Nearly Legal

You know how when you search for something that isn’t there on NL, it comes up with that (quite annoying) “well, that’s embarrassing” logo?  Well, I searched last night for Vilvarasa v Harrow LBC [2010] EWCA Civ 1278 but couldn’t find it.  Then, it struck me that maybe it was embarrassing and I’d said I’d do it back in November when it came out (in response to one of NL or the Chief’s lists that they regularly produce of what’s interesting) but hadn’t done it.  I could have kept quiet, but Vilvaras is really quite significant on the section 193 duties.  So, somewhat belatedly, we come to this really rather important limitation on Ravichandran v Hounslow LBC (which in turn confined Omar v Birmingham CC to its own facts).   The issue concerns the section 193 duties and, more specifically, the differences between those duties.  Ravichandran sought to provide an overview and rationality to what otherwise seemed something of a ragbag, and an inconsistent one at that.  It was concerned with the section 193(7) waiting list offer (suitable, reasonable and discharge of duty – all reviewable).

In Vilvarasa, on the other hand, the Court of Appeal first had to determine which duty Harrow were seeking to employ and then had to face a really rather difficult (and clever) argument from Iain Colville for Vilvarasa, which, frankly, the Court of Appeal met with the meat cleaver of Holmes-Moorhouse.  Anyway, the facts:  Harrow owed the main homelessness duty to Mr Vilvarasa.  It sent him a letter informing him that it was offering him temporary accommodation under section 193.  The CA found that this letter was clearly referring to a section 193(5) temporary accommodation offer.  The letter didn’t identify a particular property.  One was subsequently identified which Mr Vilvaras refused, whereupon Harrow sent him a decision that the property was suitable and reasonable.  They gave him a further opportunity to take the property and review it, or reject and review it. Mr Vilvarasa took the latter option and was unsuccessful on review.  The review decision found that the offer was suitable and reasonable and discharged duty.

The first ground of appeal was that Mr Vilvarasa hadn’t been given all the information (ie the identity of the specific property) at the time of the offer.  The offer was clearly made under section 193(5), even though it referred to reasonableness and was not specific in the offer letter – it was an offer of temporary accommodation.  Iain Colville’s point was that the actual specific property could have been identified at any time in the future and all the information needed to be given at the time of the section 193(5) offer.  That didn’t wash with this CA, which said that this was fact specific – if there had been a very long period elapsed between the letter and the identification of the property, you might be in with a shout but that wasn’t this case.  In any event, the point from section 193(5) “… is merely that the required information must have been supplied by the time the applicant refuses. There is in fact nothing in the statute to require the relevant information to have been given by the time the offer is made” (at [26]).

The second ground of appeal was where it got interesting.  Iain Colville argued that Harrow had treated it throughout their decision-making on refusals and reviews as a section 193(7B) offer, hence the significance of them saying that the offer was “reasonable”.  The argument was that “suitability” for the purposes of sections 193(5) and (7B) involve rather different considerations – indeed, one might say that was the whole point of Ravichandran (and, one might say by inference, Awua).  The CA’s dismissal of that argument is less than convincing, in my humble opinion.  They say first that Harrow were clearly dealing with it as a s 193(5) offer; they considered suitability in the review process and the rest was essentially just otiose; Ravichandran was a case where the local authority were trying to change tack mid-stream (if that doesn’t mix metaphors) and so was distinguishable; “it seems to me completely unrealistic to think that it was nonetheless addressing itself to suitability as if this was a subsection (7B) case” (at [37]); and, in any event, Holmes-Moorhouse:

In my judgment this is precisely the kind of case in which Lord Neuberger’s approach is particularly apposite. The blunt truth is that, in the final analysis, Mr Vilvarasa is seeking to take advantage of a minor slip by a local authority in circumstances where it is idle to imagine that this slip could possibly have affected either the substance or the fairness of its decision. (at [39])

All of this just seems thoroughly unconvincing and I wondered whether Iain Colville is seeking leave to appeal (but, if he had, I suspect that the UKSC would have heard it by now).

Sorry for the delay – I’m off to my other guilty secret, “The Good Wife” …

Without further ado, a hodge-podge of Equality and Human Rights updates.

Firstly, the Deputy Prime Minister and the Secretary of State for Justice have finally launched the long expected Commission on a UK Bill of Rights. The Commission comprises a number of human rights and constitutional law experts and, er, some people who are presumably Cameron’s kind of people. The UK Human Rights Blog has a better analysis of the qualifications of the various members. The terms of reference, as expected, do not include the option of complete withdrawal from the Convention. What they do include is:

“The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

It will examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

It should provide advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.

It should consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.”

Next up is the announcement from Theresa May that the Equality and Human Rights Commission is up for an overhaul. There is a consultation covering three areas:

“1) Clarifying the EHRC’s remit. The government will amend the legislation that established the EHRC, the Equality Act 2006, to clarify the Commission’s core functions. This will allow the EHRC to focus on the work that really matters, where it alone can add value. At present, vagueness in the Equality Act, for example, the duty to “promote understanding of the importance of equality and diversity” has led to the EHRC undertaking a wide range of activities that are not regulatory in nature, including running summer camps for young people.

2) Stopping non-core activities. One of the causes of the Commission’s difficulties was the breadth of its remit – extending beyond its core role to, for example, operating a helpline and grants programme. The Commission has struggled to do these things well in the past, so we have decided that we should not fund it to do them in the future. The evidence suggests that this work could be done better or more cost-effectively by others.

3) Improving transparency and value for money.Problems with financial controls mean that each set of the EHRC’s accounts have been qualified since its creation, and it has struggled to deliver value for money. Today’s proposals include a legal requirement for the EHRC to publish an annual business plan in Parliament, and comply with the same rules as all other public bodies when spending money. Where the Commission fails to show that it has spent taxpayers’ money wisely, financial penalties will apply.” (emphasis added – nice for them to at least let respondents know which bits there is no need to reply on because the decision has already been made)

It may come as some surprise to the EHRC that the helpline and grants programme are part of the causes of the Commission’s problems, given that they were the source of some pride in the report published to celebrate the EHRC’s first year ‘One Year, Ten Stories’ (PDF) – mind you, so were the summer camps, and I always thought that they were a bit rubbish.

The consultation is open until 15 June.

We then turn to the Equality Act 2010 (and, if I may be so bold, you may wish to consider our earlier effort on that Act).

The expanded public sector equality duty, contained in s.149, is still due to come into force on 5 April 2011, but the specific duties designed to underpin the general duty are not ready. Therefore, the general duty will come into effect without any specific duties at all. While for some of the protected characteristics this will still be a step forward, for race, gender and disability it will be a significant retrograde step until the specific duties are also in place. For instance, it may be noted that the requirement to have equality schemes derives from the specific duties in regulations. You can find general information from the GEO here, and the policy review paper on reducing bureaucracy here (PDF). The general indication from those is that, when the new specific duties come into force, there will still have been a retreat in respect of the existing duties. You may think it odd that after a consultation exercise and the publication of draft regulations covering the specific duties, the Government feels that it needs to publish a policy review paper and reconsider this. If you did, you’d be right.

In other Equality Act news, the Chancellor (that’s right, the Chancellor) has announced that s.14 of the Equality Act 2010 will not be implemented as those “costly … rules” are part of “£350 million worth of specific regulations” being chucked in the rubbish bin. Lest we forget, s.14 was designed to target dual discrimination where someone is discriminated against because of a combination of two of the protected characteristics. The detail, such as it is, is in the ‘Plan for Growth’ – see pp.7, 18, 23 & 53 of the PDF. Interestingly, it isn’t until p.53 that HMT/BIS reveal that the much vaunted £350 million figure is, well, not supported by any published evidence. Not implementing s.14 of the Equality Act is part of a package of four measures. For three of these impact assessments of the costs have been published, which produce a whopping total of £4.3 million a year. So the massive £350m? Well that comes from not extending the right to request time to train to businesses with fewer than 250 employees, which would have cost businesses “up to £350 million a year”. And the source for that figure? BIS estimates. Ah well, as long as they’re using a firm evidence base, eh?

Look, what HMT and BIS do about requesting time off to train is really not the concern of a housing law blog. And if GEO (you know, the Department responsible for the Equality Act) found that there wasn’t evidence to support s.14 then so be it, although it would be surprising after they consulted on precisely that issue. But please, don’t tell us, as the Chancellor did that “£350 million worth of specific regulations will go – including the Equality Act’s costly dual discrimination rules”, because that is incredibly and unnecessarily misleading. Still, we’re all in this together.

Finally, you know when sometimes you get an intense feeling of deja vu, which must be down to a glitch in the matrix? Well the GEO is consulting on banning age discrimination in goods and services. Open until 25 May, giving you plenty of time to find your old responses and change the date and title on them.

*I really wanted to use this, but you try getting those characters into a WordPress title.

First of all, a guilty secret: I love Silk, the BBC show.  It makes my Tuesday nights.  It is completely and utterly implausible but take it for what it is – fiction and drama – and it’s a great show.  After a late Supper, my partner called me and said there was another programme which I must watch on BBC.  So I sat and shouted at “Neighbourhood watched” – a title which pretty much sums up much of the literature on the governance of social housing.  It’s a real-life documentary, apparently a series, following housing officers of two or three PRPs trying to manage their properties.  In the main, the housing officers appear to be true to type – committed and sensitive, trying to do their best for their residents.  But, by contrast to the fiction of Silk, there are some pretty appalling misrepresentations of the legal position of at least some of the occupiers.  Last night, for example, the voice over in relation to one such household said “Mr Ali and his wife have separated so his joint tenancy has ended”.  Well possibly, but the word “so” in the sentence hides a multitude of procedural steps before the termination of the joint tenancy, and advisers might have wanted to ask a series of questions about it all.  He was an over-occupier and the allocations officer was trying to do her best to re-house him but on the assumption that he would otherwise be evicted without question (setting up what for the PRP was a novel three-way domino allocation).  Then there was another situation where a grandma had been allocated a property on a warden-controlled estate and her grandson was causing hassle and nicking her money.  He was convicted for the latter but without a CRASBO having been applied for – or at least, it did not appear so as the PRP was going for an ASBI with power of arrest. So, one felt, this issue could have been resolved at an earlier phase.  Then there was the estate which was going to be redeveloped before the new government pulled the funding (I think I’ve got that right but, if that was the case, it might well have been a reviewable decision).  The remaining occupiers were living in HHSRS Category 1 properties by the look of it (subject of course to an assessment).  The housing officer held a meeting at which the residents rightly complained about the delay in their decanting, but there seemed to be issues over the transfer.  The housing officer was obviously trying to do her best, and really trying to do so, and had raised some money to partly refurbish the properties for the winter, but really …  I left the room after that for a long soak (alcohol) and rant.

What are we to make of it?

The Mayor of London (Greater London Authority) v Haw & Ors [2011] EWHC 585 (QB)

You may remember that there has been some previous litigation (the most crucial of which we reported on here) between the Mayor of London and various persons protesting on or around Parliament Square. If you have actually seen the Square recently you will be able to observe the extensive security fencing and the remaining tents which will be enoughto tell you that the issue is not yet over and that previous victories for the Mayor have not been sufficiently crushing to the spirit of the protesters.

