Tenant Found Guilty of Breach Due to Drug Activities and Disturbances

OUTCOME: Allowed

1

Case Reference : CHI/00ML/LBC/2020/0011

Property : 20-26 [ADDRESS], [POSTCODE]

Applicant : [redacted] : [COMPANY_2]

Respondent : [redacted] : [COMPANY_3] of Application : s.168 Determination

Tribunal Members : Judge D Dovar

Date of Decision : 30th September 2020

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

2 Introduction 1. This an application for [NAME_5] determination of breach under s.168 of [NAME_5] Act 2002 in respect of [NAME_5] Respondent’s long lease of [NAME_5] (which comprises 13 flats). Notification was given on 11th May 2020 that [NAME_5] Tribunal intended to deal with this application on [NAME_5] papers in accordance with Rule 31 of [NAME_5] Tribunal Procedure Rules 2013 unless either party objected, none did, and this determination has therefore been made without a hearing. 2. [NAME_5] breaches alleged arise out of drug use and ancillary anti-social behaviour emanating from one of [NAME_5] flats at [NAME_5], [NAME_6] 6 (‘[NAME_5] [NAME_6]’), which is occupied by a tenant of [NAME_5] Respondent who resides under an Assured Shorthold Tenancy. [NAME_5] issue is not just whether [NAME_5] underlying conduct has occurred, but whether in [NAME_5] circumstances that amounts to a breach by [NAME_5] Respondent who say in their defence that they have done all they reasonably can to address [NAME_5] issues that have arisen with their tenant. 3. [NAME_5] Tribunal has read [NAME_5] of Case of each party as well as [NAME_5] by [NAME_5] Applicant. In addition, [NAME_5] Applicant has provided a witness statement from [NAME_7], of [NAME_5] Applicant’s managing agent, [COMPANY_8]. [NAME_5] Respondent has provided two witness statements, [NAME_5] first from [NAME_9] who is [NAME_5] Respondent’s Tenancy [NAME_5] second from [NAME_12] who is their Regional Tenancy Services Manager.

3 4. [NAME_5] application named [COMPANY_13] as [NAME_5] Respondent. [NAME_5] Respondent’s Statement of Case points out that [NAME_5] lease is now in [NAME_5] name of [COMPANY_14] and an Official copy of register of title has been provided which reflects that.

Accordingly, [NAME_5] Tribunal has substituted [COMPANY_14] as Respondent to this application under Rule 10 of [NAME_5] Tribunal Procedure Rules 2013. Background 5. [NAME_5] Respondent is a non-profit registered provider of social housing. A lease of [NAME_5] was granted to its predecessor in title on 12th April 2006 for 999 years from 29th December 2004. [NAME_5] individual flats within [NAME_5] have been let for social housing purposes since then. [NAME_5] Respondent’s tenants do not populate [NAME_5] entirety of [NAME_5] building containing [NAME_5], [NAME_5] Applicant also lets out flats. Lease Terms 6. [NAME_5] following are terms relied on by [NAME_5] Applicant: [redacted] regulations in [NAME_5] Fourth Schedule; b. [NAME_5] Fourth Schedule provides: i. para 4.1, ‘Not at any time to use or occupy or permit [NAME_5] Premises to be used or occupied except as a private residential [NAME_6] only’ (emphasis added)

4 ii. para 4.3 ‘Not to do or permit or suffer upon [NAME_5] [Flats] or any part thereof ... any illegal or immoral act or any act or thing which may cause damage to [NAME_5] lessor ... or any adjoining or neighbouring premises.’ (emphasis added) iii. para 4.4 ‘Not to do or permit to be done any act or thing which may render void or voidable any policy of insurance maintained in respect of [NAME_5] or may cause an increased premium to be payable ...’ (emphasis added) iv. para 4.15 ‘...to ensure ... that no disturbance or annoyance is caused to [NAME_5] tenants or occupiers of [NAME_5] other flats in [NAME_5]’ (emphasis added) v. para 4.16.1 ‘Not to use or permit [NAME_5] user of [NAME_5] hall staircase and passages in and about [NAME_5] or any other of [NAME_5] otherwise than in accordance with [NAME_5] proper exercise of [NAME_5]’ (emphasis added) vi. para 4.17 ‘Not at any time to do or permit [NAME_5] doing of any damage whatsoever to [NAME_5] [NAME_5] fixtures fittings or chattels therein.’ (emphasis added) Chronology of events 7. [NAME_5] following is drawn from [NAME_5] of Case, witness statements, correspondence, documents and video recordings provided by both

