, the judge was right not to adjourn the case.
London & Quadrant Housing Trust  v Lee Morgan
44.	The weekly rent at the material time was £53.41.  At the date of the service of the notice on 18 June 2003 under section 8, the arrears were £534.10.  At the date of the hearing on 27 April 2004 before District Judge Silverman in the Edmonton County Court, the arrears were £1091.65.  On both dates more than 8 weeks’ rent was unpaid.  Mr Sterlini appeared on behalf of Mr Morgan.  At the outset of the hearing, he applied for an adjournment.  He explained to the judge that Mr Morgan had been on full housing benefit until November 2003, and that housing benefit had not been paid in respect of the period after 7 December.  Mr Morgan had appealed against the withholding of benefit, but the appeal had not yet been determined.  Pending the outcome of the appeal, Mr Sterlini told the judge that:
“Mr Morgan made an arrangement with the landlords to start paying towards the arrears, and it was an agreed £5 per week.  He has made a total of £45 payment.  In addition to that, he has set up a standing order with his bank to pay £270 per month, the first payment going out on 1 May….”
He submitted that the judge should not follow the decision of Judge Platt, and continued:
“As I have said, I would not normally make a submission for that discretion [to grant an adjournment] to be exercised, other than in exceptional cases. I say this is exceptional for several reasons: the first is that the defendant has been making payment, and made an agreement; the second is that he has made an arrangement to start paying the current rent plus substantially more in any event so that the money would be regularly coming through; but, perhaps most important, he has submitted an application against the refusal of housing benefit, and it has not been determined.”
45.	In refusing the application for an adjournment, District Judge Silverman said:
“3. I am prepared for the sake of argument to accept that Mr Morgan’s position is exceptional. It seems that he is a victim of, to say the least, maladministration on the part of the housing benefit authorities, and that as a consequence of that his position at these premises has been prejudiced insofar as had his benefit been handled properly, it may well be that his arrears would be less than the Ground 8 figure.
4. However, I am not persuaded, I am afraid, that I do have any discretion. The law, in my view, is properly summed up by His Honour Judge Platt in London & Quadrant Housing Trust v Ison in the Romford County Court. It is quite clear that within the Housing Act 1988, Section 8, Ground 8, the procedure for obtaining possession makes it clear that where there are arrears at the date of the hearing, at least eight weeks – and there were such at the date of service of the notice – the Court does not have a discretion, and that requests for adjournment in order to improve one’s position by obtaining time to make payment is not a proper basis for granting an adjournment, whatever the Court’s sympathies may be for a tenant. In this case, I have considerable sympathy for the Defendant. However, Parliament has decreed that where a landlord is able to prove the arrears under Ground 8, then possession has to be granted. On that basis I do not consider that I have jurisdiction to grant the adjournment sought, and therefore the hearing will proceed.”
46.	The first ground of appeal advanced by Mr Michael Supperstone QC on behalf of Mr Morgan is that the judge erred  in holding that he had no power to adjourn the claim in circumstances where it was alleged that an agreement had been made between the parties relating to the arrears of rent.  If on further investigation as to the terms of the agreement it was found that the claimant had agreed, despite ground 8 being satisfied, not to take possession proceedings on payment by Mr Morgan of the current rent and the agreed amount towards the arrears, the claimant would be precluded from relying on ground 8.  
47.	Mr Supperstone submits that a credible case was advanced on behalf of Mr Morgan that an agreement had been made which had that effect.  And yet the judge did not even refer to this in his judgment although it was one of the three points relied on as making the case sufficiently exceptional to justify an adjournment.  It is unfortunate that the judge did not refer to the point in his judgment, but we do not find it at all surprising that this should have happened in view of the huge pressure under which district judges work, particularly on housing list days.  It is most unlikely that the judge simply overlooked the point.  It is probable that he considered the point and decided that it had no substance.  On the basis of the exiguous material placed before him by Mr Sterlini, the judge was plainly justified in reaching that conclusion.  The fact that an agreement had been made whereby Mr Morgan was to pay £5 per week off the arrears is not, without more, evidence that the claimant had agreed that, provided that the agreement was honoured, it would not continue with the proceedings for possession.  Nor did the fact that Mr Morgan had made an “arrangement” necessarily make any difference.  Mr Sterlini did not say when the arrangement had been made, when it was to take effect and whether the claimant was aware of it, let alone had agreed to it.  
48.	Our conclusion on Mr Supperstone’s first ground of appeal, therefore, is that the judge was entitled to refuse to agree to an adjournment to enable the possibility that Mr Morgan might have a defence based on the alleged agreement and/or arrangement to be investigated.  If an adjournment is to be granted on the grounds that the defendant may have a defence to the claim for possession, it should only be done on the basis of material which shows that he or she has a defence which has a real prospect of success.  We have examined a number of the underlying documents in this case.  These show that Mr Morgan paid £5 on 27 February 2004, £20 on 6 and 8 April, £80 on 11 May, and that £270 was paid by standing order on 10 May.  It would seem, therefore, that by the date of the hearing on 27 April Mr Morgan had not been making regular payments of £5 per week and that the arrangement to pay £270 per month was a unilateral arrangement which was first implemented after the date of the hearing.  There is nothing in this material to suggest that Mr Morgan had an arguable defence based on estoppel or accord and satisfaction.