In summary the position when we left it was that the Court of Appeal had given orders which removed the majority of the protesters from Parliament Square Gardens, or PSG for short (the grassy bit in the middle of the Square which you can dimly see behind security fencing). However, Brian Haw, the original protester really having been there since some point in 2002, and Barbara Tucker, resident since late 2005, along with one other person were not removed from the site pending a review of the proportionality of removing them from the site as against their rights under Articles 10 and 11 of European Convention on Human Rights (the rights to freedom of expression and freedom of assembly respectively).

I should stress here that the issue of whether the protesters could encamp on the pavement is not the issue in this case (or the previous one before the Court of Appeal). The Mayor does not control the pavement, only the grass. Proceedings by Westminster City Council (who do control the pavement) to obtain an injunction against the protests continuing on the pavement are currently ongoing. The issue before the Court then was a consideration of medical evidence produced by Mr Haw that being removed from the grass onto the pavement would negatively impact on his health (he has an ongoing back condition and is beign treated for lung cancer) and his safety (due to the risk of assault by passers by and the increased risk from traffic). This would prevent him carrying out his protest effectively and could end it altogether. In addition both Mr Haw and Ms Tucker asserted that their rights under articles 10 and 11 which had been exercised for a considerable period of time should supersede the Mayor’s right to possession, especially given the very low impact their protest makes on the public. Both Defednants sought to distinguish themselves from the far larger Democracy Village protest which was effectively ended by the earlier Court of Appeal decision going so far as to call the organiser of that protest and agent provocateur employed by the Mayor to discredit them (the Court did not accept this assertion). The third Defendant did not appear and was not represented at these proceedings.

The Court first considered the views of the Court of Appeal that the Defendants would find it very hard to show that their rights under articles 10 and 11 would be violated if they were removed from PSG on the basis that they could still protest even if they then had to sleep elsewhere. The Court also noted that the medical evidence provided for Mr Haw did not support the contention that he needed to remain on the grassed area rather than the pavement due to his back problems.

In short the Court held that the possession order should be made and I can put the reasons no better than the Court did itself:

First the Defendants seek to exercise their Convention rights indefinitely in a manner and at a location of their choosing; while I acknowledge that following the letter of 7 July the First Defendant sought permission for a demonstration for a fixed duration this case has proceeded on the basis that both Defendants claim to be entitled to exercise their Convention rights indefinitely upon PSG. Second, PSG is not a suitable location for prolonged camping; such camping is incompatible with the function, lawful use and character of PSG and it is also inconsistent with the proper management of the area as a whole. Third, members of the public have been and would be precluded from using the area occupied; the area in question is the area nearest to an important entrance to the Houses of Parliament. The Defendants ought not to be permitted to occupy this area of land indefinitely when they are trespassers notwithstanding the fact that significant numbers of people may support the aims and objects of their protest. Fourth, the Defendants have exercised their Convention rights from this location since September 2009 and for a significant period of time in 2006/2007. That, on any view, amounts to a very substantial period of time during which the Defendants have exercised their rights entirely as they would wish. Fifth, there is no reasonable possibility that the Defendants would be authorised to carry on their protest in the manner in which they have done so since 2009.

A separtate argument was made that Mr Haw was disabled and that the Claimant was, in its treatment of him required to make reasonable adjustments to accomodate his disability and when applying any provision, criterion, or practice to him not to put him at a disadvantage when compared to non-disabled persons as required by s20(3) Equality Act 2010. The Court dismissed this argument very briefly on the basis that there was no identified provision, criterion, or practice by the Mayor which was putting Mr haw at any for of disadvantage.

Bank of Scotland v Pereira & Pain & Pain [2011] EWCA Civ 241

This is a rather odd one. Although the case involves fraudulent sale and rent back agreements, mortgage possession and a rescinded sale and transfer of title, that isn’t why we’re writing it up. The reason this Court of Appeal case is worth attention is that it deals with, and gives guidance on, the routes available to someone seeking to overturn an order at trial that they did not attend, and specifically the interrelation of an application to set aside under CPR 39.3 and an appeal of the original order.

The background was that Mr and Mrs Pain owned their home. They were short of money to fund litigation they were engaged in on behalf of the family firm.  They met a Mr James:

who said that he could arrange for them to sell the Property, on terms that they could continue to live there rent free for the rest of their lives. In order to induce them to do this, he told them that, if they did so, a company he controlled, Styllpoint Ltd, which had £11 million of assets under its control, would provide them with access to funds of £250,000 to assist them with the legal costs of the litigation in which they were involved.

Mr James agreed with, or persuaded, Ms Pereira, who was in a relationship with Mr James at the time, to be the contracting purchaser of the Property, and that was accepted by the Pains. The purchase price was recorded in the paperwork as being £276,000. To enable Ms Pereira to purchase the Property, the Bank agreed to advance her £238,000, which was to be secured by way of a first legal charge over the Property. On 23 January 2004, the purchase was completed, and the Pains transferred the Property to Ms Pereira in return for £238,000, the balance of the recorded purchase price of £276,000 being pure fiction. Shortly thereafter, Ms Pereira was registered as the proprietor at the Land Registry, and the Bank’s charge was registered against the title.

The £238,000 was paid to Styllpoint rather than the Pains, who received no benefit from that money, save to the extent of £10,109.96 which was used to discharge an existing registered charge over the Property. Furthermore, the Pains never got access to the alleged £250,000 funds, promised by Mr James: this was unsurprising, as the funds plainly never existed.

Styllpoint made a few mortgage payments, then stopped. In 2006, the bank brought possession proceedings against the Pains as occupiers and against Ms Pereira as registered title holder. The Pains defended and counterclaimed against Mr James (now in prison) and Ms Pereira for rescission of the transfer and, by a late amendment, for damages. Ms Pereira did not defend the claim or counterclaim. Trial was listed for 21 June 2007. On 12 June 2007 Ms Pereira wrote to the Court asking for an adjournment and on 20 June 2007 Ms Pereira apparently faxed the court to say she wouldn’t be there (she later claimed this was a forgery). The hearing went ahead, Ms Pereira not attending.

Judge Milligan ordered

• The Bank recover possession of the Property;
• Ms Pereira pay the Bank £298,183.60, being the sum loaned plus interest and costs;
• The sale and transfer of the Property be rescinded, and the title be rectified accordingly; and
• Ms Pereira pay damages to the Pains, such damages to be assessed following completion of the sale of the Property, and to include the Pains’ costs of the proceedings

A letter, apparently from Ms Pereira was sent on 5 July 2007, asking for an extension of time to appeal. Ms Pereira later claimed this was forged.

In July 2009, over 2 years later, Ms Pereira applied under CPR 39.3 to set aside the part of the order dealing with rescission and damages. This was rejected by Judge Ellis on the basis that Ms Pereira knew of the hearing and had no good reason for not attending. Further, she had known the result of the hearing shortly afterwards. Time for acting promptly therefore ran from early July 2007 and she was way out of time. Even on her own case that she first knew of the judgment in February 2009, the 7 month delay was not ‘acting promptly’, regardless of her argument that her then solicitors had caused the delay.

Ms Pereira then i) appealed the decision of Judge Ellis not to set aside to the High Court and ii) appealed the original order of Judge Milligan to the Court of Appeal, seeking permission to appeal out of time. Both applications were joined in the present hearing.

The initial and main issue was the interrelation of making an application under CPR 39.3 to set aside and applying for permission to appeal that same judgment.

On CPR 39.3, the 3 part rule was clear and strict, however:

the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant’s conduct; similarly, the court should not pre-judge the applicant’s case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.

On such concurrent applications, in Tennero Ltd v Arnold [2006] EWHC 1530 (QB), an application to appeal an order following the rejection of an application to set it aside under CPR 39.3, was dismissed as an abuse of process. Jack J had held that to pursue both routes was an abuse, that the applicant did not have a choice and that CPR 39.3 provided the appropriate route. Tennero was distinguished by the Court of Appeal in Attorney General of Zambia v Meer Care & Desai [2008] EWCA Civ 754, on the basis that the appellant in that case had fresh evidence and other grounds of appeal. However, “where there was no basis for a separate appeal, and where the appellant had taken the proper course, applying under CPR 39.3″, Jack J’s reasoning was agreed with.

The Court of Appeal in the present case sought to clarify the position. Lord Neuberger set out six points of guidance which would apply ‘in the great majority of cases’.

1. “Where the defendant is seeking a new trial on the ground that she did not attend the trial, then, even though she may have other possible grounds of appeal, she should normally proceed under CPR 39.3, provided she reasonably believes that she can satisfy the three requirements of CPR 39.3. The fact that she wishes to raise other arguments for attacking the trial judge’s decision should not preclude her proceeding under CPR 39.3, because that is the specific provision which applies if she did not appear at the trial (and gives her a potential right to a new trial) as Jack J pointed out. Further, if she has a retrial, the other arguments which she wishes to raise could be raised at the retrial (and they may be considered by the judge who hears her CPR 39.3 application).” If no CPR 39.3 application was made, this does not rule out an appeal, but that would normally require unusual facts.

2. “If the defendant concludes that she cannot establish that she had a good reason for not attending the trial and/or that she made her CPR 39.3 application promptly, it would obviously be silly for her to make a CPR 39.3 application. In such a case, she can nonetheless seek to appeal against the trial judge’s decision in the same way as any other defendant.” Simply because the judgment was made in the appellant’s absence did not remove their appeal rights in principle, if the decision or a decision in the course of the hearing was appealable. However, this is ‘in principle’ and the appellant would likely face greater difficulties, not least because the appeal would almost inevitably be made out of time and the appellant would be more likely to have to persuade the appellate court to let them adduce evidence or raise arguments of law not adduced or raised at trial. See 5. below.

3. “Where a defendant makes an application under CPR 39.3 and that application fails on the ground that she had no good reason for not attending the trial and/or that she did not make her CPR 39.3 application promptly, it seems to me that her right to appeal the trial judge’s order should, in principle, be no different from what it would have been if she had not made the CPR 39.3 application. Unless she appeals against the dismissal of her CPR 39.3 application, she would not be able to argue on any attempt to appeal the trial judge’s order that the judgment should be set aside simply because it was given in her absence”. However, if the appellant had made written application for an adjournment and been refused, that would be open to appeal, even if the CPR 39.3 application had been rejected. Further, “where a defendant seeks to appeal against the trial judge’s order after making a failed CPR 39.3 application, I do not consider that, in the light of the discrete and interlocutory nature of a CPR 39.3 application, strict issue estoppel would apply on any question of fact so far as the appellate court is concerned. However, the appellate court considering an appeal or an application to appeal should take a great deal of persuading before departing from a conclusion expressed by the judge who heard the application to set aside”.