5 parties for this application. Save where indicated otherwise, [NAME_5] factual account is largely uncontentious. 2012 8. On 12 December 2012, an individual known as Mr H. was granted a weekly periodic shorthold tenancy of [NAME_5] [NAME_6] by [NAME_5] Respondent. It is said by [NAME_5] Respondent that he has history of mental health issues and is receiving treatment for substance misuse. 2013 9. On 28 October 2013, Mr H was granted a 5 year fixed term tenancy of [NAME_5] [NAME_6]. [NAME_5] Respondent has not provided [NAME_5] actual tenancy, they have exhibited to their Statement of Case an example tenancy agreement and set out some terms of their standard agreement in [NAME_5] body of that statement. [NAME_5] Tribunal assumes, although it is not expressly stated, that [NAME_5] same or materially similar terms apply to Mr H’s tenancy. [NAME_5] sample tenancy prohibits various acts, including [NAME_5] smoking in communal areas of either [NAME_5] tenant or their guests; anti- social behaviour including illegal activities; and [NAME_5] use of [NAME_5] property for criminal or illegal purposes including [NAME_5] use or supply of any illegal controlled drug. 2018 10. In August, there was a physical altercation between Mr H and [NAME_5] tenant of [NAME_6] 44 (another [NAME_6] within [NAME_5]).

6 11. Mr H’s tenancy was renewed on either 18th or 29th October 2018 for a further five years. [NAME_5] Respondent’s Statement of Case provides [NAME_5] latter date, [NAME_9]’s witness statement [NAME_5] former. Not having been provided with [NAME_5] actual agreement, it is not possible to resolve this minor discrepancy.

12. At some point in October 2018, [NAME_5] police informed [NAME_5] Respondent that they considered that drugs were being dealt openly from [NAME_5] [NAME_6]. It is not clear whether this was before or after Mr H’s tenancy was renewed. Certainly, [NAME_9] has stated that [NAME_5] Respondent was aware of minor complaints at [NAME_5] time of renewal, but nothing that would warrant refusing him a renewal.

13. As a result of [NAME_5] information from [NAME_5] police, on 5th November 2018, Mr H was issued with a verbal warning by [NAME_5] Respondent who then informed [NAME_5] Applicant that a warning had been given. 14. [NAME_9] then says that Mr H had been effectively taken over by a group who were selling drugs from [NAME_5] [NAME_6]. By February 2019 [NAME_5] police had managed to remove [NAME_5] group. 2019 15. In February 2019, [NAME_5] Applicant was notified by its tenants that they were forming a residents committee in order to deal with [NAME_5] increasing problems they were experiencing from [NAME_5] [NAME_6]. [NAME_5] Applicant was informed that [NAME_5] people coming and going from [NAME_5] [NAME_6] were aggressive and intimidating.

7 16. [NAME_5] Applicant states that on 27th February 2019, [NAME_5] front door to [NAME_5] [NAME_6] was smashed in and [NAME_5] following day one of [NAME_5] other residents complained to [NAME_5] Applicant about [NAME_5] aggressive and intimidating attitude of those visiting [NAME_5] [NAME_6]. [NAME_5] Respondent has not admitted any damage to [NAME_5] front door of [NAME_5] [NAME_6] or that if there was any that Mr H was responsible for that. 17. [NAME_9] attended [NAME_5] [NAME_6] with [NAME_5] police in March 2019 and [NAME_5] Applicant states that [NAME_5] door, having been fixed, had been smashed in again. Again, [NAME_5] Respondent does not accept that this was [NAME_5] case or that it was [NAME_5] fault of Mr H. [NAME_15] in March one of [NAME_5] other residents reported to [NAME_5] Applicant that drugs were being used at [NAME_5] [NAME_6].

18. On 18th March, [NAME_9] told [NAME_5] Applicant by email that [NAME_5] Respondent were either going to obtain an injunction in relation to [NAME_5] [NAME_6] or assist [NAME_5] police in obtaining a Closure Order. [NAME_9] said that this would ‘give neighbours a break...’. He stated that Mr H had claimed that all his visitors had moved on to another location, but [NAME_9] said that ‘I don’t believe that for a second.’ 19. On 27th March, [NAME_9] assured [NAME_5] Applicant that they were taking [NAME_5] matter very seriously. He gave [NAME_5] impression that at that point they were considering both pursuing a Closure Order with [NAME_5] police and at [NAME_5] same time they would serve a notice seeking possession; being [NAME_5] first step towards taking possession proceedings. 20. [NAME_9] attended a joint agency meeting on 10th April 2019 at which it seems that [NAME_5] police decided not to pursue a Closure Order (or they

8 decided shortly after this date). He also states in his witness statement that ‘in light of [NAME_5] nature of complaints against Mr H, and taking into account his background, I could foresee (based on my extensive experience of applying for injunctions) potential difficulties with seeking either an injunction or possession at that time.’ 21. [NAME_9] had not relayed his change of heart to [NAME_5] Applicant and when chased as to what steps had been taken, he replied on 17th April that he was meeting with Mr H shortly and would provide an update on action and timescale.

