Tenancy News

The Government Equalities Office has announced that the Public Sector Equality Duty will be in force from 6 April 2011.

The Equalities Office page has links to the following documents:

• Draft regulations on the specific duties;
• Draft order amending Schedule 19, listing the public bodies to which the duty applies;
• A ‘Quick Start’ guide for Public Sector Organisations;
• Equalities and Human Rights Commission Guidance.

More on this when we’ve had a chance to digest it.

The Localism Bill had a second reading in the Commons yesterday. One amendment (Labour) was tabled and defeated. Looks like the significant amendments will be made in Committee. Not – I must say – the best quality debate ever as it appears to have been mostly about scoring party political points than debating the issues involved. For those who are interested, the Hansard report is available here.

For anyone who noticed that access suddenly appeared to be forbidden to the blog on the afternoon of Monday 17 January, my apologies. For once it was nothing to do with me – something (I know not what) had triggered something else on the server. One brief but intense discussion with support later, we appear to be back…

Following on from the news that LEASE (the Leasehold Advisory Service – a quango) had not been granted funding to continue to advise the public on commonhold issues (see our note, here), comes the news that it is to stop offering mediation services in service charge disputes (again, one presumes, for lack of funding). The announcement is here.

Not entirely surprising. Sad though it is to say this, I suspect that the writing is on the wall for LEASE in general. The approach of the Tory-led government to quangos is, in general terms, to abolish them where they perform a service that the private sector could perform. Advise about service charge disputes, collective enfranchisement, etc, does rather sound like something that the private sector already offers via your friendly neighbourhood soliticitor…

Hemphurst Ltd v Durrels House Ltd [2011] UKUT 6 (LC) is, I suspect, going to go on appeal to the Court of Appeal. Certainly, if you practice in the field of leasehold enfranchisement, it’s one you’ll want to know about as it’s pretty important.

In general terms, qualifying tenants of flats have a right to collectively enfranchise the freehold of the building containing their flats (Leasehold Reform, Housing and Urban Development Act 1993). Where there is an intermediate leasehold interest of any flat, the qualifying tenants are obliged to purchase that interest (s.2(1)(a), 1993 Act). Where there is a separate lease of any common parts (or appurtenant property) then, in specified circumstances, the qualifying tenants may (i.e. it is a discretion) acquire that interest. The Act does not say if they have to acquire all the property under the leasehold interest or if they can pick and chose which parts they want.

In the present case, the freeholder had granted a lease to a third party of the roofspace and airspace, with a view to that third party building a flat or flats. The tenants then sought to exercise the right to collective enfranchisement and sought to purchase only part of the property dealt with by the aforementioned lease (basically, the flat that was going to be build didn’t cover all the roof space; the tenants wanted to acquire the part that wouldn’t be built on). The freeholder said this wasn’t possible: the leaseholders had to purchase all the property under the leasehold interest or none of it.

The LVT found for the freeholder, but the Upper Tribunal allowed an appeal by the nominee purchaser. The language of the 1993 Act was unclear on this point and didn’t point to any particular answer. The policy of the 1993 Act was, however, to favour tenants. That being so, there was no reason why they could not acquire only that part of the leasehold interest that they wished.

Comment

Interesting. That conclusion doesn’t emerge clearly from the wording of the 1993 Act. I have some sympathy with a point made by the freeholder about whether it was desirable to let leaseholder pick and chose what parts to acquire, and the danger of establishing a “patchwork quilt” of title in a property. The answer, said the UT, was for the landlord to serve a counternotice under s.21(4), 1993 Act, requiring the tenants to purchase the additional property.

Ok – I see that, but what about where (as is quite common), the landlord either fails to serve a counternotice or serves one that it later found to be invalid?

Clarke v Meadus [2010] EWHC 3117 (Ch)

Normally Dave would be covering this kind of case, knowing more about equity and trust right now than I probably ever will. But Dave is off being very clever to a tight deadline for other people, so I get to indulge my hobbyist’s interest at your expense.

The question in this appeal was whether supervening events could override an express declaration of trust shares in a property, whether in proprietary estoppel or a form of constructive trust. Much of the outcome remains subject to trial, as will be seen, given that this was an appeal of an order striking out C’s claim.

The brief facts were as follows. C and M, mother and daughter, were the title holders of the property (a large property) which had been purchased and built by Mr M, the husband and father of the parties. In 1989 Mr M transferred the property to the joint names of himself and Mrs M.

On Ms C’s evidence, before his death Mr M had expressed a wish that C should come to live at the property with M after his death and then have the property on M’s death.

Mr M died and M took the whole by survivorship. M then apparently asked C and her family to move in with her in the property and, if they did so, she would leave the property to C. C and her family moved in and, initially, let their property.

M was advised, for tax purposes, to “implement arrangements which would have, for inheritance tax purposes at least, the same effect as if the joint tenancy had been severed before Mr Meadus’ death, thus allowing his notional half share to pass pursuant to a variation of the dispositions otherwise taking effect on his death. As part of that variation, Mrs Clarke was to receive his notional half share in the house, garden and woodland thus making herself and Mrs Meadus owners in equal half shares.” This was done. There was no evidence that M considered this to be in satisfaction of any promise she may have made to C that the property would be left to her. So there was an express trust of 50% share between M and C as a result.

According to C, M also executed a will at this time leaving M’s 50% of the property to C. In any event, C and her family sold their property and moved in to the property (after, C says, obtaining a further assurance M would leave the property to her – being a basis for an estoppel claim). C asserts that she paid all for the mortgage payments for a period, and at least 50% the rest of the time.

C asserted that she had expended money and entered into liabilities thereafter, in reliance on M’s promise.