4. “Where the defendant has made a CPR 39.3 application which failed on the ground that her arguments on the substantive issues would have no prospect of succeeding at any retrial, she should not normally be entitled to raise the same arguments through the medium of an appeal against the trial judge’s decision. The proper course would usually be to challenge the refusal of the CPR 39.3 application on this ground. However, there will be exceptional cases. For instance, where the CPR 39.3 application was also refused on the grounds that there was no good excuse for not appearing at the trial and/or that there was a lack of promptness in making the CPR 39.3 application, it may well be pointless to appeal the refusal, as it would be upheld on those grounds. In such a case, at least as at present advised, I think it would be wrong if the defendant were precluded from seeking permission to appeal the trial judge’s decision, simply because she was seeking to say that he was wrong for reasons which had been rejected in her CPR 39.3 application.”

5. “Where the defendant’s CPR 39.3 application fails, she will normally be in severe difficulties in seeking to contend, by way of appeal against the trial judge’s order, that she should be entitled to rely on evidence which was not before the trial Judge, or that she should have a retrial. In such cases, the appellate court’s approach must depend to some extent on the facts. In general, the appellate court will bear in mind not only the requirements of CPR 39.3, but also the post-CPR application of the Ladd v Marshall principles”. If the new evidence would not have been reasonably have been available at trial even if the appellant had attended, then the usual Ladd v Marshall principles would apply, as that ground of appeal would not be related to non-attendance. However, if the appeal was based solely on evidence that would have been presented at trial and thus on non-attendance, “if she has already failed in her CPR 39.3 application, it seems to me that to allow her to appeal against the trial judge’s order on such a ground would involve letting her in through the back door after having firmly locked the front door”. This would be wrong in principle and against the policy of CPR 39.3.

6. “If the defendant makes no CPR 39.3 application, but appeals the trial judge’s decision and seeks to put in new evidence or an order for a retrial, very similar considerations seem to me to apply. However, as it will not have been determined whether the three requirements of CPR 39.3.5 have been satisfied, the appellate court may have to make that decision for itself (unless it decides that the defendant should first have applied under CPR 39.3 to set aside the trial judge’s order (in which case the appellate court may nonetheless decide the issue itself, remit the issue to the court below as a CPR 39.3 application, or make some other appropriate order)”.

On Ms Pereira’s appeals:

There was no basis for challenging the refusal of the application under CPR 39.3. Judge Ellis’ finding that she had not acted promptly and did not have good reason for not attending trial was fatal for her.

The appeal from the original judgment of Judge Milligan was also dismissed. While Ms Pereira’s evidence that she was nothing more than the agent or appointee for Mr James/Styllpoint would have an arguable prospect of success against the damages order, although not the rescission order, this was not new evidence. It was evidence that would have been reasonably available at trial had she attended. It therefore fell under guideline 5 above. The appeal was dismissed.

Comment
The guidelines are useful, making it clear that a CPR 39.3 application and an appeal are not mutually exclusive, but also setting out the circumstances in which a failed CPR 39.3 application (or the failure to make one) would be likely to doom any attempt to appeal the trial judgment.

Entirely unrelated to the judgment or the guidelines, there is one more passage that I have to quote, including Lloyd LJ’s dry and restrained comment, because behaviour of this kind by a solicitor should not pass without note:

At first the Pains were represented in relation to the transaction by Buchanan & Llewellyn as their solicitors. That firm asked pertinent questions of Soorii Ayoola & Okri, the solicitors acting for Ms Pereira, about the relationship between Ms Pereira and Styllpoint and as to the fate of the proceeds of sale. If these points had been persisted in, the Pains would probably have been saved from entering into the transaction. No doubt because these properly raised queries did put the transaction in jeopardy, and no doubt at the instance of Mr James, on 12 January 2004 the Pains instructed a different firm, Winman Okri, as their solicitors. They confirmed to those solicitors that they expected to receive no money from the transaction other than the benefit of the payment of debts, including the discharge of the prior mortgage, and that the balance of the purchase money would be paid by the purchaser’s solicitor directly to Styllpoint, represented as being a creditor. The new solicitors were content to proceed on those instructions, possibly helped by the fact that Mr Okri was not only practising alone under the style Winman Okri but was also the senior partner of the firm of Soorii Ayoola & Okri.

I don’t read the Daily Telegraph. Frankly I’ve failed to see the point since it stopped featuring details of the salacious trial of the day as a regular fixture on page 3, because the rest of it was preposterous blimpish nonsense, mainly full of regret that Britain ever came off the gold standard. I was dimly aware that it had a re-design some years ago and was trying to be hip, which is like Tunbridge Wells re-branding itself as Barcelona, or the journalistic equivalent of dad-dancing.

Still, it is a broadsheet newspaper, with small print, a serif typeface and the occasional long word, so it has pretensions to being the kind of paper that writes about fairly important things and does so, by and large, accurately. Of course we can discount the comment section, but the news on those big broadsheet pages is different, surely?

I didn’t want to have to do another ‘media reports housing law badly’ naughty step so soon, really I didn’t. But the Telegraph and Ken Clarke’s merry band of ‘senior sources’ at the MoJ have driven me to it.

This time, we are to be reassured that big Ken is taking tough steps to rid us of the plague of squatters who are forcing millionaires out of their homes, then occupying them for 10 years and claiming adverse possession. No such slippery behaviour and legal loophole is going to get past our Ken, and the Telegraph is here to tell us why new laws are needed and how the proposed new law differs from the old.

But this time, unlike the Daily Mail, we have by-lined journalists to be rude about: Tom Whitehead ‘home affairs editor’ and Peter Hutchinson.

Let us start with Tom Whitehead’s explanation of why a change in the law is needed, under the headline ‘Squatting to be made illegal’.

The new law will end the “nightmare” of home owners having to fight lengthy legal battles in the courts in order to evict squatters. Instead the police will be able to force entry and arrest anyone who has occupied a property.

There are an estimated 100,000 incidents of squatting every year with victims including Guy Ritchie, the film director. [...]

One squatter group, known as The Really Free School, has occupied a series of properties in London, including a building in Bloomsbury Square belonging to an antiques expert and a £6 million house owned by Mr Ritchie. Then they took over an empty pub near Oxford Street before moving on to another near Leicester Square.

Earlier this year, businessman John Hamilton-Brown was reduced to begging through his own letterbox for squatters to leave his £1 million home.

In 2009 squatters moved into David Blunkett’s former grace and favour mansion in central London while others took over a £33 million house close to Nigella Lawson’s home in Eaton Square, central London.

So, why are millionaires being reduced to begging through their own letter boxes? Why is Nigella Lawson having to be troubled by having a house near her home taken over?
Because:

Squatting is not currently a criminal offence in England and Wales and instead it is up to the owners to use the civil courts to enforce their rights, which can turn in to lengthy and expensive legal battles.

They must also prove to the courts that they are either a ”displaced residential occupier” – someone who has returned from holiday to find squatters in their house – or a ”protected intended occupier”, who is intending to move into an empty property.

In contrast, squatters are also protected by other laws, including the Criminal Law Act 1977, which prevents a home owner forcing their way back in because it makes it an offence to use violence to gain access when there is someone on the premises who is opposed to entry.

They can also take advantage of the controversial law on “adverse possession”, which can allow someone who has occupied a building for 10 years to claim ownership of it.

As anyone should know, particularly if they read Francis’ demolition of an Evening Standard story 5 months ago on this very blog, this is in large part utter nonsense, bilge and hogwash.

If one is a displaced residential occupier, or protected intended occupier, then the squatters are committing a criminal offence under section 7 of the Criminal Law Act 1977 and can be arrested. What is more, such an occupier can use force to enter their home and reasonable force to remove the trespassers.

But in order to remove trespassers, one doesn’t have to prove that one is a displaced residential occupier, or protected intended occupier. One just has to show that you have right to the land and that the trespassers are occupying without permission or authorisation. This is indeed a civil claim and can take some time.

Mr Whitehead appears to be presenting a con-fused botch of the current law, which is both inaccurate and has serious omissions. He either made this complete farrago up himself, or was sold a pup by Ken Clarke’s ‘senior source’ and didn’t bother to do the most elementary fact checking.

But alarm bells should be starting to ring. Let’s have a look at what that ‘senior source’ is quoted as saying:

“Ken has had enough of seeing hard working home owners battle to squatters out.

He is determined to use the full force of the law to save people from the nightmare of having to fight to get their houses back.

The days of ‘squatters’ rights’ will be over.”

Hmm. I’ll come back to this. But can one hope for clarity, or at least accuracy from the other article, which purports to set out the changes?

Mr Hutchinson’s brief exposition of the current law, which he (quite plausibly) attributes to the Home Office is that:

• Squatting is a civil offence against the landlord/owner of the property, which to all intents and purposes means that it is an unlawful practice, but not illegal.
• You can be convicted of a criminal offence if you have caused damage to the property by gaining entry, covered under the Criminal Justice Act 1994.
• Use of electricity etc is also a crime as it is theft.
• The landlord/owners are well within their rights to evict squatters, but they must go to a civil court in order to gain a possession order.
• Squatters do have limited rights. A landlord cannot remove you by violent or forced means, only through the legal process.

So, no. Not accurate. The same muddle of omissions and inaccuracies, in fact. And what of Ken Clarke’s proposals?

The new law will make squatting a criminal offence rather than a civil offence and end the lengthy process of home owners having to fight legal battles in the civil courts in order to evict squatters.

It will allow police to force entry and arrest anyone who has occupied a property. Squatters could even face a prison sentence under the plans if prosecuted.

Home owners don’t have to go through a lengthy process of legal battles in the civil court, as long as they are a displaced residential occupier, or protected intended occupier, so that much is bilge as before.

But what is now clear is that this situation isn’t the target of the proposals. It is not about the squatting of people’s homes – that is already a criminal offence – it is about the squatting of other property, unoccupied or without an intended occupier. The proposal isn’t even about ‘squatting’ per se. The proposal is nothing less than to criminalise trespass.

The Telegraph, and Messers Whitehead and Hutchinson, have either made up this nonsense about people unable to recover possession of their own homes, or, as may be more likely, they have fallen for a bait and switch by the Home Office/MoJ, and been sold a juicy story about protecting homeowners, when the actual proposals are about something else entirely. Messers Whitehead and Hutchinson would appear to have swallowed it wholesale, without any checking whatsoever.

For this example of quality journalism, onto the naughty step they go.

[Edit update 20 March. Things get murkier. The Sunday Telegraph has a piece by Grant Shapps announcing the forthcoming change in the law and the release of booklets on property owners rights against squatters. I seem to recall these being announced quite some time ago, but assuming they contain the correct law (and Shapps does appear to have it more or less right), they would be a useful read for the Telegraph hacks. However, it turns out the the Sunday Telegraph has been running a campaign on tougher squatting laws, again banging on about homeowners, although their example is of a BTL landlord.