22. In May, a man died in [NAME_5] [NAME_6]. A local newspaper article provided by [NAME_5] Applicant suggests that [NAME_5] man was homeless, a friend of Mr H and had died of a methadone overdose. [NAME_5] is reported as having said that ‘if you are naive to methadone and take too much it can kill you.’ 23. On 17th May, as a result of [NAME_5] death, [NAME_9] wrote to [NAME_5] Applicant saying that [NAME_5] Respondent was now actively seeking possession. [NAME_16], he then says in his statement that ‘in [NAME_5] following days’ as [NAME_5] death was not being treated as suspicious nor any action taken against Mr H, he did not consider it could be used to obtain possession. He did not communicate his change in view to [NAME_5] Applicant.

24. He did visit Mr H with [NAME_5] police on 29th May and Mr H voluntarily signed up to a [NAME_17]. This was followed up with a final warning letter to Mr H threatening possession proceedings if he breached [NAME_5] plan.

9 25. [NAME_5] voluntary [NAME_17] which was to last for 12 months, stated ‘If you breach [NAME_5] terms of your voluntary [NAME_17] ... then our next step will be to pursue legal action by way of possession proceedings through [NAME_5] court....’ 26. [NAME_5] final warning was in respect of ‘1. Taking and allowing visitors to your property to take illegal drugs within your property.

2. Allowing large numbers of people to visit your [NAME_6] without legitimate reason. Who in turn cause noise and Anti Social Behaviour ...’ 27. On 26th June 2019, [NAME_9] wrote to [NAME_5] Applicant stating he was assessing [NAME_5] strength of taking possession action and said he would be in touch ‘ASAP’. He did not mention his change of approach. [NAME_5] Applicant had presented further complaints regarding keeping dogs at [NAME_5] [NAME_6], more damage to [NAME_5] front door and associated drug use. [NAME_9] didn’t consider these were relevant as they pre-dated [NAME_5] signing of [NAME_5] plan.

28. On 9th July 2019, [NAME_9] in association with various agencies drafted a multi-agency safeguarding plan for Mr H, this followed [NAME_5] meeting in April.

29. Despite a number of chasing emails from [NAME_5] Applicant through [NAME_9]’s confirmation that he would be in touch as soon as possible, there was no further response from him. [NAME_5] Applicant then handed [NAME_5] matter to their solicitors who sent a letter on 2nd August 2019 outlining a number of alleged breaches of [NAME_5] terms of [NAME_5] lease. On 3rd September 2019, [NAME_5] Respondent responded, apologising for [NAME_5] distress and

10 inconvenience caused, stating that Mr H had been spoken to and that tenant management plans had been implemented ‘where necessary’. It was also stated that since that had happened it appeared there had not been any further incidents and that all reasonable action was being taken to prevent any repeat of such incidents.

30. On 9th September 2019, following a complaint, [NAME_5] Applicant viewed its CCTV footage of [NAME_5] previous day which showed men enter and leave [NAME_5] [NAME_6] and then settle down in [NAME_5] communal hallway to pass around and smoke a small pipe oblivious to [NAME_5] residents passing. 31. [NAME_5] video was sent onto [NAME_5] Respondent who had now instructed their own solicitors. [NAME_9] states in his witness statement that [NAME_5] individuals were not known to [NAME_5] Respondent and ‘there was nothing in [NAME_5] footage to suggest any criminal wrongdoing by any of our tenants’ Accordingly he decided to take no action in response to [NAME_5] conduct shown on [NAME_5] video.

32. On 20th September 2019, [NAME_5] Respondent’s solicitors whilst accepting that Mr H had a history of drug use, considered that there had been no breach of lease given that [NAME_5] Respondent had taken all necessary and appropriate action. Further in relation to [NAME_5] recent incident they contended that: ‘Factually, [NAME_5] shows three men smoking a substance in [NAME_5] communal area. [NAME_5] nature of [NAME_5] substance, and whether [NAME_5] smoking of it amounted to an illegal act, would of course need to be proved. ...

11 From our information, none of [NAME_5] three individuals in [NAME_5] is our client’s tenant of any of [NAME_5] Premises, and furthermore, [NAME_9] of our client does not know or recognise them. ... It is not enough for your client simply to demonstrate that illegal or immoral acts have taken place or that damage has been caused (which so far as we are aware has not yet been proven). It must be shown that our client either did, permitted or suffered [NAME_5] behaviour complained of. ... ... Our client has undertaken a pro-active management approach ... due to [NAME_5] individual circumstances of [NAME_5] tenant, who is a vulnerable young man, we are unable to divulge [NAME_5] details of [NAME_5] action that our client has been taking ... our client is entirely satisfied that [NAME_5] action it has taken in relation to addressing [NAME_5] drug-related problems which are of concern to your client has been reasonable, proportionate and effective.” 33. Further correspondence and a meeting ensured.

34. As a result of which by [NAME_5] end of 2019, [NAME_5] Respondent stated that it was pursuing [NAME_5] re-location of Mr H. 2020 35. In early January 2020, [NAME_5] Applicant reported further complaints of drug use in [NAME_5] communal areas linked to [NAME_5] [NAME_6] and as a result they

12 hired additional security for [NAME_5] building. [NAME_5] Respondent sought further details, but it does not appear that any was provided.