• She had bought an adjacent field in her name on M’s urging, funded by an increase in the mortgage for which C undertook liability for the capital and for paying the increased mortgage interest.
• C had incurred a loss of £57,000 on the sale of her family’s property
• She had lived with M and cared for her without payment, giving up her free time
• She had paid for a sitter/companion for M on occasions
• She had invested the equity of the sale of her property and her husband’s pension in substantial improvements to the property:
  “i. The erection of a new barn/garage, new fencing, hard-standing and car-parking. It is to be noted, however, that she and her husband have had enjoyment of this new building in connection with their business.
  ii. Significant items of refurbishment – including replacing two bathrooms, installing double glazing and replacing barge boards.
  Mrs Clarke accepts that the DADT [the trust arrangement] obliged her to meet half the cost of these items (which go beyond maintenance) but says that there was no obligation on her to carry them out or to permit Mrs Meadus to do so.”
• She had discharged obligations on the lending on the property, over half of which had accrued before she occupied the property.
• She had entered agreements which prevented her from moving from the property unless M wished to sell

In 2006 M changed her will to leave her 50% share of the property to C’s sister. C brought a claim in proprietary estoppel or alternatively constructive trust, in reliance on the assertions set out above.

At first instance, C’s claim was struck out.

The Master held on constructive trust:
“where there is an express declaration of trust, that is an end of the matter with respect of the court determining the parties’ respective interests, unless one party applies for rectification or rescission of the deed”. The claim in constructive trust could therefore not succeed, whether or not it was characterised as ‘some form of remedial trust’ in the alternative.

On proprietary estoppel, the Master first considered that the relief sought was “an immediate right given by proprietary estoppel to an order that Bonavista is held by the claimant and the first defendant upon trust, subject only to a right to Mrs Meadus to occupy the property for so long as she may wish”.Such an order would go further than would be permissible to give effect to any proprietary estoppel.

The Master then turned to questions of reliance. He recorded the submission that (i) an examination of the various items of alleged reliance and (ii) the case of detriment based on such reliance, led to the conclusion that there was no case which should be allowed to go forward. By way of example, the move from Kent was, it had been submitted, a benefit and not a detriment at all. Although on Mrs Clarke’s case she had made a loss by selling the Kent property, the value of the equity in Bonavista that she was declared to be entitled to pursuant to the DADT in fact gave a valuable increase in equity overall.

The Master next referred to the question of payment for improvements and maintenance, noting that such expenditure was for the benefit of Mrs Clarke’s half share as much as Mrs Meadus’ share, and pointing out that the sharing of the cost was dealt with by the DADT. In that context, Mr Sinnatt had taken the Master to the example of the erection of the new barn/garage which I have mentioned already. As to that, Mrs Meadus’ defence relies on the manner in which Mrs Clarke and her husband had expanded their business (an ammunition business) despite the misgivings and concerns of Mrs Meadus making use of the new barn/garage to the exclusion of Mrs Meadus. But even here, the parties are at odds, since the Reply suggests that Mrs Clarke and her husband have stored Mr Meadus’ guns belonging now to Mrs Meadus, and the guns of some of Mrs Meadus’ friends.

In short, what was termed detrimental reliance was a benefit, ‘at least in part’. While this was not conclusive, the Master went on to say “it does seem to me to underline the importance of trying to see whether there is in fact made out here a sufficient case of detriment supporting proprietary estoppel that is worthy of going forward to be dealt with at a trial in the sense of has it been established by Mrs Meadus that there is no real prospect of success in relation to the proprietary estoppel claim? I have come to the conclusion that it really does not do so.”

No reasons were given for reaching this conclusion. The Master did also come to the view that “Mrs Clarke had no prospect of showing at trial that any equity to which Mrs Clarke might be entitled as the result of any detrimental reliance on the promises and representations alleged, had not already been satisfied by the beneficial half-share”.

The Claim was struck out. C appealed.

The appeal hearing was also a consideration of an application to amend the particulars of claim to include a pleading that:

“Immediately prior to the sale of her home in Kent the Claimant sought and obtained from the First Defendant express reassurance that the First Defendant fully understood the nature of the transactions she had entered into in September 1996 viz.; the transferring of a half share in Bonavista to the Claimant and the First Defendant remained committed to her promise to the Claimant to leave the other half of Bonavista to the Claimant in her Will. The First Defendant confirmed to the Claimant at that time that she wanted the Claimant to sell her home and commit her and her family fully to Bonavista on the faith of her promise that Bonavista would be the Claimant’s when the First Defendant was dead. If the First Defendant had refused to make such a commitment or had intimated any change of heart the Claimant could and would have moved the family and the business back to Kent.”

Held:
1. While the relief sought might go too far in seeking a declaration of 100% beneficial interest, this did not in itself mean that there was no valid claim. It was for the court to mould the appropriate remedy. The claim was in any event also for ‘such shares as the court may decide’ and always subject to M’s right to reside. The prayer also requested ‘further or other relief’.
2. The terms of the express trust are capable of being overidden by proprietary estoppel, should C make out her claim. The Master was wrong to strike out the claim in proprietary estoppel. Reliance and detriment were asserted and it was matter for detailed evidence, not the summary consideration of the Master, whether they were established.
3. If C established her allegations, this was a clear ‘bargain’ case:

Mrs Clarke’s expectations were based on an express promise by Mrs Meadus, repeated on several occasions. The closeness of the facts to a “bargain” are a factor in the ultimate resolution of the case: see Robert Walker LJ in Jennings v Rice [2002] EWCA Civ 159, [2003] 1 P & CR 8 at [41] ff especially at [45]. Of course, this reasoning does not apply to what one might call an extravagant case where the promise does not, on any view, justify a claim based on detrimental reliance.

It is no doubt the case that a change of position induced by a representation or promise is not enough because that change may actually be highly beneficial to the claimant. That is one factor which leads to the conclusion that the time when the prejudice to a claimant is to be judged is when the person making the representation or promise departs from his promise or indicates that he will break his promise or act otherwise than in accordance with his representation in the future.