Now, criminalising trespass was Tory policy before the election. Mr Pickles, in particular, was very keen on it in relation to gypsy and traveller unauthorised parking up. It appears that the (Sunday) Telegraph going on about homeowners - and by the quotes, being encouraged to do so by the Home Office and MoJ - has given the Govt a convenient PR line on which to sell the proposal; that it is about protecting your home from nasty, freeloading artist types. It appears the Telegraph hacks have been what Lenin would have called 'useful idiots'. ]

As Lord Palmerstone might have said: “Only three people have ever really understood this eligibility business – the Prince Consort, who is dead – a German professor, who has gone mad – and I, who have forgotten all about it.” That, frankly, sums up my (and, I suspect, your*) view of eligibility and Part 7, Housing Act 1996.

Sadly, as all housing lawyers know, it’s impossible to understand homelessness law these days without also having a basic grasp of immigration law and, of course, the rights of EU nationals. Since 2004, there has been (in effect) a two-tier system for EU nationals, with nationals of the A8 states (Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia, Slovakia) and the A2 states (Romania and Bulgaria) having various restrictions imposed on them.

The restrictions on the A8 states are, broadly, a requirement to comply with the Worker Registration Scheme and, if they’re in the UK otherwise than in accordance with the scheme (subject, as always, to exceptions), then they’ve got no right to reside and, hence, are not eligible for assistance under Pt 7, Housing Act 1996.

The restrictions in the WRS were part of a temporary package of measures approved when the A8 joined the EU. That temporary package expires on May 1, 2011 and cannot be renewed. Accordingly, an SI has been made which will bring the WRS restrictions to an end (subject to transitional provisions): see the Accession (Immigration and Worker Registration) (Revocation, Saving and Consequential Provisions) Order 2011. The position is that, from May 1, 2011, A8 nationals are to be treated like other EU nationals.

*except Toby and Adrian

The Upper Tribunal (Lands Chamber) has, in Earl Cadogan v Cadogan Square Properties Ltd [2011] UKUT 68 (LC), had to grapple with two significant procedural questions involving the LVT and enfranchisement.

Cadogan Square Properties Ltd was the nominee purchaser (i.e. a company formed by leaseholders for the purpose of acquiring the freehold) of 23 Cadogan Square. The parties were unable to agree the purchase price and the matter was referred to the LVT, which determined the price at a little over £2 million. Both parties appealed. Between permission to appeal being granted and the substantive appeal coming on for hearing, the Court of Appeal gave judgment in McHale v Cadogan [2010] EWCA Civ 1471 (our note, here). The parties subsequently agreed that the issues on the appeal fell away, in light of that decision.

Two points, however, remained for consideration:

(a) the LVT decision contained a minor error, which resulted in the purchase price being slightly out (by about £10,000). The parties and their surveyors agreed that there was such an error. The question was whether the Upper Tribunal could correct it.

(b) the decision in McHale was awaiting a decision on permission to appeal to the Supreme Court; could the parties revisit the purchase price if the Supreme Court overturned the Court of Appeal decision?

The Upper Tribunal held:

(a) that it could correct the error, notwithstanding that the substantive appeal had fallen away, or that the LVT had not been asked to correct it. When hearing an appeal from the LVT, the UT had all the powers of that tribunal (s.175(4), 2002 Act) and those powers included (reg. 18, LVT procedure regulations) a power to correct errors;

(b) it was not possible to allow the parties to revisit a purchase price in the manner suggested; the task of the LVT (and, on appeal, the Upper Tribunal), was to determine a price to be paid. That was not compatible with setting a “provisional” price.

On (b), however, presumably there is nothing to stop the parties agreeing (or, even, one party applying to the LVT) for the case to be stayed pending some significant future event, e.g. a permission decision on a related point? This last point is mine, not the UTs, but it must be right.

Readers of my previous notes of the “consultation” exercises undertaken by the coalition government will readily appreciate that I am not the best person to write about a further symbolic consultation, being lead by DCLG, on what it terms “burdens” (indeed, such is the normalised use of this expression that the email address to respond to this consultation is pejoratively: burdens@communities.gsi.gov.uk) as part of the “direction of travel” to decentralisation (dontchajustlove those euphemisms). It transpires that “burdens” refers to every single statutory duty affecting local government, including those imposed by SI and guidance. So far, 1294 such duties have been identified by DCLG – I feel for the poor civil servant who put together that list. Consultees are asked (I think, it’s not exactly clear) to identify new duties and say whether they think that any of the identified duties are vital or should otherwise be retained (the web form, on which see below, asks for general observations as well). Pink Tape has done a brilliant, excoriating comment on the “burdens” identified regarding social care (which the government has, in any event, asked the Law Commission to consider).

So, let’s look at the housing “burdens” identified. Well, let’s not actually, because it’s an entirely mindless, pointless exercise. What are they going to do with the responses? Are they going to put together a regulatory reform order to (say) get rid of the homelessness, allocations, land compensation act or HHSRS duties. Some might regard that as unconstitutional, particularly after (um) respondents to the recent flurry of consultation papers around the housing parts of the Localism Bill were in favour of the retention of the reasonable preference categories and nobody is questioning the need for statutory duties in any of these; and, in any event, the Localism Bill is going to result in the creation of more, not less, “burdens” (which are, of course, not identified as it’s just a Bill). Feel free to have a laugh at that poor civil servant’s expense by looking at the identified list of housing duties (it’s the first document on the list to download at the bottom of the page – I’ll leave it to you to decide whether DCLG can be said to have got a handle on the complex s 193 duties currently in existence).

Then there’s the problem of how to respond. There’s a web response form (on the top right of the “burdens” page) that links to a surveymonkey site (which rather speaks for itself [although survey monkey is a good tool in its own right, so no disrespect to them]). Be prepared, though: if you want to comment on more than one duty, you need to have the code to hand from the identified list for each one. This sent some of the NL team off into discussing things on our email list, like “scripts”, which, frankly, are beyond me, despite Francis’ helpful, simple version for my benefit. I think the view was that a script might not work, but it was over my head anyway. Furthermore, if you want to comment on a specific duty and make general observations and identify a further duty not on the list, you have to fill out new forms which some may feel a little, um, burdensome. Perhaps a slow-track trainee designed the survey monkey response form.

But why help DCLG anyway? Surely they should know what housing duties are imposed on local authorities (and we might quibble a little on what we mean by “duty” but not here anyway). What does it say about them if they don’t? The explanations given in the laughable consultation paper is that no list has ever been created, some housing duties are cross-cutting (eg HB), and there are lots of statutes and SIs. What does it say about the processes and mentality of government that they should engage in this kind of consultation at a time when they say they are reducing waste?

If you do decide to contribute, bear in mind that DCLG itself says that this is a “long-term review programme”. The purpose of this consultation exercise, we find out (finally) is: “… by the end of this exercise we will have a more comprehensive picture of what the ‘asks’ of local authorities are and thus develop a more informed view of those areas where these duties may no longer be required”. Give me strength.

…that if a disrepair claim reaches trial these days, then one of three options must be true:
a) there is a genuine and substantive issue of causation or liability (rare as hens teeth);
b) one or perhaps both of the parties are mad;
c) a combination of the above.

White v Quadrant Brownswood Tenants Co-op [2011] EWCA Civ 239 [not on Bailii yet, but we've seen a transcript] was a permission to appeal hearing on the Defendant’s renewed application for permission. Once I’ve gone through the details, I’ll leave you to draw your own conclusions as to which of the options, if any, applies here.

Mr White was the tenant of Quadrant Co-op (apparently the same Mr White involved in the possession claim by Quadrant that has an ongoing appeal in the High Court). Mr W had brought a disrepair claim. He was the tenant since 2001 of a split level ground floor and basement flat. He alleged damp to the flat between 2001 and 2007, with the main head of damages being damage caused by damp in a wardrobe which was attached to a wall on the right hand side of the basement bay window. Quadrant denied liability, saying that any damp was due to condensation due to tenant’s usage and/or a leak from the tenant’s washing machine.

Although there had been inspections and works during the period, including installation of new damp proof courses, Quadrant argued this did not show disrepair. The Landlord was not liable for the lack of a damp proof course, or for the subsequent installation of one (unless installed defectively, of course).

Litigation was conducted ‘enthusiastically’ (in Jackson LJ’s words) by both parties. A single joint expert, Mr Parrett, was appointed and inspected, albeit after the problems had apparently been resolved. Both parties put questions to the expert.

The matter went to trial at Central London County Court before HHJ Bailey.

The judge concluded that the defendant had liability in respect of two areas of dampness, which the judge did not regard as being unduly serious. He awarded £25.00 in respect of each of those matters, making a total sum of £50 general damages. The judge came to the conclusion that the claimant was not entitled to recover under section 4 of the Defective Premises Act 1972 compensation for damage to his clothing. The clothing in question had hung in the wardrobe.

The judge’s finding on costs is not recorded in this permission decision, although it is one topic of the full appeal. I understand that the order was that the Claimant pay £50 of the Defendant’s costs. If this is not correct, could someone involved let me know and I’ll put this right. (This looks like what might be described as a plague on both your houses judgment).

Both parties, enthusiasm undiminished (as per Jackson LJ), appealed. Mr W was granted permission to appeal on the ground that:

the dampness found by the judge in one of the areas, namely on the wall where the wardrobe was, had caused damage to his clothing and he was entitled to substantial damages in respect of that by virtue of the defendant’s breach of section 4 of the Defective Premises Act 1972.

Rimer LJ found that this was arguable.

Quadrant appealed against the costs order, which was granted permission on the papers, and against the Judge’s findings in respect of the two areas of dampness. This was refused and one area of damp was the subject of this renewed permission hearing. Quadrant argued

that the judge erred in finding that the defendant was liable for the dampness in the wall by the wardrobe. The judge held the defendant liable for that dampness because he concluded that a rainwater downpipe on the outside of that wall had been defective and dampness had come through from that source. Mr Carr, who appears today for the defendant, submits that the judge was not entitled to come to this conclusion on the evidence before him.

Quadrant pointed to evidence by a person who had fitted the wardrobe in 2005 and saw no damp. The mold on clothes was discovered in November 2006. There was no evidence before the Judge that the down pipe had been defective during this period.

Jackson LJ disagreed. He pointed to a part of the expert’s response to the second set of questions by the parties, where Mr Parrett said:

It should also be noted that there is a new section of plaster to the left hand front elevation wall which is almost full height of the wall. The area of new plaster corresponds to the location of the rainwater pipe externally. In the normal course of rising damp it would not be expected that dampness would reach the height of the new plaster to the left hand front wall which is approximately 2 metres above finished floor level internally. Therefore if the plaster had been replaced to this height because it was damp then that would suggest that the source of dampness must have originated from higher up the wall ie from the rainwater pipe.

The Judge was entitled to rely on this evidence and to find that the rainwater pipe was the cause of damp in this area. There was no realistic prospect that the Court of Appeal would reverse this finding.

Permission on this ground refused.

We await the full appeal hearing, apparently listed for April this year (unless we’ve got it confused with the possession appeal in the High Court again). I must also admit to being confused as to why this is in the Court of Appeal, rather than the High Court. Any info gratefully received.

Carmarthenshire CC v Lewis [2010] EWCA Civ 1567

Another tug of the forelock to ‘Recent developments in housing law’ in Legal Action for this one, apparently unreported elsewhere. [Update 14/03/11 - we've had a message from Carmarthenshire on this case, see below.] [update 22/03/2011 Now on bailii, link added.]