36. By 3rd April 2020, [NAME_5] Applicant received reports that there were breaches of [NAME_5] Regulations occurring in relation to [NAME_5] [NAME_6]. [NAME_5] police were involved and [NAME_5] matter was reported to [NAME_5] Respondent.

37. On 27th April 2020, [NAME_5] Respondent was notified that [NAME_5] footage showed four individuals visiting [NAME_6] 6 and that on [NAME_5] previous day Mr H had a further five visitors and he had been visiting [NAME_5] resident of [NAME_6] 9. [NAME_5] Respondent replied [NAME_5] next day requesting [NAME_5] footage and stated that they were working with solicitors and police to progress [NAME_5] allegations.

38. On 7th May 2020, [NAME_5] Applicant made this application to [NAME_5] tribunal.

39. On 27th May 2020, [NAME_5] Respondent made an application for an injunction against Mr H. An injunction was obtained on 9th June 2020 under s.7 of [NAME_5]-Social Behaviour, Crime and Policing Act 2014. [NAME_5] injunction prohibits Mr H from breaching [NAME_5] social distancing guidance, causing a nuisance, using any drugs or allowing a visitor to do so or allowing any illegal substances to be brought into [NAME_5] building.

40. Mr H breached [NAME_5] injunction shortly after it was granted and [NAME_5] Respondent is now seeking to commit him for breach. Permitted, ensure

13 41. Before dealing with [NAME_5] specific allegations of breach it is worth setting out [NAME_5] basis upon which [NAME_5] Respondent could be found in breach of covenant as a result of [NAME_5] actions of its tenant. 42. [NAME_5] Respondent is not actually in occupation of [NAME_5], it has sub- let [NAME_5] flats. To that extent it is not directly responsible for [NAME_5] underlying acts complained of. Therefore a significant part of this application focuses on [NAME_5] steps [NAME_5] Respondent has taken to address [NAME_5] issues raised by [NAME_5] occupation of Mr H.

43. If [NAME_5] underlying conduct of Mr H and his associates is established, then [NAME_5] question is whether [NAME_5] Respondent could be said to have either permitting that underlying conduct or in one respect failed to ensure that it does not occur.

44. Paragraphs 4.1, 4.3, 4.4, 4.16.1 and 4.17 of [NAME_5] Fourth Schedule all provide that not only must [NAME_5] Respondent not carry out certain acts, but [NAME_5] Respondent must not ‘permit’ them either. Paragraph 4.3 additionally prohibits [NAME_5] ‘suffering’ of [NAME_5] act. Finally, paragraph 4.15 provides that [NAME_5] Respondent must ‘ensure’ that [NAME_5] conduct does not occur.

45. In relation to permitting or suffering, [NAME_5] Applicant relies on an extract from [NAME_18]’s Law of Landlord and Tenant at paragraph 11.199 which states that ‘[NAME_5] word ‘permit’ means one of two things, either to give leave for an act which without that leave could not legally be done, or to abstain

14 from taking reasonable steps to prevent [NAME_5] act where it is within a man’s power to prevent it. ... a tenant permits or suffers a breach of covenant if he abstains from taking legal proceedings against his under-tenant, when there could be no good defence to any such proceedings; it depends on [NAME_5] circumstances of each case whether a covenantor may reasonably be expected to take legal proceedings in order to stop a breach of covenant on [NAME_5] part of his sub-tenant. ’ 46. This proposition is drawn from various authorities which have been recently reviewed by [NAME_5] Upper Tribunal in [NAME_19] v [COMPANY_19] [2020] UKUT 192 (LC). That decision also refers to [NAME_5] extract set out above as well as noting that in Berton v Alliance Economic Investment Co [1922] 1 KB 742 it was considered that ‘to suffer’ did not add anything to ‘permit’. Further, [NAME_5] in [NAME_19] stated ‘in determining whether a tenant has omitted to take steps which it was reasonable to take, all of [NAME_5] facts and circumstances must be taken into account. [NAME_5] question is whether a reasonable person in [NAME_5] position of [NAME_5] tenant would have taken steps to prevent [NAME_5] prohibited use which [NAME_5] tenant failed to take.’ 47. In relation to ‘ensuring’ that [NAME_5] conduct does not occur, [NAME_5] Respondent contends that it is a lesser obligation than permit or suffer and does not make them vicariously liable for their tenant’s actions. [NAME_5] Tribunal accepts [NAME_5] latter proposition, it does not agree with [NAME_5] former. There is no basis for making this requirement any less burdensome than

15 to permit or suffer. [NAME_5] Respondent refers to [NAME_5] dictionary definition, being to ‘make certain that (something) will occur or be [NAME_5] case.’ If anything , that would suggest that [NAME_5] obligation ‘to ensure’ sets a higher standard as whilst lack of permission may not be sufficient to prevent conduct occurring, ensuring something does not happen tends to indicate a more absolute requirement that it must not happen at all.