49.	Mr Supperstone’s third ground of appeal is that the judge should have adjourned the claim because a possession order would violate Mr Morgan’s rights under article 8 of the European Convention on Human Rights, since, by reason of the agreement/arrangement to which we have already referred, there was no unqualified right to possession in the landlord.  As Mr Supperstone recognises, this ground of appeal must fail if, as we have held, the first ground fails.  
50.	His second proposed ground of appeal is complex.  The primary way in which Mr Supperstone seeks to put forward this new ground is to submit that having determined that (a) the appellant’s position in respect of the arrears was exceptional, (b) he was the victim of maladministration by the housing benefit authority, and (c) if the housing benefit claim had been processed correctly, his arrears would have been less than the ground 8 threshold, the judge should have directed himself that (i) on the facts of this exceptional case, and (ii) where the claimant was a social landlord and arguably a functional public authority and the court was itself a public authority, a failure to adjourn the claim for possession would inevitably lead to a possession order being made under ground 8 and this would be a breach of the appellant’s rights under article 8.  Accordingly, he should have adjourned the claim for possession.
51.	During the course of the appeal, Mr Supperstone drafted an additional and alternative way of putting ground 2.  This (as later amended) was as follows:
“Further or in the alternative, where it was arguable that on the date of the hearing:
(i) the appellant was the victim of maladministration by the housing benefit authority;
(ii) if the appellant’s housing benefit claim had been processed correctly his arrears would be less than the amount required to establish ground 8;
(iii) the respondent was a registered social landlord;
(iv) the respondent was aware of (i) and (ii) above; and
(v) a failure to adjourn the claim for possession would lead to a possession order being made under ground 8;
the judge should have adjourned the claim for possession on the basis that in the above circumstances:
(a) the decision of the respondent to proceed with the possession claim was arguably irrational and/or otherwise unlawful, and/or
(b) the respondent being arguably a functional public authority, an order for possession would be a breach of the appellant’s article 8 rights under the Convention.”

52.	At first, Mr Laurence was inclined not to object to this court giving Mr Morgan permission to amend his notice of appeal so as allow him to advance the first way Mr Supperstone seeks to put forward this ground of appeal.  But when the second formulation of the point appeared after the short adjournment on the second day of the appeal, he objected to the introduction of ground 2 altogether.  He had not come prepared to argue the important question whether a registered social landlord is or may be a functional public authority or whether the decision of a registered social landlord to start or continue with proceedings for possession is susceptible to judicial review if it knows that the reason why the tenant has fallen into arrears of rent is maladministration by a housing benefit authority.  Moreover, Mr Laurence submits that the questions raised by the proposed ground 2 (in both versions) would involve issues of fact which were never canvassed in the court below.  There would need to be evidence of the relationship between the landlord and the authority, and how the landlord deals in practice with housing benefit problems, as well as evidence of the alleged maladministration by the authority in this case and the landlord’s knowledge of it.  None of this was explored in the court below.  It is true that the judge was prepared to assume that Mr Morgan’s case was “exceptional” and that he was the victim of maladministration.  But he made no finding or assumption that the claimant was aware of the maladministration.  Still less did he consider whether it was a functional public authority.  Convention issues were simply not in play before him.
53.	We are in no doubt that we should not give Mr Supperstone permission to amend his notice of appeal in order to argue these points.   We have not heard full argument and do not therefore wish to say anything to indicate whether we consider that they have any substance.   If on some future occasion, Mr Supperstone’s argument, or some variation of it, is advanced, the district judge may be persuaded to adjourn the claim to enable the tenant to seek judicial review of the registered social landlord’s decision to start or continue with his claim for possession.  If permission were given to the tenant to apply for judicial review, the court could hear full argument on these issues and give its decision.  But for the reasons that we have given, it would be wrong to allow this tenant to take these points so late in the day and in such a way as would deny the landlord the opportunity of dealing properly with them.
54.	For the reasons that we have given, the judge was right to refuse to grant an adjournment in this case.
Concluding Comments
55.	Before we end this judgment, we believe we should say a little more about the facts in the first three of these cases (based largely on statements the defendants made a few weeks after the possession orders were made), and then add some concluding comments.
56.	Ms Matthews has been in receipt of income support and housing benefit since her husband left her two years earlier.  Her three children and a baby grandchild lived with her.  Her housing benefit covered her full rent and was paid direct to her landlords.  She had to send a reclaim form to the benefits office every six months to confirm that her circumstances had not changed.  She says she posted a reclaim form to them just after Christmas 2003.
57.	On 1st March 2004 notice seeking possession was served, alleging rent arrears of £631.02.  She rang the landlord’s housing officer twice, asking her to call back, but she never did.  When she called at the housing benefit office, she was told her reclaim form had not been received, and she filled in another one.  She says that she was assured that rent would be paid from that day, but there might be a problem with the rent arrears “because it was last year”.  She was not asked to contribute towards the arrears (as was the case with council tax), and she thought everything would be all right.  She had had a similar experience two years earlier when her reclaim form had been mislaid.  Arrears of about £1,800 were eventually paid off on that occasion, and there was no threat of eviction.