This was a permission to appeal hearing and the full appeal is forthcoming. It bears on the considerable difficulties arising from questions of whether a party has capacity under CPR 21. As most practitioners will no doubt have experienced, this is never an easy situation, with tricky questions of judgement involved. However, the rule is that no further steps after issue may be taken against a protected party without the appointment of a litigation friend.

Mr Lewis was Carmarthenshire’s secure tenant. He had been diagnosed with Asperger’s Syndrome in 2005. Carmarthenshire brought possession proceedings. At an interlocutory hearing, DJ Thomas became concerned about Mr Lewis’ capacity to conduct proceedings (presumably he was in person).

The DJ ordered Mr Lewis to allow an examination by a named specialist by a specified date, failing which he would be debarred from defending the claim. Mr Lewis did not comply with the order or attend the subsequent trial, at which a possession order was made. The DJ at that hearing did not consider whether Mr Lewis was a protected person under CPR 21.

On renewed application for permission to appeal by Mr Lewis, Rimer LJ granted permission. He observed that:

… the problem raised by this case is as to how, once the court is possessed of information raising a question as to the capacity of a litigant to conduct the litigation, it should satisfy itself as to whether the litigant does indeed have sufficient capacity. I cannot think that the court can ordinarily, by its own impression of the litigant, safely form its own view on that. Nor am I impressed that the solution is the making of an ‘unless’ order of the type that Judge Thomas made. The concern that I have about this case is that an order may have been made against a party who was in fact a ‘protected party’ without a litigation friend having been appointed for him. The potential importance of the case is as to the procedure that, in cases such as this, the court ought to follow with a view to ascertaining the capacity of the litigant.

Expedited appeal ordered.

[14/03/11 - Solicitors for Carmarthenshire have contacted us about this report. We are informed that both the purpose of the unless order at the interlocutory hearing at first instance and whether Mr Lewis' capacity was indeed an ongoing issue are actively disputed by Carmarthenshire. As it appears that these will be live issues on the appeal, we will not be commenting further.]

Comment
I think Rimer LJ makes a thoughtful and important point here. It is, of course, potentially extremely difficult for a court to take steps to try to resolve the issue of capacity, not least because if capacity is lacking, no further steps in litigation should be taken without a litigation friend. Without pre-judging the full appeal, it has to be very doubtful that an unless order could really be the appropriate way to proceed, not least because a failure to comply with such an order could hardly be taken as an indicator of capacity.

I hope that the Court of Appeal take up Rimer LJ’s suggestion and do address the difficult question of the appropriate procedure for the court to adopt in such circumstances.

The usual hat tip to ‘recent developments in housing law’ in Legal Action for this one, and also Mick O’Sullivan at Avon and Bristol Law Centre.

Boyle v Musso, Bristol County Court 25/10/2010

Mr Boyle was an assured shorthold tenant. There had been a dispute with the landlord, Mr Musso about Mr B withholding rent due to flooding in the property. Soon afterwards, in October 2008, Mr M came to the property with another man. Mr B was punched to the ground by Mr M and both men then stamped on him.

Mr M was convicted at Bristol Magistrates of assault occasioning actual bodily harm, with a 24 week suspended sentence, in June 2009. Mr B brought a civil claim.

Mr M initially disputed the claim but failed to file a defence. Default judgment was entered.

At the assessment of quantum hearing, DJ Watson noted that Mr B’s physical injuries had healed fairly quickly, but that he suffered from depression and panic attacks subsequently. Mr B was found to have been left with serious and debilitating anxiety as a result of the assault.

Damages assessed as:

For trespass to the person – £15,000, including aggravated damages due to injury to feelings.
Exemplary damages – £2,000 on a finding that part of the reason for the eviction was the dispute over withholding rent. The DJ found that Mr B was entirely justified in withholding rent.
Breach of covenant of quiet enjoyment – £4,000 assessed on the basis of 22 days spent sofa surfing or in unsuitable B&B/hostel accommodation.
Special damages (loss of belongings) – £750
Return of unprotected deposit – £485, and 3 x deposit (£1,455) penalty for failure to comply with the Housing Act 2004 requirements.

Comment
Although clearly a good result for the tenant, some parts of this judgment are, I would humbly suggest, surely wrong.

If the DJ did find that withholding rent was justified, this would have no particular basis in law, and would in any event be wholly unnecessary for the result that the DJ reached. Even if Mr B was unjustified in withholding rent, it should make no difference to a finding on unlawful eviction. It may be that Mr B also had a claim in disrepair, though.

Further, what the hell have exemplary damages got to do with the flood and whether Mr B was entitled to withhold rent or not?

Yes, it is my hobby horse, but exemplary damages are based on a deliberate attempt to avoid legal responsibility/duty; and the measure of damages is the properly the profit achieved (or intended to be achieved – it doesn’t have to be realised) in doing so.

I can’t tell on the report of the case whether a higher award might have resulted if the DJ had taken this approach, or indeed whether it was put to the Court, but in general the best shot of getting decent exemplary damages is if the basis for assessment is clear. Will people please stop treating exemplaries as aggravated damages? Thank you.

And why no damages under s.27 and s.28 Housing Act 1988 (as in, for example, Strydom v Fowler)? It doesn’t look like Mr B had re-entered the property, although I can’t be sure from the report.

Hemans & Anor v Windsor and Maidenhead Royal Borough Council (2011) CA Civ Div 2 March 2011 [Lawtel note of extempore judgment. Not on Bailii yet]

This was an appeal by Windsor of the first appeal of a Housing Act 1996 s.202 review decision  that it was reasonable for the wife to continue to occupy a private sector property, so that she was not homeless. At issue were:

i) whether a private sector tenancy that had been arranged for a wife by another local authority, following an incident of domestic violence, could be said to be available to the husband, following their reconciliation.

ii) whether the review officer was entitled to find that the circumstances in which the wife came to occupy that property were irrelevant.

The husband and wife, with their daughter, originally lived in army accommodation on Windsor’s area. The husband was a soldier and the wife worked locally. Following the husband’s return from a tour in Afghanistan, he experienced a breakdown. He was discharged from the army and they were given notice to quit the army accommodation. Following incidences of domestic violence, the wife and daughter were considered to be at risk and placed  in a refuge by the social services department of another local authority. The second local authority then accommodated the wife and daughter in a two bedroom house under an AST. The wife was granted a one year break by her employer. The husband underwent treatment and he and the wife wished to reconcile and for him to live with her. They applied as homeless to Windsor.

Windsor decided the wife was not homeless, that it was not unreasonable for the husband to share that accommodation, and that the circumstances concerning the wife’s departure were irrelevant in considering the suitability of her current accommodation. This was upheld on review.

On first s.204 appeal, the Judge found that the accommodation was not available to the husband, for the purposes of of s.175(1)(a), s.175(1)(b) or s.175(1)(c),  so that he was homeless. On the other hand, the Judge rejected the argument that the wife was homeless because it was unreasonable to expect her to occupy the two-bedroom house when that accommodation had always been intended to be temporary, that she had been placed there by social services for child protection reasons, and she would be unable to care properly for their daughter if she returned to her job some distance away.

On appeal by Windsor (and cross appeal by the applicants), the Court of Appeal held that it was clear that the husband and wife wished to re-unite, by making a joint homeless application. The wife had therefore implicitly consented to the husband living with her, which amounted to a licence for the husband to occupy the two bed private accommodation. There was no statement from the wife to the effect that she wished to be reconciled subject to the condition that the husband never stay at the property. The Court below had therefore erred in finding that the husband was homeless.

However, while noting that in determining the lawfulness of a review decision, the approach should be a ‘fair’ one, not technical (Holmes-Moorhouse v Richmond upon Thames LBC (2009) UKHL 7), in the present case, the review officer had misdirected himself in considering the circumstances in which the wife had come to occupy the two bed property as being irrelevant. That went to the heart of the decision as to whether it was reasonable for the wife to live in that property. The Judge below was in error to accept that the circumstances were irrelevant. The review decision was therefore fundamentally flawed and was quashed.

Katana & Anor v Catalyst Communities Housing [2010] EWCA Civ 630

A slight oddity of a case, an application for permission to appeal, not strictly a housing matter, despite the Respondent. But it is of interest in the way it deals with tenancies at will

CCH were the freehold owners of business premises since 2004. It was an old filling station that they intended to redevelop it for residential use. While planning permission etc. was underway, they granted a business tenancy to a Mr Roberts:

he was granted a tenancy of the property for a fixed term of three months from the date of the agreement. The tenancy was not excluded from the provisions of Part II of the Landlord and Tenant Act 1954 (“the 1954 Act”), presumably because the landlords had in mind that a tenancy for a term of less than six months certain is an excluded tenancy under s.43 of the 1954 Act.

There was a further term that provided that “if the tenant were to hold over at the end of the term this tenancy would be terminable by the giving of not less than one week’s notice by either party, regardless of the way in which the rent payable in respect of their occupation was either calculated or paid”.

Mr Roberts continued in occupation after the 3 month term, and paid rent until a point in 2006. It turned out, however, that Mr R had purportedly granted leases of 2 parts of the property to Mr Katana and Mr Abraham, probably in 2005, for terms of 10 years and 8 years respectively and they were in occupation, paying rent (of £13k to £18k per annum) to Mr R who had otherwise vanished from the scene.

In 2008, the Claimant served notices under s.25 by leaving them at a kiosk in Mr Katana’s part of the site. The following possession proceedings were the subject of this application for permission to appeal. Mr Roberts sustained his absence at first instance trial (and subsequently). Mr K and Mr A defended on the basis that:

1. Mr R was in fact a tenant, not a tenant at will, as the relevant clause converted the tenancy into a contractual periodic tenancy, either weekly or monthly. Or Mr R’s continued occupation and payment of rent after the 3 month term gave rise to a implied periodic tenancy.
2. The s.25 notices had not been served correctly.

If 1. was right, then Mr a and Mr K themselves arguably had periodic tenancies, and these would fall under the protection of Part II of the Landlord and Tenant Act 1954, despite those tenancies being granted in breach of covenant of Mr R’s tenancy. (D’Silva v Lister House Development [1971] 1 Ch 17).

At first instance, the Judge found that there was no implied tenancy, following Javad v Aqil [1991] 1 WLR 1007, the position was that at the expiry of a fixed term, a tenancy at will arose unless there was further contractual provision by the parties. The clause in the tenancy agreement did not make continued occupation anything other than a tenancy at will. The landlord wished to develop the property, it was not in its interests to create a tenancy to which Part II L&T Act 1954 would apply. The clause made clear in its first sentence that the parties were confirming that the 3 month tenancy would end in 2005. The provisions were not inconsistent with the continuation as a tenancy at will.

The Judge found that the s.25 notices were properly served. Possession order made

Mr A and Mr K appealed on both issues.