48. As [NAME_5] Respondent sets out, there are a range of measures and steps that can be taken to address a particular situation. [NAME_5] Respondent’s own Case Management Policy sets out a sensible series of steps, in what appears to be an approximate order of severity: from no action, to verbal warning, to written warning, to [NAME_17], and then at [NAME_5] end of [NAME_5] list is Service of Legal Notice, then Joint action with Local Authority or Police, Application for possession and finally application for an injunction.

49. That menu also recognises that there are various stages to obtaining possession from a tenant, not least [NAME_5] service of a legal notice and an application for possession.

50. When considering whether [NAME_5] Respondent has taken reasonable steps, all these potential actions should be borne in mind. Alleged Breaches 51. [NAME_5] Tribunal will deal with each alleged breach in turn. Para 4.1 – private residential [NAME_6] only

16 52. [NAME_5] Applicant considers that [NAME_5] use of [NAME_5] [NAME_6] as a hub for drug abusers is a breach of this covenant and that [NAME_5] Respondent has been aware of that at all material times. 53. [NAME_5] Tribunal does not consider that this allegation is made out. Whether or not there has been drug dealing or use at [NAME_5] [NAME_6], there is nothing to suggest that it is not [NAME_5] residence of Mr H and that that is [NAME_5] main use of [NAME_5] property. There is also nothing to suggest in [NAME_5] evidence that any drug dealing from [NAME_5] [NAME_6] is more than an ancillary part of his occupation. Para 4.3 - illegal or immoral acts 54. [NAME_5] Applicant specifically relies on a number of points to make out its allegation of breach of this paragraph. a. that Mr H is obviously taking drugs from his [NAME_6] and is permitting others to do so; b. [NAME_5] death from an overdose on 2nd May 2019; c. [NAME_5] visit on 8th September of three individuals who then congregated in [NAME_5] common parts to consume drugs; d. [NAME_5] breach of COVID-19 lockdown measures between 3rd April and 3rd May 2020 when numerous individuals visited [NAME_5] [NAME_6]. 55. [NAME_5] Respondent is equivocal over [NAME_5] various allegations levelled against Mr H. [NAME_16], in broad terms it says there is no breach as it has not permitted [NAME_5] same as has taken timely and appropriate action.

17 56. It is therefore necessary to review [NAME_5] background to [NAME_5] matter in order to determine whether firstly [NAME_5] alleged underlying conduct has occurred and secondly whether [NAME_5] Respondent has taken reasonable steps to address that conduct.

57. On 5th November 2018, a verbal warning was given for openly dealing drugs. [NAME_5] Tribunal is satisfied that [NAME_5] underlying conduct is made out and that [NAME_5] Respondent considered that to be [NAME_5] case. [NAME_5] giving of a verbal warning for dealing drugs from [NAME_5] [NAME_6] appears a little light given that [NAME_9] appears to have had no reason to doubt what [NAME_5] police had told him and it is not said that Mr H denied it. At this time it is not clear whether Mr H had alleged that he was being cuckooed; but that might warrant a lesser response. For something that was clearly a serious criminal offence and given prior issues, if not [NAME_5] imposition of a [NAME_17], then at least a written warning would seem to be warranted. [NAME_16], given [NAME_5] uncertainty as to whether [NAME_9] considered at this point that Mr H may not be in control of [NAME_5] [NAME_6], [NAME_5] Tribunal does not consider that there is sufficient evidence to establish a breach at this point.

58. By 18th March 2019, [NAME_9] had told [NAME_5] Applicant that there would be either a Closure Order or Injunction. At that point in time [NAME_5] police had removed [NAME_5] [COMPANY_20] and it appears that [NAME_9] did not trust what Mr H was saying and clearly thought [NAME_5] situation was serious enough to move to that level of action. It appears therefore at this point that there continued to be drug use and dealing from [NAME_5] [NAME_6].

18 59. This was confirmed to [NAME_5] Applicant 9 days [NAME_15] on 27th March. Further, [NAME_9] also said they would serve a notice of seeking possession at [NAME_5] same time. He had evaluated [NAME_5] situation then and decided that those were [NAME_5] proper and appropriate steps to take. 60. [NAME_16], by mid-April he had changed his mind. [NAME_5] only information provided by him at that time is that there was a joint agency meeting on 10th April 2019 (a matter high on [NAME_5] list of actions) at which or shortly after it appears that [NAME_5] police decided against seeking a Closure Order. No reason is given for that. Neither is any reason given for [NAME_9]’s change of view as to either an injunction or even serving a notice seeking possession. [NAME_5] Respondent has provided no evidence to support their change in view at this point in time, when it is sufficiently proximate to [NAME_5] anti-social behaviour complained of by [NAME_5] Applicant and its tenants and which, only a week or so before, was considered by [NAME_5] Respondent to warrant a Closure Order, an injunction and [NAME_5] service of a notice seeking possession. In his lengthy and extensive witness statement, [NAME_9] provides no detail as to why he changed his mind on this point.