The whole period of 10 years from the time when the promises were allegedly made and act upon must be considered in assessing reliance and detriment. While any subsequent benefit resulting to C should be taken into account, deciding the unconscionability of M resiling on her promise had to be based on the whole course. In this case it was clear that there had been reliance and detriment remained to be considered at trial, as it was arguable. Gillett v Holt [2001] Ch 210, per Robert Walker LJ:

The overwhelming weight of authority shows that detriment is required. But the authorities also show that it is not a narrow or technical concept. The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial. The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.

3. While estoppel is always backward looking, from the point the promise has been resiled from, this is not to say that estoppel can’t be given effect at a time before the promise falls due. It is not right to suggest that the claimant has no rights in a property until the promise has been resiled from – as per Jennings v Rice, an equity is established once the elements of a proprietary estoppel are established.

4. The arrangements of the express trust in this case did not displace or satisfy any previous promise by M to leave the property to C if, as on C’s case the agreement was consistent with an affirmation of the promise, albeit that at the point of the agreement C’s rights in the property might not have fully accrued (her house had not yet been sold, etc,)

5. On constructive trust, the claim appeared to be cast as a remedial constructive trust. This was out of favour in English law, although Lord Scott in Thorner v Major [2009] UKHL 19 might suggest otherwise. It would be wrong to strike out the claim in constructive trust when the proprietary estoppel claim was to go ahead as they were both routes to the same end – an equitable interest in the rest of the property. “[T]he authorities, in particular Stack v Dowden, do not in my view preclude a remedial constructive trust once Mrs Clarke has jumped the hurdle of establishing the availability of such a remedy as a matter of English law.”

6. The enquiry into unconscionability is not suitable for summary judgment or strike out save in the most exceptional cases

Appeal allowed and application to amend Claim successful.

(Brief) comment
It is fascinating to see the resurgence of proprietary estoppel over the last few years, from the point it almost disappeared into constructive trust. Here the ‘remedial’ constructive trust claim is allowed to proceed almost as an afterthought (apparently with very limited prospects of success), as being very weak in comparison to the estoppel claim.

But remedy is always the difference between the two. The Court’s suggestion that getting 100% of the beneficial interest would be somewhat unlikely for C would be a marker of that. The assessment of the remedy sufficient to satisfy the equity arising from the unconscionable conduct is, we are firmly reminded, for the Court, not either of the parties.

Also useful to note is the lack of hesitation in finding that an estoppel claim can override an express declaration of trust shares. While I grant that few of us will be pleading storing the client’s mother’s friends’ guns as detrimental reliance (even if, thinking of my borough, the facts may be made out), the principles here may well be of use where there has been some sort of agreement on the eventual ownership of a property but an express trust in the meantime – or as part of that agreement for the future. And there is that point that effect can be given to an estoppel at or after the point of resiling from promise, not at the point the promise would have crystallised or fallen due – perhaps an obvious one, but a useful reminder.

Let us hope we get to hear the outcome of the trial, should matters get that far.

Hopefully Dave will be along in the next few days with some more intelligent comments…

GMAC RFC Ltd v Jones Lambeth County Court 15/11/2010

With thanks to the Legal Action Recent Developments in Housing Law – report in the January 2011 edition.

This was a case on the operation of the Mortgage Repossessions (Protection of Tenants etc) Act 2010, s.1(4), providing for the tenant of a mortgagor to apply for a two month stay of the execution of a warrant of possession by the mortgagor.

Ms Jones had a mortgage from GMAC (everyone’s favourite sub-prime lender). ON the basis of arrears of mortgage payments GMAC obtained a possession order. In June 2009, after the possession order, Ms Jones granted a 12 month fixed term AST to Mr Elegishu, without getting GMAC’s consent to the tenancy. After the end of the fixed term, Mr E remained in occupation paying rent of £900 per month.

In October 2010 GMAC sent notices to the property, addressed to Ms Jones and ‘any other other Occupier’, as did another mortgagee also entitled to possession.

Mr E’s solicitors requested that no further action be taken for two months. The other mortgagee agreed. GMAC didn’t. Mr E applied to be joined as second Defendant and for an order that the execution of the warrant be postponed for two months under s.1(4) of the Mortgage Repossessions Act.

GMAC strongly opposed the application, arguing that:
i) the tenancy was not valid
ii) possession had already been postponed, as the order had been obtained a considerable time ago and not executed
iii) the tenant was in default, as he had not paid rent to Ms J after learning of the possession orders, instead setting it aside
iv) there was little evidence as to the steps the tenant had taken to find alternative accommodation.

The DJ (DJ Zimmels for anyone who shares my obsession with Lambeth County Court) held:

• The tenancy agreement was valid and not binding on the mortgagee
• The two months period started at the date of the hearing
• Except for the recent setting aside of rent, the tenant was not in default. It was reasonable for him to set aside rent in the circumstances as the tenant was at risk of losing his home and may have a claim against his landlord

Two months relief ordered – warrant not to be executed till 15 January 2011. GMAC to pay Mr E’s costs of the application.

Comment – It is surprising to see GMAC opposing a two month delay where they had failed to seek a warrant for over 18 months after the possession order themselves (and indeed opposing it on the basis of their own delay). One can only presume that they wished to establish something of a precedent for the County Court dealing with tenant’s applications under the Act. If so, it backfired.

My word, what a fountain of press releases you have been lately. Quite takes me back to the heady days of John Healey. But it is this press release I want to talk about, the ‘Neighbours from Hell’ one.

You announce that you:

will introduce a new additional mandatory ground for possession, so those tenants with a track record of anti-social behaviour can be evicted from their council or housing association property much more quickly.

Ministers believe this will lead to a faster and fairer courts process – being found guilty of housing related anti-social behaviour in one court will provide automatic grounds for eviction in the county court, removing the need to prove the incidents of anti-social behaviour for a second time.