On appeal, Patten LJ held that on the tenancy at will issue, there was nothing before the judge that would indicate that the parties had intended anything but a tenancy at will. The key point was the dealing between the parties up to but not later than the expiry of the three month tenancy. While contra proferentem had been raised in relation to the interpretation of the clause in the tenancy, this was a matter of last resort and was not a necessary aid to construction in this case. The clause was clear on both ‘holding over’ at the end of the term, should there be any, and that this would be on one week’s notice. So the protection of the 1954 Act did not apply.

On the service of the s.25 notices, while the kiosk was clearly part of the premises occupied by Mr K. There was an office, but the Act did not draw a distinction between parts of the premises. However, Mr A’s premises were separate. That service could only succeed if the Judge had sufficient evidence to find that Mr A had in fact received the notice. While there was evidence that Mr A and Mr K had discussed the notices and Mr A knew what was going on, Patten LJ was not satisfied that the first instance Judge had made a finding that Mr had received the notice.

However, in view of the finding that Mr R had a tenancy at will, and that therefore so did Mr A and Mr K, nothing turned on this possible failure of service.

Mr A and Mr K also put forward an argument in proprietary estoppel. In the Court below, this had been put in terms that the Claimant had acquiesced in their occupation such that they had a right in equity to new tenancies. This got short shrift. Silence could not found an estoppel.

On appeal the estoppel argument was put more broadly, that standing by while another acted to their detriment and knowing that that other believed themselves to be entitled to an interest in land gave rise to an estoppel, Crabb v Arun DC [1976] Ch 179. However, while the Claimants were aware of the occupation by Mr A and Mr K since 2005, there was no evidence that the Claimant was aware of the terms on which the Defendants believed themselves to be in occupation, so could not be siad to have affirmed their right to be there as tenants, let alone as tenants of 8 and 10 year terms. Mr R had placed the Defendants in this position, but this did not set up an equity against the landlord, unless the landlord knew of the details of their presumed tenancies and acquiesced in that knowledge.

No grounds of appeal had a realistic prospect of success. Application dismissed.

Now it may be just that I am thinking as a residential L&T Person, but something about that ‘week notice in the clause niggles with me. Tenancy at will with a contractual notice prior? Hmm.

Forgive the slight delay, but DCLG published their summary of responses to their Consultation on Local Decisions: A Fairer Future for Social Housing (which we discussed here) on 28 Feb.  The outcome of the consultation appears to be, um, full steam ahead on the Localism Bill.  I have to say that any reader of Inside Housing would be surprised by the results.  I seem to have got regular updates from IH that social landlords (of whatever political hue) weren’t going to touch the new flexible/affordable tenancy regime with a bargepole.  Well, I was wrong.  Surprisingly significant proportions of respondents wanted the new flexibilities: two-thirds said they “expected to take advantage” of the flexible tenancy regime with a fifth undecided (para 3.2); 78 per cent of respondents would use the new “flexibility” about discharging Part 7 duties through the private rented sector (para 6.3); less surprisingly, perhaps, two-thirds of LAs welcomed the proposed allocations flexibility or indicated that they would consider setting restrictive qualification criteria including local connection (para 4.3).  Forgive the extreme use of the “F” word here, but it is used 50 times in the document.

If you get bored by stats, there are some choice bits.  For example, the government has clearly been stung by the criticism of its HB changes.  In response to concerns about the impact of these changes on the “new flexibilities” around homelessness discharge, DCLG says:

6.6 In fact, in the vast majority of areas, people will see a reduction of £15 per week or less in the Local Housing Allowance. We expect that some people will be able to make up the shortfall themselves and other tenants will be able to renegotiate rents with their landlords.
6.7 In some of the more expensive areas in the country there may be less affordable property available so some tenants may need to move to find cheaper accommodation. Even so, nearly a third of properties will still be affordable to Housing Benefit customers in London. Government is making £190m of additional funding available to help local authorities to provide support where it is needed.

Whether you buy into that or not, the empirical evidence to follow of the evaluation of these changes will prove interesting (DWP were trying to get an evaluation commissioned within a timescale so tight that some people didn’t bother putting in).

There’s also criticism of some respondents failing to appreciate that separating transfer applicants from newbies won’t be a requirement, just an option.

But the really crucial bits of this document are in Section 8.  Here, DCLG begins to outline its thinking on what the tenancy and mobility standards might look like (and, on which they are going to consult again): paras 8.10-12 and 8.24 are required reading. I don’t repeat them here as they are long but scroll down to page 48-9 and 51-2.  The latter is a little dull – internet-based mobility search engines but note the final bullet on p 52, which follows some of the responses that many tenants just don’t have internet access.

There’s more choice bits in Section 8:

• the length of the flexible tenancy: despite “a large majority” of respondents believing that two years isn’t long enough (para 3.24), the two year period remains “though we would expect … the vast majority of tenancies to be provided on longer terms, particularly for vulnerable households or those with children” (para 8.6);
• the length of the flexible tenancy  (again): despite “a majority of respondents” believing that there should be a longer minimum term for some groups (eg those fleeing domestic violence or with children in full time education) (paras 3.29-30), this hasn’t found its way into the proposals (or at least I couldn’t find it, presumably because of the prospect of legal challenge);
• allocations: apparently, the additional flexibility achieved by taking transfers out of the equation (if so desired) will lead to “less risk of challenge from those on the waiting list in housing need” (para 8.16);
• allocations (again): this is really for the afficionado, who’s aware of priority schemes for “good tenants” (like operates in Irwell Valley), but the government appears to back allocations schemes which “rewards tenants with a good track record” (para 8.17), which might make for an interesting series of challenges.

My sense is that, perhaps counterintuitively given the “local” nature that there will be plenty of opportunities for lawyers to muscle in on the local love-in – consultation on changes; increased use of internal reviews/appeals/complaints (see bullet points 4 and 6 in para 8.11); definition of “vulnerable households” (see bullet point 7 in para 8.11); issues over tenancy renewals, etc.  There are lots of unfortunate traps here and, one notable absence from this summary (which was presumably raised by at least the lawyer respondents, who don’t get mentioned [!]): Pinnock.

Ricky Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136

Another brief note to mention this case which, despite not being housing-related in any way, is important in any matter where an expert is to be instructed.

The facts are not especially relevant but, in short, Mr Edwards-Tubb was injured at work. He served a pre-action letter on W and the parties then disagreed as to the appointment of an expert to assess his injuries. He then appointed an expert of his own with W’s insurers statingn that they would pay the expert’s fees if they lost the case. Proceedings were later issued with W having admitted liability and so the only issues were the extent of the injuries and the appropriate measure of damages. On the issue of proceedings it became apparent that Mr E-T had obtained a further expert’s report on which he now sought to rely. W sought disclosure of the previous report, admittedly not by right, but on the basis that the disclosure should be a precondition of the Court giving permission for the new report to be admitted under CPR 35.4.

The Court held that where an expert has been chaged once the provisons of a protocol have been embarked on then the same position as regards disclosure should be taken as after proceedings have been issued. Once parties have embarked on a protocol experts are instructed on a cooperative basis, even if instructed singly, and their duty is to the Court as oppose to those instructing them. On that basis, while the Court should tend toward permitting a party to change expert and not force them to rely on an expert in whom they have lost confidence, they should also not deprive the other party of the ability to rely on that same expert.

So, it is possible to switch horses during the race but the norm will be that a full disclosure must be made of the reasons for that switch and this will usually include disclosure of the report.

*An effort to continue the recent film theme with references to films starring Sean Connery

A brief note to highlight some unexpected amendments that have been tabled to the Localism Bill. The latest marshalled list includes new sections which are designed to make amendments to the Housing Act 2004 and specifically to the tenancy deposit protection provisions.

The changes dispose of the unclear concept of ‘initial requirements’ and remove the late protection loophole revealed by cases such as Draycott v Hannells and Tiensia v Univeresal Estates. They also remove the loophole utilised by some landlords of returning the deposit to the tenant and then asserting that s214(4) only requires that they pay the three times penalty if they have also been ordered to pay the deposit back. This will mean that tenants will find it far easier to pursue landlords or agents who have failed to protect their deposits and landlords will not be able to rush deposits into schemes after the 14 day period and thereby avoid penalties. The changes also clear up other areas of uncertainty, such as the status of multiple tenants, which have not yet come before the higher Courts.

From the landlords point of view the changes are an improvement because they do away with the fixed penalty of three times the deposit for failure to protect and, instead, create a variable penalty ranging from the value of the deposit up to three times the value of the deposit. In other words the tenant will get their deposit back or have it paid into the custodial scheme and will also receive a further sum of money equivalent to not less than the deposit and not more than three times the deposit. In considering the exact amount to award the Court will consider why the landlord did not protect the deposit, what the landlord knew or should have known about his obligations, and how quickly he resolved the situation. This will mean that ignorant landlords will still be penalised but they should be able to bring the size of the penalty down to a more manageable level.

It is by no means certain that the amendments will survive into the final version of the legislation but, given that CLG is rumoured to be consulting with its own lawyers on how best to deal with the problems thrown up by the various court cases, it is likely that the amendments will receive government backing in which case they will probably become law.

Westminster Council have long had a problem with homelessness. I’m sure you will recall the Westminster Council’s housing leader’s letters to Grant Shapps of last year, imploring him to let them discharge duty by offering an out of borough private tenancy. Then there was Westminster’s prediction that homelessness from private accommodation would double as a result of the coalition’s housing benefit proposals.

Now Westminster have come up with a rather different solution to the problem of street homelessness and rough sleeping. Under a proposal now out for consultation, Westminster intend to ban it. Draft bye laws ban ‘lying down’, ‘sleeping’ and ‘depositing bedding’ in an area of Westminster around Victoria, down to Vauxhall Bridge Road and over to Buckingham Place and Birdcage Walk. And, for good measure, ‘distributing free food’ would also be banned, a move aimed directly at soup runs. On summary conviction, the rough sleeper or soup kitchen volunteer would be fined.

Pubs would still be able to give away nuts outside, apparently, which is nice.

Westminster generously observe that this would not prevent people from sleeping rough ‘elsewhere in London’, even ‘elsewhere in Westminster’ (although probably not for long?).

We await Grant Shapps reaction with interest. While I may well have considerable doubts about large swathes of Mr Shapps policies, it has to be said that he has long held a principled view that street homelessness was under recorded, and was not being approached adequately. In office, he has taken steps on changing and improving the recording of street homelessness. For that he should be applauded. Now, does Westminster’s contemptible, mean minded, short sighted, and pointless act of street cleansing appeal to the minister?

One also wonders, should the proposed byelaw go through, exactly how long it would be till it faced a challenge in the Admin Court.

* For those whose history of 18th century Russia is a little rusty, see here. There are mutters that the forthcoming formal broadening of the Royal gene pool may have something to do with Westminster’s proposed social OCD. No cardboard or sleeping bags to sully the royalist tourists’ views of London. That seems a little petty for such a vindictive little bit of local legislation.