61. At various stages [NAME_5] Respondent has been guarded over certain details in an understandable desire not to breach [NAME_21] and/or Mr H’s rights, [NAME_16], they have provided a fair amount of information about his background, his troubles and his drug issues. [NAME_5] Tribunal finds [NAME_5] failure to properly justify this change difficult to comprehend, particularly when so much detail has been given.

19 62. On [NAME_5] evidence before [NAME_5] Tribunal, it is therefore difficult to see how this change of view leading to no action at all being taken at this time is reasonable. In [NAME_5] period leading up to this point both parties were in agreement that in light of Mr H’s conduct a Closure Order and or an Injunction and or a notice seeking possession was [NAME_5] reasonable step to take. [NAME_5] failure to take either of [NAME_5] latter two steps by mid April 2019 was a breach by [NAME_5] Respondent of its covenant not to permit or suffer any illegal or immoral act. [NAME_5] dealing of drugs and drug use from [NAME_5] [NAME_6] being both illegal and immoral.

63. Even if [NAME_5] police were not going to pursue a closure order, they could have obtained evidence from [NAME_5] police to support an injunction on [NAME_5] basis of open drug dealing at [NAME_5] premises which had not ceased when [NAME_5] group had been removed. Further, [NAME_5] service of a notice seeking possession did not require anything other than serving [NAME_5] notice. Ultimately such a notice does not mean that [NAME_5] tenancy comes to an end, it merely puts [NAME_5] Respondent in a position to take further action to seek possession at a [NAME_15] stage if that is warranted.

64. Indeed instead of informing [NAME_5] Applicant that he was no longer pursuing either [NAME_5] Order or an injunction or [NAME_5] service of a notice, when [NAME_9] did communicate with [NAME_5] Applicant On 17th April, he said he was meeting Mr H shortly and would update them on [NAME_5] action to be taken and [NAME_5] timescale. He gave no hint that in fact there was to be no action and no timescale.

20 65. Then there was death in [NAME_5] [NAME_6]. It is pretty clear that a man died from an overdose of methadone. Given that all of [NAME_5] Respondent’s actions to date had failed to prevent such an event occurring and given that they themselves considered that Mr H was vulnerable and had issues with substance abuse, their ultimate reaction to this event is surprising. [NAME_9]’s first reaction is to tell [NAME_5] Applicant on 17th May that they were actively seeking possession. At this point in time he must have weighed up [NAME_5] factors and considered this was [NAME_5] reasonable step to take. Therefore, if not before, then certainly at this point that should have triggered at [NAME_5] very least a notice of seeking possession. [NAME_5] failure to do so was another breach in that this amounts again to permitting an illegal or immoral act.

66. Whether or not [NAME_5] death was as a result of unlawful activity or caused a nuisance or annoyance to others, whatever reason [NAME_5] Respondent had for not taking action earlier, it should have been clear by now that not only was Mr H continuing to associate with others with substance issues, but that it was likely [NAME_5] [NAME_6] was still being used by others to take substances. This was not likely to stop unless action was taken, there was action available to [NAME_5] Respondent which they did not take with [NAME_5] result that they were permitting illegal and or immoral acts.

67. Despite his initial reaction, [NAME_9] says that they did not pursue possession given that [NAME_5] death was not being treated as suspicious nor was Mr H having any action taken against him. That appears to miss [NAME_5] point in that it was [NAME_5] event itself which should have caused concern and led to action. He also appears to have lost sight of [NAME_5] need to

21 provide [NAME_5] other residents with a break. Further, again, he did not inform [NAME_5] Applicant of this change in approach. In their Statement of Case it is said that it [NAME_15] transpired that [NAME_5] incident did not directly involve Mr H. [NAME_16], no further detail is given as to that; nonetheless [NAME_5] death did occur in [NAME_5] [NAME_6] and it is difficult to understand how it can be said not to have involved him.

68. Again when on 26th June 2019, [NAME_9] wrote to [NAME_5] Applicant saying he was assessing [NAME_5] strength of taking possession action, he did not mention that he had changed his mind as to [NAME_5] action to be taken and that there were no immediate plans to seek possession. No doubt his failure to keep [NAME_5] Applicant informed led them to seek legal assistance from their solicitors. 69. [NAME_5] next significant date is 8th September 2019. [NAME_5] Tribunal has viewed [NAME_5] footage for that day and it clearly shows two men entering [NAME_5] [NAME_6] briefly, then they are joined by a third and they sit down in a communal hallway, [NAME_5] ground floor lift lobby, and pass round a small pipe which they smoke.

