District Judge Neil Hickman examines the case for adjourning ground 8 claims

Ground 8 in the Housing Act 1988 (as amended in 1996) makes it a mandatory ground for possession that the rent under an assured tenancy is at least eight weeks in arrears at the date of service of the section 8 notice and at the date of the hearing.


What if the arrears only exist because the local authority has failed to process the tenant's claim for housing benefit? A practice developed in some courts of adjourning ground 8 claims for a short period to allow housing benefit claims to be determined. The Court of Appeal in North British Housing Association v Matthews [2004] EWCA Civ 1736 [2004] All ER (D) 344 (Dec) has roundly declared that this practice is impermissible. The court said that it could be proper to adjourn a ground 8 claim even though the effect of doing so might be to deprive the landlord of his entitlement to an order. Examples given included judicial unavailability, over-listing, and the defendant being prevented by ill-health from attending court (see [2005] Gazette,13 January, 32).


If the tenant has an arguable case that he is entitled to set off damages for disrepair (see British Anzani v International Marine Management [1980] QB 137), the possession claim cannot be determined until that issue has been resolved. If the landlord accepts a cheque in payment of the arrears, it is proper to adjourn to see if the cheque clears (Day v Coltrane [2003] EWCA Civ 342, [2003] 1 WLR 1379).


However, it cannot be a proper exercise of discretion to adjourn for the purpose of allowing the tenant to bring the arrears down and deprive the landlord of his entitlement. Delivering the judgment of the court, Lord Justice Dyson quoted Lord Hoffmann in Bristol City Council v Lovell [1998] 1 WLR 446 - the discretion to adjourn 'must be exercised judicially and not for the purpose of defeating the policy of the statute'.


There might 'occasionally be circumstances where the refusal of an adjournment would be considered to be outrageously unjust by any fair-minded person' - for example, that the tenant had the money to pay the arrears and been robbed on the way to court, or that the local council had promised to pay all the arrears but been prevented from doing so before the hearing date by a computer failure.


But Lord Justice Dyson stated in terms that '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'.


Lord Justice Dyson quoted with approval Judge Platt's observation in London and Quadrant HT v Ison (unreported) that 'if [ground 8]gives rise to injustice, it is for Parliament and not for the court to address that issue'. The facts of the individual cases considered in Matthews may be thought to demonstrate injustice, even to be 'outrageously unjust'. However, it remains to be seen whether Parliament will address the issue.


District Judge Neil Hickman sits at Milton Keynes County Court and is a contributor to Jordan's Civil Court Service