I’ve been trying to make sense of this, being a housing lawyer who will have to deal with whatever the legislative outcome is. It sounds as if it makes sense. There are words and sentences, arranged in a sense making order. There are impressive sounding phrases like ‘more quickly’ and ‘faster and fairer’ (haven’t we heard that somewhere before? Ah yes, the late Govt’s line on ‘summary justice’). But when I try to match it up against what actually happens now, let alone what the current legal position is, things go together as well as pairing lime green crocs with a nice navy pinstripe worsted suit (and that combo should never be seen in town after 1 May, really).

Not that I’m knocking the seriousness of the issue. I, and probably every housing solicitor, get many, many people approaching me desperate for something to be done about their nuisance neighbour/kids/gangs in the area or wanting a transfer because they  just can’t take it any more. Of course, we also get people accused of causing nuisance/perpetrating ASB, so we have a perspective from both sides to some extent. But I would in no way seek to minimize the seriousness of the problem and the blight it can have on people’s lives. All the more important for anything you propose to actually be worthwhile and effective rather than sitting at the glib sound bite end of things.

So. let’s try to break this down a bit…

Being found guilty of housing related anti-social behaviour in one court will mean that it won’t have to be ‘proved again’ in the county court on a possession claim.

Well, that would actually be true now. If someone had a finding of ‘housing related’ anti-social behaviour against them in the County Court, Magistrates or Crown Court, it then wouldn’t have to be ‘proved again’ in any other proceedings based on the same incidents. So, for instance, a criminal conviction would be incontestable as a fact in civil possession proceedings. In short, there is no need for something to be ‘proved again’ on a possession claim at all.

That bit may be nonsense, but never mind, let us move on:

There is to be a new mandatory ground for eviction for council and housing association tenants such that being found guilty of housing related anti-social behaviour in one court will provide automatic grounds for eviction in the county court.

Now the devil here is in the detail. Any kind of ‘housing related ASB’? That covers a lot of ground, from the minor but annoying to the very serious indeed. And ‘found guilty’ – does this mean a conviction in the Magistrates or Crown Court? Or the Magistrates making an ASBO or ASBI?

Then there is that word ‘Mandatory’. I realise you are a very busy housing minister – all these initiatives to come up with and residential property market tendencies to powerlessly bemoan – so you probably haven’t had time to read the blog lately. (You do subscribe to the twitter feed, but detail is everything). You may have had a bit of a briefing on a case called Pinnock, though. Suffice it to say that ‘mandatory’ is a bit more of tricky concept than it was in the recent past. Whether ‘proportionate’ under Article 8 is akin to the current test of ‘reasonable to make a possession order’ is an open question – none of us know yet, – but you either aren’t going to get ‘mandatory’ possession proceedings or you may well be looking at a declaration of incompatibility.

But annoying legal issues aside, what of practicality?

My view is entirely based on anecdotal experience, but that seems fair enough, as your press release refers to no statistical or survey evidence whatsoever for assuming that non-mandatory possession proceedings are what is getting in the way of dealing with the problem.

Your evidential justifications in the press release – the dreadful experiences of Ms Tomlinson and Ms Stenhouse – do not indicate that drawn-out possession proceedings were a problem. Possession was gained in one case and proceedings were underway in the other. In the Guardian story, the example – given by your press office – is of Ms Glover in Birmingham, again a dreadful story, in which there is no mention of possession proceedings having been brought against the perpetrator at all.

My experience is that the real problem people have is in getting their (Council/RSL) landlords (and/or police) to take any substantive action against the perpetrators at all, at least beyond a letter or two, visit and suggestion of ‘mediation’. Obviously social landlords (and police forces) vary greatly in this regard, but I gather from others and from Ombudsmen’s’ reports that a landlord’s failure to take action and implement their existing and quite extensive powers is very common, let alone acting in any joined up way with the police.

How far Councils and police will support and staff anti-social behaviour action teams in the current funding situation is, to say the least, a bit of a question. I note that you do nothing more in this regard than ‘want’ landlords and/or police to use their powers. (I want an iPad and world peace, while we’re at it).  No dedicated funding. You can, of course, blame the councils when nothing actually changes as a result of this initiative, but that would just be cynical.

There we are. Unless existing powers are actually used (and the dedicated joined-up ASB teams funded), the fact that there may be a kind of mandatory possession proceeding – although see above – is going to make no practical difference to the situation at all, as there will be as few ‘housing related ASB’ prosecutions as there are now, or even fewer.

Oh yes, there is some money – “£300,000 of Government funding to a new central team to help tenants and landlords” tackle ASB. Yep. That is about 8 mid level civil servants for a year.

And housing associations can extend ‘probationary’ tenancies – typically Assured Shortholds – to be for a period of 18 months. I have to admit I wasn’t aware that they couldn’t (or that they didn’t realise that they could).

And also:

ownership of the Respect Standard setting out best practice on preventing and tackling ASB is being transferred from DCLG to the housing sector. The Chartered Institute of Housing, working closely with the Social Landlords Crime and Nuisance Group and other key partners will lead on an early review of the Standard’s content, name and any ‘sign-up’ arrangements.

How is that going to work for local authorities, out of interest?

That is it. Of course, I could be completely wrong about all of this, as there is no detail at all in the press release or attached to it. We will, I suppose, have to see what is put forward for consultation.

In the meantime, you appear to have presented us all with a chocolate teapot.

Yours etc.

NL

SL, R (on the application of) v City of Westminster Council [2010] EWHC 3182 (Admin)

A rolled up permission and substantive judicial review hearing on the issue of whether the local authority owed a duty under s.21 National Assistance Act 1948 (as amended), with the complication that NASS had accepted a duty to accommodate in the meantime.