We noted Craftrule Ltd v 41-60 Albert Palace Mansions (Freehold) Ltd when it was in the High Court (see our note, here). I won’t repeat our earlier note – it’s basically about what it means to be a “self-contained part of a building” under s.3, Leasehold Reform, Housing and Urban Development Act 1993 (collective enfranchisement; though it’s also relevant for those doing Right to Manage work under s.72, Commonhold and Leasehold Reform Act 2002). The Court of Appeal has now upheld the decision of the High Ct ([2011] EWCA Civ 185). There is no requirement that the smallest possible “part of a building” be enfranchised, so, on the facts of the case, a building of 20 flats was still a self-contained part of a building, notwithstanding that it was also possible to constitute it as two self-contained parts of 10.

Hounslow v Powell; Leeds v Hall; Birmingham v Frisby [2011] UKSC 8

[This is probably a work in progress. There may be further additions and comments as people get a chance/have a brainwave. We've also ended up writing this as something of a tag team. Chief did most of it and starts us off.]

Sometime ago Dave opened the door to Tarantino references in relation to the vexed issue of Art.8 of the ECHR and possession proceedings. In his post on Zehentner v Austria he pointed out that, just as American hitmen consider that European fast food chains do certain things rather differently, so the appellate courts in England and Wales had viewed the approach of the European Court of Human Rights with bemusement. The latest decision of the Supreme Court on this subject is an unmissable opportunity to consider another famous moment from Pulp Fiction.*

Furthermore, you have written in in your droves [cough splutter - NL] praising our innovative and revolutionary roundtable writing approach to these cases (as seen with Kay v UK and again with Manchester v Pinnock) so we have rolled it out again. Buckle up, it’s going to be a bumpy ride.

Back in Doherty v Birmingham [2008] UKHL 57; [2009] 1 AC 367 Lord Hope said at [20] that:

“I am not convinced that the Strasbourg Court—which did not hear oral argument in McCann —has fully appreciated the very real problems that are likely to be caused if we were to depart from the majority view in Kay in favour of that of the minority. The proposition that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which the Strasbourg Court adopted in [54] of its judgment appears to set a high standard, one that will be hard to achieve. But it suffers from a fundamental defect which renders it almost useless in the domestic context. It lacks any firm objective criterion by which a judgment can be made as to which cases will achieve this standard and which will not. Unless parameters or guidelines are set down, the judgment in each case will be a subjective one. Every solicitor who is asked to advise an occupier will have to consider whether it is arguable that the decision to seek his eviction was not proportionate. If he decides to raise this argument the court will have to examine the issue. The whole point of the reasoning of the majority was to reduce the risks to the operation of the domestic system by laying down objective standards on which the courts can rely. I do not think that the decision in McCann has answered this problem. Until the Strasbourg Court has developed principles on which we can rely on for general application the only safe course is to take the decision in each case as it arises.”

Although the ECtHR has in a number of cases repeated its insistence that anyone at risk of losing their home should be able to have the proportionality of that measure determined by an independent tribunal, and it may be that from the facts of those cases it is possible to start drawing together some pointers towards objective criterion, it does not appear (to me at least) that principles for general application have yet been established by the ECtHR.

While the Supreme Court accepted in Manchester v Pinnock [2010] UKSC 45; [2011] HLR 7 that the time had come to welcome proportionality into possession proceedings with open arms and a nice piece of pie, Lord Neuberger MR noted that:

“57. The implications of article 8 being potentially in play are much more significant where a local authority is seeking possession of a person’s home in circumstances in which domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession. In such a case the court’s obligation under article 8(2), to consider the proportionality of making the order sought, does represent a potential new obstacle to the making of an order for possession. The wide implications of this obligation will have to be worked out. As in many situations, that is best left to the good sense and experience of judges sitting in the County Court.

“59. The conjoined appeals in Salford City Council v Mullen [2010] EWCA Civ 336, which are due to be heard by this Court later this month, involve possession orders made in different and more common circumstances … Those appeals may therefore provide a more appropriate vehicle for the giving of general guidance. … In the light of our decision in the present appeal the lawyers preparing for those appeals will have the opportunity to give particular attention to these aspects of the matter.”

The reference to Salford v Mullen is a reference to the cases considered in the current judgment of the Supreme Court. Last week in anticipation of the Supreme Court’s decision we expressed the hope that these cases would allow us to look inside proportionality.

Therefore, by the time we come to the judgment in Hounslow v Powell, we have reached the point where the Supreme Court has (to borrow from Vincent in Pulp Fiction)** “gotta have an opinion“*** on general guidance and principles for general application.

No Security

While Pinnock concerned one, rather rare, situation where the occupier does not have security of tenure, these appeals concerned two far more common situations. The first is tenants under introductory tenancies (Housing Act 1996, Pt.5). In the course of our introduction to the Supreme Court’s decision in Pinnock, the introductory tenancy scheme was explained as a way of understanding the demoted tenancy regime. To spare you, dear reader, from having to click into another window and to spare my poor typing fingers, I will lazily copy-and-paste:

ITs were brought in by the Housing Act 1996, as a means of tackling anti-social behaviour. They operated as a form of probationary tenancy – indeed the 1995 consultation paper produced by the DoE was entitled ‘Anti-social Behaviour in Council Estates: A consultation paper on probationary tenancies’. Part 5 of the HA 1996 was designed to “enable authorities to deal more effectively with any tendency on the part of new tenants to engage in anti-social behaviour which emerged during the first 12 months of the tenancy … the nub of the scheme is that (provided the authority followed the correct procedures as laid down in the Housing Act 1996 for terminating an introductory tenancy), under section 127(2) of the Housing Act 1996, the county court is obliged to make a possession order.” (Waller LJ at [11]-[12] in R (McLellan) v Bracknell Forest BC [2002] QB 1129). If the procedure (including an internal review) has been carried out an authority’s decision can only be challenged by way of judicial review, see Manchester CC v Cochrane [1999] 1 WLR 809. Cochrane predated the coming into force of the Human Rights Act 1998, but in McLellan the CA held that the IT scheme was compatible with art.6 of the Convention.

Clearly, the decision in Pinnock meant that things had moved on since Cochrane and McLellan.

The second situation, and again one that is statistically far more significant than demoted tenancies, is where local housing authorities grant tenancies pursuant to their duties to the homeless (Housing Act 1996, Pt.7), which are excluded  from security by Sch.1 of the Housing Act 1985.****

Facts

From our note on the Court of Appeal decision in these cases you will remember that there were originally five cases joined together. One of them fell by the wayside (Manchester v Mushin), while another has been granted PTA to the Supreme Court, but has been stayed pending the outcome of these cases (Salford v Mullen – the lead case in the Court of Appeal, somewhat bizarrely as Salford weren’t even represented there).

The three cases that were before the Supreme Court were therefore Hounslow v Powell (a homelessness case where rent arrears had accrued, but full HB was now in payment); Leeds v Hall (an introductory tenancy case where Mr Hall had been accused of noise nuisance, threatening and intimidating behaviour and being verbally abusive towards his neighbours); and Birmingham v Frisby (another IT case, this time where Mr Frisby had been accused of noise nuisance and abatement action had been taken under Environmental Protection Act 1990).

Issues

The leading judgment was given by Lord Hope. This might provide a clue to seasoned observers about whether a wide or a restrictive approach would be taken to Pinnock. Lord Hope identified four issues:

1. What is the form and content of the proportionality review that Art.8 requires?
2. What procedural protections are implicit in Art.8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced?
3. Can the court defer the delivery of possession for a period in excess of the maximum permitted by s.89 of the 1980 Act if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility?
4. Can s.127(2) of the 1996 Act be read compatibly with the introductory tenant’s Art.8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Manchester v Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right?

Preliminary – applicability of Art.8

The fact that Lord Hope identified these as the issues will have already told you the answer to what I would describe as the first, almost preliminary, issue – namely whether Pinnock meant that proportionality applied in these two classes of occupation. If Pinnock and proportionality did apply then the Supreme Court would need to grapple with the detail of how proportionality should operate, procedurally and substantively (issues 1-4 above).

In the wake of Pinnock it is almost unthinkable that the Supreme Court could say that the proportionality requirement did not apply (as opposed to that it could not in the county courts due to the statute, on which more below). And so it proved: “In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8″ [33].

I (Chief) think that the Supreme Court must be broadly right on this point, if they were right in Pinnock (by which I mean, reading between the lines in Pinnock, right that “in principle” in the ECtHR’s formulation does not beget exceptions based on class of occupancy or the social policy that has led to differences in class and type, but only on the requirement for the occupier to raise a proportionality issue). It might be doubted whether this is right in relation to Pt.7 accommodation that is provided for a really short period of time – see O’Rourke v UK where the applicant had been placed in a hotel room for less than a fortnight before being turfed out and the ECtHR had “significant doubts over whether or not the applicant’s links with the hotel room were sufficient and continuous enough to make it his ‘home’ at the time of his eviction” – but in reality the “home” test under Art.8 is a relatively easy one to pass.

Substance of proportionality

Lord Hope reiterated at [34] that an Art.8 point only needs to be considered if it is raised by the occupier. If it is raised it should initially be considered summarily. If the court is satisfied that even if the facts relied upon were made out the point would still not succeed then the Art.8 defence can dismissed summarily (I pause here to query how many county court judges are really going to be ready to dismiss these defences summarily except in those cases where the defence only amounts to “I don’t want to”. Anything else is surely likely to get a further hearing from many/most DJs. It is at the stage of a possible final order further down the line that the vast majority of occupiers are going to be severely disappointed). Therefore, it followed that in the great majority of cases the local authority (presumably, as with Pinnock, this is being used fairly interchangeably with “public authority”) need not plead its precise reasons for possession, but may plead a more detailed case in reply to an Art.8 defence.

Jan Luba QC (Counsel for the 3 appellants, and a man who should be praised for his tenacious pursuit of this cause in the face of a number of knock-backs from the House of Lords******) is recorded at [35] as accepting that the threshold for raising an arguable proportionality case was a high one, and would only succeed in a small proportion of cases (cf. my query above).

After acknowledging the practical considerations for the judge in the county court (as Norris J noted in the recent case of Leeds & Yorkshire HA v Vertigan [2010] EWCA Civ 1583, the “pressures of a county court possession list are not to be underestimated”), the next part of Lord Hope’s [35] is probably likely to become as quoted by local authorities as Lord Bingham’s “pedantic exegesis” in R v Croydon ex p Graham or Lord Neuberger in Holmes-Moorhouse:

“Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order.”

[NL taking up the baton after Chief's epic work] The practical upshot of that view, we’ll come back to below. But the immediate consequence is clear in para 36 of Lord Hope’s judgment. The proportionality of making a possession order will be supported by the fact that making the order will (a) “serve to vindicate the authority’s ownership rights and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock”. While in Kryvitska and Kryvitskyy v Ukraine (application 30856/03, December 2010) the ECtHR indicated that the exercise of ownership rights by itself will not suffice where the owner is the state, the twin aims satisfy the legitimate aim requirement.

It follows that there is no need, at least in the overwhelming majority of cases, for the local authority to explain  and justify its reasons for seeking a possession order. It will be enough that the statutory pre-requisites have been satisfied and that “it is to be assumed” [my emphasis] that the authority is acting in accordance with its duties in allocation and management of housing stock.

