An important County Court case has considered the variation of a possession order from discretionary to mandatory ground.
The question asked of HHJ Luba KC in Poplar HARCA v Kerr was whether a pre-existing suspended possession order — made on a discretionary ground — could be varied on the application of the landlord to an outright order on a mandatory ground.
The answer was ‘yes’ — HHJ Luba KC found that an application by the Claimant to vary the existing possession order (that hadn’t been discharged) to provide for outright possession on Ground 7A was "in accordance with the rule in Manchester City Council v Finn".
The Defendant argued that such variation wasn’t within the court's jurisdiction (under either Section 9 Housing Act 1988 or a general jurisdiction to vary a possession order) to turn an order made on a discretionary ground into one made on a mandatory ground.
However, Section 9 was found not to be in issue and instead the requirements for the ground would have to be complied with. Here, with regards to Ground 7A, a notice seeking possession and a right to seek a review of that decision were complied with — and so there was a power to vary an extant possession order.
As this is a County Court case, the decision isn’t binding — though it may be persuasive.
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