SL was an Iranian asylum seeker. He sought asylum on the basis that he was gay and faced persecution in Iran. His application was rejected, but he made a fresh application which is not yet determined (and the approach of UKBA may have been changed by HJ Iran v Secretary of State for the Home Department [2010] 3 WLR 386.)

In the interim SL had become homeless and a few months later was diagnosed with severe mental health problems. He was admitted to psychiatric hospital. After some time, he was assessed by a social worker from Westminster. Westminster decided no duty to accommodate SL under s.21 arose. Firstly, SL was not in need of ‘care and attention’ under s.21(1)(a), or that such support as he needed from a social worker was available whatever his accommodation arrangements. Secondly, both s.21(8) which excludes NHS care, and s.21(1A) applied. S.21(1A) provides:

“A person to whom section 115 of the Immigration and Asylum Act 1999 (Exclusion from Benefits) applies, may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely – (a) because he is destitute; or (b) because of the physical effects or anticipated physical effects of his being destitute.”

While NASS does not have to accommodate all (or indeed many) of those caught by s.21(1A), it acknowledged a duty to accommodate in this case. (The Secretary of State had been an interested party, but had been discharged earlier in the case. NASS’s position had not changed).

The Claimant maintained that the local authority owed a duty under s.21 National Assistance Act and brought a claim for judicial review shortly after the initial decision. Interim relief was granted.

By the time the claim reached hearing, the Claimant’s position was:

That the state of the authorities demonstrates that it was wrong to conclude that the claimant does not fall within section 21(1)(a) of the 1948 Act and also wrong to conclude, in consequence, that the obligation to house the claimant fell upon NASS.

The Court adopted the sequential approach set out in [2002] 1 WLR 2956. Firstly, it must be decided whether s.21(1)(a) is engaged and only then whether the exclusions in s. 21(8) and s.21(1A) apply.

However, in this case, SL’s care needs were being met by the NHS in terms of medication, therapy and occupational therapy, so care and attention was provided other than by means of accommodation:

[the Claimant] seeks to avoid this conclusion by submissions developed, first, by reference to the facts, and secondly by reference to the law. The factual submission is that, if the claimant is not accommodated by the Council, his care needs will significantly increase because he will be on the streets. Thus, whatever the position when the assessment was made, the necessary care would no longer be capable of being delivered without providing accommodation.

The principal difficulty with that submission is that, on the evidence in this case, there was no question of the claimant being homeless. NASS had accepted its responsibility to accommodate the claimant and, as the evidence suggests, were seeking to do so either within Westminster or close to it so as to avoid discontinuity in the provision of medical care. Whatever might be the legal consequences of imminent street homelessness, they do not arise on the facts of this case.[paras 17 & 18]

Further, assistance in this case was being provided outside the home, rather than care being provided in the home as in the Westminster  v NASS case.

The Claimant was infirm, but this was not enough to bring him within the exception to s.21(8) in the Westminster case, as that relied on someone first having passed the s.21(1)(a) test, which was not the case here. Care and attention was available otherwise than by accommodation. On this issue, R (Mani) v the London Borough of Lambeth [2003] EWCA Civ 836 amounted to a reformulation of the test in Westminster v NASS.

As per Lady Hale (as she was) in R (M) v Slough London Borough Council [2008] 1 WLR 1808, at para 36:

“Although M is HIV positive, his medical needs are being catered for by the National Health Service so, even if they did amount to a need for care and attention within the meaning of section 21(1)(a), he would not qualify, but, for the reasons given above, I do not think that they amount to such a need … as he does not fall within section 21(1)(a) it is unnecessary to decide whether he would be excluded by section 21(1A)”.

On the evidence in this case:

In my judgment, it would be more accurate to say that the support that the claimant needs amounts to keeping an eye on him. That is a rather different matter [to care and attention]. It imports the notion that whilst keeping an eye on him, if circumstances change, different or further interventions might become necessary. It is not, however, in my view, care and attention. On this basis also, the claimant fails to establish that he came within the criteria found in section 21(1)(a).

Permission for Judicial Review granted but claim dismissed.

Hussain v London Borough of Hounslow [2010] EW Misc 15 (CC) (01 December 2010)

Not sure why this one wasn’t written up in November. I thought we’d covered it, but apparently not. It is worth a look not just on the specific issues but as the pre-amble sets out the relevant statute and case law in some detail, including the guidance given in Holmes-Moorhouse v Richmond-upon-Thames BC [2009] UKHL 7 ; [2009] 1 WLR 413 on the approach the court should adopt in interpreting review decision letters.

This is a s.204 Housing Act 1996 appeal from Central London County Court. The appeal was from a s.202 review decision by Hounslow that Ms H was homeless, eligible but not in priority need as her medical conditions did not amount to vulnerability.

Ms H had been staying at temporary addresses, then applied to Hounslow as homeless. Initially Hounslow made inquiries into vulnerability but did not accept an application [naughty]. After solicitors got involved, Hounslow did, finally, accept an application. A couple of weeks later, the decision of not in priority need was made. On review, the review officer additionally contacted Ms H’s GP. Within a month the s.202 review decision upheld the s.184. The s.202 review letter is appended to the judgment and can be seen here. Ms H’s medical issues were: depression; gall bladder stone; high blood pressure; aches; and mobility issues, including dizziness and falling.

On appeal the grounds were:

1. The review officer didn’t apply the Pereira test in respect of Ms H’s depression.
2. A composite test for assessment of vulnerability was not applied.
3. Too strict a test was applied in relation to mobility.
4. The review officer committed a material error of fact in relation to Dr Keen’s opinion (Now Medical advice to the Authority) on depression
5. The review officer did not have regard to the risk of injury or detriment stemming from recurrent falls.
6. The review officer failed to give reasons for rejecting the GP’s opinion that Ms H was vulnerable.