70. This was passed onto [NAME_5] Respondent. [NAME_9] did not take any action over this as in his statement he considered that it did not suggest any criminal wrongdoing by any of his tenants. This is [NAME_5] same line that [NAME_5] Respondent’s solicitors adopt when [NAME_5] Applicant contends that this conduct is a breach of covenant. Firstly they do not admit that it is drugs that are being used; although [NAME_12] in her statement says [NAME_5] video shows ‘what appeared to be illegal drugs being taken’. Secondly they

22 say that it was not a tenant of [NAME_5] Respondent and that [NAME_9] did not know any of them. They firmly asserted that [NAME_5] Applicant must show that [NAME_5] Respondent permitted [NAME_5] behaviour complained of. Finally in their Statement of Case they state that no action was taken as [NAME_5] Respondent was unable to link [NAME_5] individuals to Mr H. This is despite [NAME_5] fact that they are seen coming and going from [NAME_5] [NAME_6]. 71. [NAME_5] Tribunal finds these responses hard to reconcile with [NAME_5] facts.

72. If this had been a one off event, then there might be an issue as to what [NAME_5] men were doing in [NAME_5] [NAME_6] for a brief moment of time before sitting in [NAME_5] hallway to smoke a pipe, but even then, suspicions would be high. [NAME_16], this was not a one off event, there had been a history of drug dealing at [NAME_5] [NAME_6]. To seriously contend that these three individuals were not smoking drugs in [NAME_5] communal hallway and that they were not connected with Mr H demonstrates at best an unfortunate blindness to [NAME_5] reality and at worst a more cynical attempt to throw [NAME_5] Applicant off taking any action. Further against [NAME_5] background of open drug dealing and a death in [NAME_5] [NAME_6], to assert that [NAME_5] action taken has been effective was not only demonstrably wrong but was not going to provide [NAME_5] Applicant with any confidence that [NAME_5] matters were going to be resolved. 73. [NAME_5] Respondent said it could not give all [NAME_5] details to [NAME_5] Applicant about [NAME_5] steps it had taken. In which case it was even more important for [NAME_5] Respondent to communicate properly and constructively with [NAME_5] Applicant. [NAME_5] equivocal response to [NAME_5] footage and [NAME_5]

23 denial of any link to Mr H, it was no surprise that [NAME_5] Applicant was concerned that it was not addressing matters properly. 74. [NAME_5] failure to take steps, either by way of injunction or [NAME_5] service of a notice seeking possession at this point was another breach in that it was permitting [NAME_5] illegal and or immoral acts. [NAME_5] particular acts being [NAME_5] dealing of drugs or association with drugs in [NAME_5]. 75. [NAME_5] subsequent steps that were taken to obtain an injunction and [NAME_5] proceedings for committal were a little too late. Further it is notable that [NAME_5] injunction was not just to prevent breach of [NAME_5], but was also to prevent drug use in [NAME_5]. Given that [NAME_9] does not state there was any new evidence of drug use at [NAME_5] [NAME_6], [NAME_5] injunction in that regard must have been obtained on [NAME_5] basis of [NAME_5] prior evidence in his possession. This only reinforces [NAME_5] view that further measures should have and could been taken at an earlier stage. 76. [NAME_5] Respondent contends that it was not reasonable for it to take possession proceedings because they may not have been successful given various defences that would have been available to Mr H. [NAME_5] Tribunal does not consider that [NAME_5] Respondent had yet reached [NAME_5] point where it needed to weigh up [NAME_5] merits of taking possession proceedings. Preliminary steps should have been taken and then, if necessary, [NAME_5] merits could have been assessed at a [NAME_15] date. 77. [NAME_16], in any event, [NAME_5] Tribunal is not satisfied that [NAME_5] Respondent’s view of [NAME_5] merits of any possession action justified not taking [NAME_5] steps they should have as outline above. [NAME_5] Tribunal

24 does not agree that there assessment of [NAME_5] merits justified not taking action.

78. If a notice seeking possession had been issued in March 2019, and proceedings issued either thereafter or after [NAME_5] death or after 8th September, firstly Mr H would not have been able to seriously contend he was not in breach of his tenancy agreement or causative of anti-social behaviour. This would also be in accordance with [NAME_5] Respondent’s own policies. Therefore proceedings pursuant to section 8 of [NAME_5] Act 1988 had been undertaken for proceedings, then Respondent would have made out grounds for possession required under that route. It would therefore be a matter of discretion of [NAME_5] Judge as to whether to order possession. On [NAME_5] evidence before [NAME_5] Tribunal it seems more than likely that at [NAME_5] very least a suspended possession order would have been granted if not an outright order.

79. It is said in [NAME_5] of Case that Mr H is ‘likely to have a disability’ and so [NAME_5] Act 2010 may be engaged to prevent any possession order being made. No details of [NAME_5] suspected disability are provided. [NAME_5] Tribunal has no way of assessing for itself whether or not [NAME_5] Respondent’s assessment was sufficient. [NAME_5] Respondent had properly taken [NAME_5] steps to ascertain whether or not this was [NAME_5] case, [NAME_5] Tribunal cannot see how it can properly take such an assertion into account.