58.	She was later told by her landlords that her rent account was still in arrears.  She went again to the benefits office and was told that the computer showed that the cheques had been sent the previous day, and that there should not be a problem.  When she went to court she was shocked to learn that the benefits office had still not made payment for the period between 4th January and 4th March 2004 and that it was too late to do anything about it now.  She, her three children, and her baby grandchild, therefore faced eviction.
59.	Mr Snaith lived on his own.  He had suffered problems with his health for a long time, of which his landlords were aware.  As with Ms Matthews, he had to send a housing benefit reclaim form to the benefits office from time to time. His reclaim form got mislaid, too, so that the regular flow of housing benefits payments abruptly stopped.  Although the claimants produced a certificate stating that notice seeking possession was delivered by hand to his house on 1st March 2004, he says he experienced trouble receiving the post.  He maintains that he knew nothing about the arrears until the possession claim form, dated 8th April, was served.  He then went to the benefits office and filled in a second reclaim form.  In a statement dated 28th June 2004 he says he had heard nothing from them yet.  When the possession claim form arrived from the court he says that, like Ms Matthews, he rang up the landlords several times and left messages, but they never called back.  The benefits office told him to go to the county court to seek an adjournment a week before the hearing, but when he made that application to the county court office it was listed to be heard on the date already fixed for the hearing itself. He suffers from depression and he says he contemplated suicide at the thought of possibly being evicted.
60.	Ms Masood’s difficulties arose when she got a part-time job for 10 hours per week.  She says she handed in a reclaim form for housing benefit on about 8th March.  She, too, experienced difficulties over receiving incoming mail (which was just thrown into a communal entrance by the postman), and she says she knew nothing about any rent arrears until she received the possession claim form from the court which was served on 19th April.  She, too, rang the landlord’s housing officer (four or five times), but her calls were never returned.  Her part-time job ended on 27th May and she did not seek another one because of the problems created by part-time work, particularly in relation to housing benefit.  In due course a housing benefits officer told her that she could not understand why her benefit had been stopped.  She should not have had to reclaim it, she should not have been advised to submit a new claim, and she should receive a full backdated housing benefit payment.  She, too, faced eviction.
61.	Stories like these will be very familiar to district judges in inner city areas like Manchester, where very many tenants of registered social landlords are dependent on the efficiency of their local housing benefits office if they are to avoid eviction.  On each occasion things seem to have gone wrong when a new reclaim form was required (or apparently not required, in Ms Masood’s case).  Two of the three tenants say that they did not see the notice seeking possession because of difficulties over incoming mail.  They all say that when they became aware that the flow of housing benefit had stopped, they rang up the landlord’s housing officer more than once, but she was never at the end of a telephone, and she never returned their calls.  On each occasion the benefits office proved unable to correct the position by the time the possession claim was heard, with the rent more than eight weeks in arrears in each case.  In each case the district judge felt obliged to make an order for possession, and we have felt obliged, as the law now stands, to dismiss their appeals.   
62.	In Regulatory Circular 07/04 dated July 2004 the Housing Corporation has set out its expectation of housing associations when working to prevent or respond to breaches of tenancy.  In para 1.2 it says that eviction should be retained as a last resort.  In para 3.1.1., which is headed “Housing Benefit”, it says:
“Possession proceedings for rent arrears should not be started against a tenant who can demonstrate that they have (1) a reasonable expectation of eligibility for housing benefit; (2) provided the local authority with all the evidence required to process a housing benefit claim; (3) paid required personal contributions towards the charges.  Associations should make every effort to establish effective ongoing liaison with housing benefit departments and to make direct contact with them before taking enforcement action.  A certificate should be obtained, if possible, to confirm that there are no outstanding benefit enquiries, according to Department of Work and Pensions good practice guidance.”
63.	The history of these three cases, (and we only have the tenants’ side of the story) appears to show that where the tenant does not know if housing benefit is or is not being paid because payment is made direct to the landlord association by the benefit authority, there continues to be a need for liaison between a registered social landlord and a local housing benefit department after proceedings for rent arrears have been started.  In the first two of these cases, if the landlords had made enquiries of the housing benefit department as the rent arrears started to mount, they would have been told that it was the tenants’ fault for not delivering a housing benefit reclaim form.  If the landlords had then checked with the tenants, they would have told them they posted the reclaim form weeks ago.  The moral of this unhappy saga seems to be that whatever might have been the position in 1996 (see para 34 above) a housing benefits department cannot now be relied on to rectify matters before a possession claim is heard; that the Housing Corporation may consider it wise to expand its advice about the need for effective liaison with housing benefit departments right up to the time when a possession claim for rent arrears is heard; and that the Administrative Court is the appropriate forum (in an appropriate case) for considering the interesting arguments advanced by Mr Supperstone.  

ORDER: Appeal dismissed

(Order does not form part of approved Judgment)