Held:

On 1. Overall the review did apply the Pereira test in respect of Ms H’s depression. While it may be arguable that it would not be enough if the review had been limited to the view that depression would not “hinder you from managing your daily affairs when street homeless” (although the Court’s view was that this would be sufficient – not being hindered would mean not less able to cope than a normal person), the review had already considered the depression in earlier passages. In addition, while it was true
that:

There is no reference to depression under the heading “Composite Assessment/Comparative” (paragraphs 44 to 49). Under “Composite Assessment/Composite” at paragraph 52 is the reference of which complaint is made. This relates to one of the headings in 10.16 of the Code – each of which deals expressly with vulnerability i.e. the extent to which there is a comparatively higher risk of injury or detriment. I am satisfied that the RO did not simply ask herself the “wrong” question – whether the condition would or might deteriorate. She was, I think, considering one further aspect of the future, homeless, situation having already addressed others at paragraphs 44 to 49 (which do not address depression but do look forward to prospective homelessness and do deal with risk of injury and detriment) and having already concluded that there was no enhanced risk at paragraph 22. Other references to depression, at paragraphs 55 and 60, show the RO’s permissible and unchallenged view of the lack of severity of the depression.

Ground 1 dismissed.

On 2., whether the review applied a composite test, Ms H had argued that the review under ‘composite’ appeared to be based on para 10.16 of the code of guidance. This was wrong as 10.16 was not the composite test. Ms H was wrong on this point, para 10.16 was a sub set of 10.14, which sets out the composite requirement. While the review letter was far from clear in structure on the composite assessment. There was no clear decision after the composite section as there was after each individual problem. However, the appellant had failed to show that the composite test was not applied, even after disregarding ‘possibly self-serving’ assertions that it had been from the respondent. Ground 2 dismissed.

On 3., Ms H argued “that the RO applied too high a comparative test; being reasonably satisfied that a person would suffer injury or detriment does not require comparison with serious or complete incapacity”. The issues on conclusions on dizziness were a separate ground of appeal – see below. The reviewing officer was attempting ‘in her own way’ to describe the degree of effect of the mobility issue. There were discussions of mobility elsewhere in the review decision, mitigating would might otherwise have appeared as too high a bar, when the decision was taken as a whole ‘without lawyerly gloss’. “What the RO is saying, taken in context, is that, like normal homeless people, the Appellant was and would be able to move around and use public transport for that purpose in spite of her dizziness and proneness to falls”. Ground 3 dismissed.

On 4. Did the review officer make a material error of fact or irrational decision in view of Dr Keen’s opinion? Dr Keen had said that he did not think Ms H’s “medical issues here are disabling or prevent her from supporting herself if homeless”. The review decision stated that Dr Keen “did not feel that your depression hinders your ability to fend for yourself without injury or detriment when street homeless”. Ms H argued that this meant that the review officer misrepresented or misunderstood Dr Keen’s opinion, effectively adding ‘without injury or detriment’. Without ascribing any special status to Dr Keen’s language, or assuming he was using a shorthand as a regularly used medical advisor (who, for clarity was also the Judge’s personal GP), “it was not unreasonable for the RO to treat as implicit in his answer the absence of risk of injury or detriment”. There was in any event enough material elsewhere in the decision letter to show that a proper consideration of the depression in Pereira terms had been made. Ground 4 dismissed.

On 5.- was there attention to Ms H’s dizziness and falls, Ms H argued that her GP had “reported that the Appellant’s depression caused her to suffer dizziness which had led to recurrent falls [...] and that although the RO referred to this in the [review decision] (paragraphs 32 and 47), she did so in the context of mobility and failed to recognise it as a risk of injury or detriment”. This absence of consideration was ‘startling’ in the sense of R v Brent LBC ex p Bariise (1999) 31 HLR 50, 58, CA, suggesting the relevant matter had been ignored.While the Respondent argued that the dizziness had been taken into account in mobility and there was no medical evidence before the officer to suggest injury or detriment as a result of the falls, Ms H argued that the review officer had not pursued the issue of dizziness and reported falls with Ms H’s GP, and that relevant inquiries had not been made, particularly given the repeated references to dizziness and recurrent falls in the original s.184 decision.The review letter only mentioned ‘proneness’ to falls and did not deal with the actual, recurrent falls.

“The Appellant submitted that
i) the letter and the original decision show that the fact of recurrent falls was accepted by Ms Luty [the initial decision officer]
ii) the RO appears to have misunderstood or unconsciously misrepresented the GP’s evidence because her categorisation of the Appellant being “prone to falls” is not as serious as suffering from dizziness which led to recurrent falls. Moreover, there was no material – and therefore no factual basis – which entitled her to, in effect, discount what the GP had said
iii) the ground of appeal is that the RO failed to have proper regard to the fact that the Appellant suffered from dizziness and recurrent falls. The fact that she referred to the Appellant’s condition as being prone to falls strongly suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless.

For the Respondent it was said that, while acknowledging that neither officer had explicitly considered the risk of injury or detriment as a result of the falls, ‘prone to falls’ in the [review decision] encapsulates both the Appellant’s past history of fall(s) and the risk of future falls. One cannot be prone to falls, if one has never fallen. It was thus submitted that the suggestion for the Appellant that the wording suggests that she did not have regard to the risk of the Appellant having recurrent falls if homeless was wrong.”

Held, while the questions of dizziness and falling were addressed in the review decision in another context, there was no reference in the decision to any risk of injury or detriment arising out of dizziness leading to the risk of a fall. It was only addressed in the context of mobility. This was a startling omission in the Bariise sense. Nothing in the decision suggested a scepticism as to the dizziness and falling or its mention by the GP. As it was mentioned in relation to mobility, it was not discounted, but there was no discussion – and apparently consideration – of the physical risk from falling – either for or against Ms H.