80. Finally reliance is placed on Article 8 of [NAME_5] [NAME_23] and that seeking possession is a breach of his right to

25 respect for his home. To that extent [NAME_5] Respondent relies on Manchester City Council v Pinnock [2010] UKSC 45 as a guide as to [NAME_5] defence Mr H may have utilised. [NAME_16], [NAME_5] Tribunal does not see how this assists [NAME_5] Respondent. Even if this article was engaged on [NAME_5] basis that [NAME_5] Respondent is treated as a public authority, Pinnock reiterates that where possession would otherwise be ordered, such defence is exceptional. This is even more so where possession is given following a route whereby [NAME_5] judge has a discretion in making such an order; which would have been [NAME_5] case. [NAME_5] background to this matter, it is difficult to see how Mr H would bring himself within that remit.

81. Therefore, if [NAME_5] Respondent had chosen to pursue proceedings on [NAME_5] basis of anti-social behaviour and unlawful conduct it is difficult to see any other outcome than at [NAME_5] very least a suspended possession order. None of that was possible though because [NAME_5] Respondent did not serve a notice seeking possession. Para 4.4 and 4.17 – insurance and damage to [NAME_5] 82. [NAME_5] front door to [NAME_5] [NAME_6] is said to have been damaged on more than one occasion which is said to not only constitute damage but also may increase insurance premiums. 83. [NAME_5] Respondent denies it has permitted this and has taken appropriate action.

26 84. Firstly, [NAME_5] Tribunal was provided no evidence that this may increase or render void any insurance and so that breach is not made out.

85. Secondly, with respect to [NAME_5] evidence of damage to [NAME_5] door, again this needs to be put into [NAME_5] context of whether or not [NAME_5] Respondent could be said to have permitted it. It isn’t clear who damaged [NAME_5] door, it is a fair assumption that it was in relation to Mr H’s drug activities. [NAME_5] first instance was in February 2019, and [NAME_5] second appears to have been around March 2019. 86. [NAME_5] failure of [NAME_5] Respondent to take [NAME_5] action it said it was going to take in March 2019 is a breach of this covenant in that by failing to take [NAME_5] reasonable step of either serving a notice seeking possession or an injunction in light of damage having been done to [NAME_5] door twice, was for these purposes permitting damage to [NAME_5] fixtures of [NAME_5]. Para 4.15 – disturbance and annoyance to others 87. Whether ‘to ensure’ is equivalent to ‘permit’ or a lower threshold, for [NAME_5] reasons given in relation to paragraph 4.3, [NAME_5] Tribunal determines that this covenant was also breached at [NAME_5] same time and for [NAME_5] same incidents.

88. Not only was there a tacit admission by [NAME_9] that Mr H’s conduct was causing a disturbance and annoyance to other residents when in his email of 18th March 2019 he said that [NAME_5] Order would give [NAME_5] neighbours a break, but [NAME_5] Tribunal considers that [NAME_5] drug use in [NAME_5] communal parts and [NAME_5] breach of Covid Regulations, which were

27 reported to [NAME_5] Applicant would all cause a disturbance and annoyance to [NAME_5] other residents. Further, [NAME_5] Applicant has provided emails of complaints from residents and considers that these demonstrate that [NAME_5] conduct did cause a disturbance and annoyance to them. Para 4.16.1 – use of common parts 89. It is said [NAME_5] Respondent is permitting [NAME_5] use of common parts in ways which are not in accordance with [NAME_5] included rights. It relies on [NAME_5] use to congregate and use drugs, and highlights [NAME_5] incident on 8th September 2019. 90. [NAME_5] only incidence of this use is that of [NAME_5] 8th September 2019. [NAME_5] other conduct complained of related to dealing at [NAME_5] [NAME_6] and comings and goings from [NAME_5] [NAME_6], [NAME_5] Tribunal does not consider that it can be said that [NAME_5] Respondent permitted this particular conduct. Conclusion 91. [NAME_5] Tribunal therefore determines that for [NAME_5] purposes of s.168 of [NAME_5] Act 2002, there has been breaches of clause 4.5, by virtue of a failure to abide paragraphs 4.3, 4.15 and 4.17 of [NAME_5] Fourth Schedule.

JUDGE DOVAR

28 Appeals

A person wishing to appeal this decision to [NAME_5] Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to [NAME_5] First-tier Tribunal at [NAME_5] office which has been dealing with [NAME_5] case.

[NAME_5] application must arrive at [NAME_5] Tribunal within 28 days after [NAME_5] Tribunal sends to [NAME_5] person making [NAME_5] application written reasons for [NAME_5] decision.

If [NAME_5] person wishing to appeal does not comply with [NAME_5] 28-day time limit, [NAME_5] person shall include with [NAME_5] application for permission to appeal a request for an extension of time and [NAME_5] reason for not complying with [NAME_5] 28- day time limit; [NAME_5] Tribunal will then decide whether to extend time or not to allow [NAME_5] application for permission to appeal to proceed.

[NAME_5] application for permission to appeal must identify [NAME_5] decision of [NAME_5] Tribunal to which it relates, state [NAME_5] grounds of appeal, and state [NAME_5] result [NAME_5] party making [NAME_5] application is seeking.