On Ground 6, the GP’s letter stated that she was ‘fairly vulnerable’, not ‘very vulnerable. This was sufficient in itself to distinguish this case from Hall v Wandsworth LBC, Carter v Wandsworth LBC [2004] EWCA Civ 1740; [2005] 2 All ER 192; ;[2005] HLR 23 where the requirement to give reasons for rejecting an important aspect of the applicant’s case was set out.

In any event, Ms H was treated as ‘fairly vulnerable’ so the GP’s view was not rejected. Then the review letter dealt with vulnerability and the failure to refer explicitly to the GP’s opinion was not a failure giving rise to an error of law. Ground 6 dismissed.

Appeal allowed on ground 5, review decision quashed. Costs to the Appellant.

Part 1 of cases – mainly county court –  that we have missed or not heard of during 2010.

With our grateful thanks to Beatrice Prevatt of Garden Court for bringing these to our notice in her disrepair update at the HLPA conference:

Shazad v Khan. Birmingham County Court 26 August 2010

S was the tenant of a 3 bed house in which he lived with his wife and 5 children aged between 2.5 and 13 years. K was the landlord. Rent was £4200 per annum. S brought what appears to have been a counterclaim for disrepair for a period since 2005.

• 1 bedroom suffered water penetration, initially from a leaking roof, then from a blocked gutter and broken downpipe. The bedroom was unusable all year.
• 1 bedroom suffered water penetration due to defects to the chimney and was only useable during the summer
• The front door suffered from water penetration during rainfall since 2008.
• The boiler had not worked properly since 2005. It cut out unpredictably, such that heating and hot water had only been available for intermittent periods.

At trial, the DJ held this to be a serious case, particularly in view of the wholly disproportionate inconvenience and distress to the tenant’s household in comparison to the cost to rectify the defects to the landlord. Heating and hot water was a basic for life in the 21st century and their absence was unacceptable.

General damages
40% of rent in respect of the bedrooms and front door for a period of 4 years 7 months (£7700)
A separate award of £2000 per annum in respect of the intermittent heating and hot water for 4 years and 10 months (£9667. About 48% of rent)
However, the counterclaim had been limited to £15,000 so damages were capped at that amount. (The uncapped damages amount to 88% of rent for the overlapped period. Presumably the £15K was the fast track limit at the point the counterclaim was brought. Now £25K, of course.).

[NL - This is a particularly useful case in the separation of the heating and hot water issues from the other disrepair. It supports the argument that a percentage award for heating and hot water problems should be taken in addition to percentage awards for other disrepair for the affected periods, which is one that I at least have had to fight on a few occasions. The overall percentage of rent award is also at a significant level, worth using in argument by claimants.]

Ontas v Pathmeads Housing Association. Edmonton County Court 12 April 2010

O was the tenant of a 3 bedroom house for 26/03/2007 to 25/08/2008. The property was fully furnished and the rent was £255 per week, then £277 per week for 01/04/2008.

O brought a claim for:

• Defective heating and hot water for 4.5 months
• Defective windows and doors causing heat loss
• Defective conservatory roof causing damp
• Damp and missing light to downstairs WC
• Minor kitchen sink blocking
• External dilapidations
• Broken glazing for a period of 3 weeks, which had caused problems with ‘local drunks’ thinking the property was unoccupied
• Disrepair enabling access for mice leading to serious infestation.

General damages: Global award of £5000 (about 28% of rent over the whole period)
Special Damages: £315
Interest from date of issue.

[NL - it is noticeable that this is only one of two Housing Association/Council cases. Pathmeads now possibly being a repeat offender in 'fighting daft disrepair cases'. It is rare for such cases to get to trial these days - any viable case will usually be settled, at least with half decent advisors. So it is cases against dodgy private landlords that we by and large must look to for the Courts' views on quantum.]

Bernard v Meisuria. Central London County Court 22 November 2010

B was the tenant of a 5 bedroom house, with his disabled wife and 5 children. B brought a claim for:

• Rat infestation from 2005 to March 2009, when they moved out.
• Dampness to one bedroom
• Defective wiring
• Defective boiler for a briefer period

At trial and on contested evidence between the tenant’s EHO and the landlord’s pest control officer and CCTV expert, the Judge found that the rat infestation emanated from drains which were in disrepair.

Damages:
£20,000 in respect of the rat infestation, including the special damages, on the basis that a property infested with rats had little rentable value.
£1250 in respect of the other disrepair

Indemnity costs and interest on the damages and costs at 1% over minimum rate from 24/12/2007 as the tenant had beaten his Part 36 offer.

[NL - frustratingly, given that this was a pest infestation consequential to disrepair, rather than a common law nuisance claim, we don't know what the rent was here. From the Judge's reported view, it would seem that the diminuition in rent must have been very high - near 100%. But I don't think that the reported basis - the 'rentable value' of the defective property - is the correct assessment, or more generously, the correct way to describe the assessment.]

Photis v Shamas, Uddin and Shamas. Bow County Court, 3 December 2009

P was the tenant of the property. She claimed for the period March 2004 to January 2009:

• Sagging ceiling in the living room due to leak from overflow to the bath above
• Front door didn’t open or close properly during winter months
• Broken patio door
• Defective bedroom window
• Damp to one bedroom
• Rodents from adjoining property owned by the LLs.
• Special damages included damaged laptop caused by leak to living room from the bath after P had been told by the LL’s that the problem was fixed.

The CJ accepted that there was significant disrepair although the property was habitable. P had been unable to have a bath or shower due to worries about the overflow leaking. The patio door was a security risk and the front door a security and fire risk.

Damages:
20% of rent March 2004 to July 2007
25% of rent July 2007 to January 2009 (as the problems and rodent issue had worsened)

The rent was
£520 pm 03/2004 to 06/2005
£600 pm 06/2005 to 09/2006
£650 pm 09/2006 to date

General damages of £7455. Special damages of £400. Interest on general damages of £211

Smyth v Circle Anglia. Clerkenwell & Shoreditch County Court 2010 (settled)

S was the tenant of a 1 bed flat. He brought a claim for the period 30/07/2007 to 25/02/2010 for:

• Water penetration to living room from balcony above.
• Condensation dampness throughout

After 25/02/2010, S had been rehoused to enable remedial works to be carried out, including installing ventilation to bathroom and kitchen, thermal insulation to external walls, ceiling and floors.

The condensation claim was on the basis that the tenancy agreement required the landlord to keep the property in ‘good condition’.

S obtained default judgment. The LL’s application to set aside default judgment was refused on the basis that there was no explanation of the failure to file a defence or comply with the pre-action protocol. The claim was settled for damages totalling £10,000. (Over 75% of rent of £90.94 per week)

[NL- OMG. Without seeing the exact wording of the tenancy agreement it is hard to tell if it fell into the Welsh v Greenwich LBC (2001) 33 HLR 40 CA exception to the usual rule of no landlord liability for condensation. But clearly the bright spark running the claim thought that the commitment to keep the property 'in good condition' did mark a significant additional commitment over s.11 'repair', well spotted if so. I'd expect the issue to go to trial, but the tenant also got lucky in Circle Anglia's catastrophic failure to actually deal with the claim in any way! A useful reminder to claimants' advisors to always pore over the tenancy terms, even if it will be once in a blue moon...

Good to see a court imposing some sort of sanction on failure to compy with the pre-action protocol. This doesn't happen often enough - the protocol requirements are clear and there is no good reason why landlords should not comply, but they often don't in my experience. Perhaps the courts could consider some form of sanction at allocation stage, as non-compliance otherwise gets lost in the ongoing claim.]

To begin by looking backwards, the numbers for Nearly Legal in 2010 were:

• Posts: 281 (a post every 1.3 days on average)
• Average page views per day*: 613
• Busiest day for page views: 1,737 (3 November)
• Average page views per month*: 19,995
• Highest page views per month: 28,638 (This was November –  Pinnock, I think)
• Subscribers by email and RSS: 987
• Real Comments: 1,154 (thanks to all who commented)
• Most commented post: 82 comments – ‘On the Naughty Step – drop the dead donkey redux‘

( * these would both have been higher, but I messed up a detail during the change of servers in January which meant we were completely invisible to Google, Bing etc. until June when I finally worked out what I had broken. Well done me.  After June, the average page views were: per day 833 and per month 23,066).

In short, more people visited Nearly Legal more often than in 2009 and commented more frequently, despite my inadvertent efforts to wipe us off the face of the internet. This makes us happy. For a thoroughly niche and specialist law blog, we are astonished by these figures.

What makes us even more happy is that people have been good enough to send us news and transcripts of their cases as judgments were handed down and have kept us up to date on on-going appeals. And then over the course of the year, quite a few people have said very complimentary things to me in person about NL, for which thanks. It is always good to know that our efforts are of use to others – any praise is of course for the whole team.

While on thanks, a particular debt of gratitude is owed to Tessa Shepperson of landlordlaw, whose help and support in providing new server space has been invaluable for the last year and for the future. We do this for the love of it, but Tessa stepped in with material assistance when it was needed and that support has been hugely helpful.

Looking forward…

In the short term, I’ve made a couple of tweaks.

Over the last year or two, the information in the sidebars has grown. The list of links had increased, I had introduced a new larger category list and the feeds of Supreme Court judgments were added to the Admin Court and Court of Appeal. This meant that the sidebars were getting rather overloaded and unwieldy. So I’ve moved all the links to housing law sites and resources, and the other law sites, to a dedicated links page – available via the top menu. This does mean they are a click away from the main page, but something had to give…

I’ve updated some of the links. I’ve also updated and re-jigged the news feeds page, sadly dropping some sources that were moribund and others that I simply couldn’t keep successfully page-scraping for updates. (The culprits here being Garden Court Chambers housing bulletins and Arden Chambers eflashes. Everyone else can ignore the following slightly geeky rant. If anyone responsible for those pages is reading,  I had to set up scripts to parse the code of your  webpages, pull out the relevant entries, turn that into an RSS feed and then keep scanning for updates. Then the scripts broke because the coding of the pages changed or was inconstant. I set up new scripts. After a while they broke, because the page coding wasn’t constant and/or the page address changed. I just haven’t got the time to keep doing this. Can it really be so tricky to set up an RSS feed? That way we can actually send traffic to your sites as well as spreading your attributed material. Rant over)

Looking further forward, all the numbers are thoroughly depressing. At various points during 2011/12 we are promised:

• Maximum housing benefit level: £400 pw for a three bed house
• LHA set at bottom 30% of market rent range.
• Age at which HB will pay for more than a room in a shared house: 35
• ‘Affordable’ tenancies at ‘up to’ 80% of market rent and for 2 years term.
• projected loss of legal aid income to not for profits: 92%
• projected loss of legal aid income to Law Centres: 50%
• across the board reduction in fee income: 10%
• reduction in matter starts: 500,000

Still, while the future may be murky, having been a First Capital Connect commuter on the Thameslink line over the last 6 weeks, I have looked fear, doubt and uncertainty in the face far too often to be worried by a mere threat to the existence of our practice.

And for NL? Well, as long as there are still all or some of us left to do this, we’ll carry on in our own peculiar fashion. I’ve been toying with ideas with a large scale redesign and re-organisation of the blog, which may or may not happen, but otherwise, there are no plans for major changes. And thanks to Tessa, no need for paid ads, sponsorship or indeed begging. We intend to remain independent and unabashedly selfish – we will do what interests us.

Hopefully, that will continue to interest you too and you’ll all be with us into 2011 and beyond. As ever, we welcome any news on cases, including in the County Court -particularly on interesting points of law and always on assessment of quantum. And there are some cracking and important cases in the Court of Appeal and Supreme Court coming up.