The court therefore only needs to be concerned with the occupier’s personal circumstances, any factual objections raised by the Defendant [see below for more on factual issues] and in the light of those, what view the Court takes on whether an order would be lawful and proportionate.

This suggests that Lord Hope (and the Supreme Court) was not prepared to see a ‘structured approach’ to deciding proportionality of the kind found in Huang v Secretary of State for the Home Department [2007] UKHL 11. And so it proves. While Huang may be desirable in the context of immigration control, it is not appropriate in the context of a statutory regime, where parliament, for reasons of social policy had not provided the occupiers with secure tenancies. To require an Authority to plead to balance its interests against that of the occupier would be wholly inappropriate [41] and collapse the distinction between secure and non-secure tenancies, as well as giving rise to prolonged litigation. Rather than the Authority having to show its objective was sufficiently important to justify limiting a fundamental right, it should, in the ordinary case, be absolutely taken as read that the objectives (a) and (b) above are sufficient. It is against these aims that the Court should, ordinarily, measure the Defendant’s personal circumstances and factual objections.

Procedure

Turning to general procedural concerns, on which Mr Luba QC submitted that Article 8 would be satisfied by requiring that before possession proceedings are begun, the non-secure occupier knows why the proceedings are being initiated and has the opportunity to make representations to the decision maker. The Court was also asked to answer questions about the way claims for possession should be handled in the County Courts. This was best left to arise from how proceedings were actually dealt with in practice. Lord Hope declines to give a general view that reasons should be given. In the present cases reasons were given – either via the Introductory tenancy review, or in Ms Powell’s case, by warnings and an opportunity for interview on the rent arrears.[47-48]

I’ll pause here for a moment, as does Lord Hope, to deal with the specific issues before the Court on Introductory tenancies and temporary accommodation provided under Part VII Housing Act 1996. The respondent authorities argued variously that the terms of HA 1996 s.127(2) did not admit of having a proportionality review read into it in the same way as the demoted tenancy provision in Pinnock [55], and that Part VII contained no express provision that permitted a court to refuse to grant a possession order [38]. I don’t propose to spend long on this, though as the Court’s responses are not a surprise to anyone who has considered Pinnock.

On s.127(2), there is “a sufficient similarity between s.127(2) and s.143D(2) [demoted tenancies] to apply the reasoning in Pinnock to introductory tenancies also.” While the word “procedure” is not used in s.127(2), it does refer to the procedural requirements in s.128. Lawfulness must be an inherent requirement of the procedure in seeking a possession order and it must be open to the Court to consider whether the procedure has been lawfully followed. No declaration of incompatibility required.

Procedurally, where a proportionality defence is raised to a possession claim against an introductory tenancy, the Court must have in mind that the tenant has a statutory right to request a review of the decision to seek possession under s.129 HA 1996. Parliament withheld the right to a secure tenancy until the end of the trial period and, in the ordinary case, the authority’s presumed legitimate aims (as above) will encapsulate the relevant facts.[45]

On Part VII:

there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII. There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate. [39]

I’d note at this point that, as most defences to possession of Part VII accommodation will be for rent arrears or behavioural issues rather than discharge of duty, and a fresh application will only be appropriate on discharge of duty (or negative finding), it is unlikely that the availability of review etc. under s.202 and s.204 will be appropriate in such cases, or they will not be a timely response. But the availability of some other form of challenge or remedy under Part VII should be borne in mind.

Housing Act 1980 – interpretation/declaration?

Then there is the issue of s.89 [Dave taking over the ring in tag blog].  This is dealt with by Lord Hope at [57]-64], and considered also by Lord Phillips at [102]-[103].  It will be remembered that one of the points made in Pinnock (at [63]) was that the acceptance of the proportionality defence may require certain statutory and procedural provisions to be revisited.  One such provision was s. 89.  This provision gives the court discretion, in cases of “exceptional hardship” to postpone a possession but “… shall not in any event be postponed to a date longer than six weeks after the making of the order”.  The SC in Pinnock seemed to be offering a third way between possession and refusal – ie a postponement for a longer period than six weeks – which seemed an elegant compromise.  Although not precisely on point in Frisby, the SC nevertheless consider it authoritatively after full argument (although strictly, I suppose, obiter).  The problem, though, which faced the SC in Frisby was that s.89 could not be read down so as to make it compatible – no interpretive trick is available to get round the words “shall not in any event” – as Lord Hope put it, those words “could hardly be more explicit” (at [61]).  Further, the scheme of the 1980 Act was designed to confer protection on secure tenants (which were created by the Act) and not on other tenancies.  Reading down, then, was out of the question ([62]).  There is the ordinary case management powers open to courts (eg defer a possession order pending an appeal, adjourn to enable proceedings to be brought in the admin court [presumably now a rare occurrence]; if more info was needed to enable the court to decide what order it should make): “But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum” ([63]).

If that’s the situation, might s. 89 be incompatible with Article 8 (a straightforward gateway (a) claim in the old money).  Lord Hope considers the incompatibility issue at [64] and gives it short shrift:

No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non-secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blečić v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility.

So, what this means, as Lord Phillips explains, is that it limits the type of orders which a court can make (cf Pinnock at [62]).  Lord Phillips, however, is savvy enough to recognise one effect of this finding of compatibility, and it is significant:

The clear limit on the judge’s discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged.

Disposing of the appeals

Ms Powell: Hounslow had decided to offer Ms Powell suitable alternative accommodation after Pinnock on a non-secure basis with her agreement to pay the rent arrears following her.  Jan Luba, however, sought to go further and argued that the order should be set aside because the proportionality of Hounslow’s actions had not been considered at the original hearing.  They agreed that the possession order should be set aside because of the offer of alternative accommodation.  Had there been a live issue, they would have remitted it to the county court.

Mr Hall: Leeds had offered Mr Hall a secure tenancy post-Pinnock but the same issue was raised by Jan Luba about setting aside the possession order.  However, here no grounds had been presented for the suggestion that Mr Hall had a “seriously arguable” case on proportionality – “Had it not been for the offer of a secure tenancy, I would have dismissed his appeal”.  However, in light of the secure tenancy, no good reason would be served by the possession order so the appeal was successful for that reason only.

Mr Frisby: The unluckiest of them all – Birmingham had made no offer to settle and he was unsuccessful on the facts.  There was no reason for thinking that the had a seriously arguable proportionality defence: he hadn’t sought a review of the council’s decision to extend his IT; and did not attend the resumed review hearing of the decision to seek an order for possession: “The facts on which that decision was based are compelling, and no notice has been given of any grounds on which it might be suggested that the making of the order was disproportionate” (at [70]).

I Concur

There is then a second, generally concurring, judgment from Lord Phillips. Some of it has been dealt with above and some of it is dealt with under ‘Some preliminary thoughts’, below.

A couple of points do bear drawing out at this juncture though.

Firstly, Lord Phillips’ flirtation with not accepting the applicability of an independent proportionality determination for introductory tenancies at [78]-[79] has an air of just toying with the respondents. You can tell his heart isn’t really in it.

Secondly, Lord Phillips at [93] states that an authority may properly rely on a breach of a tenancy condition in an introductory tenancy even where it does not have any impact on any third party. This much is probably in accordance with the policy behind the Act, but one would expect that, if the seriously arguable threshold is crossed, different breaches may weigh differently in the proportionality exercise (probably rightly, I might add). However, I’m not certain that Lord Phillips actually goes this far. What he does do is to approve [97] of Waller LJ in McLellan, viz.:

“Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter- allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy.”

As Lord Phillips puts it “if a tenancy has given rise to complaints by neighbours of anti-social behaviour the authority does not have to be in a position to prove that these are well founded in order to justify terminating the tenancy” [93].

Lord Phillips deals with two interesting points in relation to homelessness cases (HA 1996, Pt.7). The first, which is not particularly surprising, is that:

“where the local authority simply wishes to relocate the defendant in alternative accommodation in the interests of the more efficient allocation of limited and fluctuating housing stock, it is not easy to envisage any issue of fact that the defendant could raise that would constitute a substantial ground for making a proportionality challenge.” [111]

The second relevant point in relation to homelessness cases is that “where the reason is non-payment of rent there is not likely to be much scope for bona fide issues of fact” ([112]) – but again, presumably, individual circumstances may count for more than where the homeless applicant has behaved in an anti-social manner.

For the purposes of this brief summary of Lord Phillips’ judgment the next relevant point can be found at [116]-[117], where his Lordship suggests that the homeless applicant must be informed why the local housing authority is seeking possession against them, but that this will not add anything to the obligations of authorities as it is “inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so” – and for efficient local authorities this much is true, but it may be that some LAs will want to reconsider their systems and processes, and quite rightly as it is inconceivable to me that fundamental fairness requires anything less.

His Lordship goes on at [117] to stop short of saying that reasons must be given before service of NTQ – a relief perhaps to those few authorities who still have some cases working their way through the system where NTQ was given at the start of the tenancy, as if it were a s.21 notice.

Then finally at [120] the ghost of the “tolerated trespasser” clanks its chains and wails mournfully. You just knew that we wouldn’t be free of it that easily. Lord Phillips’ view is that that there is no reason in principle why “if the validity of the notice to quit is challenged by way of defence to the claim for possession, the judge should not be entitled to deal with that challenge.” [120]. That, I think, must be right and welcomed, but what of the position where the NTQ is valid, and indeed a proportionate response, but subsequent events/personal circumstances call the proportionality into question? One hopes that there will be no barrier to setting aside the NTQ. Certainly this is the inference that I choose to believe that Lord Phillips is making.

Some preliminary thoughts in response

Chief: I don’t think that there was ever much doubt, after Pinnock, that an Art.8 proportionality requirement would be in play in these types of cases. Whilst it is open that the more appropriate result would have been a declaration of incompatibility in Pinnock, once that possibility had been dismissed it seems obvious that the same logic should apply here. To my mind the list of missed declarations of incompatibilities keeps on growing, s.89 being a further case in point.

Once again, the Holy Grail (as it were) of the applicability of art.8 to private sector tenancies has not been grappled with – nor should it have been in this case. But what is probably clear is that if a successful proportionality defence is going to be as difficult to raise as their Lordships think in relation to a public sector tenancy (an issue on which time may well prove them wrong) then it will presumably be even tougher in the private sector where the landlord’s A1P1 property rights will count for a great deal – not to mention that in some cases the landlord may have their own Art.8 rights (consider Gillow v UK (1986) 11 EHRR 335 where the ECtHR appeared to presume that the applicant’s Jersey property was still their “home” even during an extended period where it was let out to other people).

Dave: Forgive the rant but I’m not sure I agree with Chief about the number of cases which are going to cross the “seriously arguable” threshold on a full blown proportionality review.  Lord Phillips even seems to raise the bar when he talks throughout his judgment of the need for a “substantial” ground for a proportionality challenge.  How can a defence advocate plead such a defence without full disclosure from the landlord?  Further, the narrowness of the vision of proportionality (or, rather, blinkered approach to its possibilities) are emphasised throughout, to the detriment of the wide-ranging approach which seemed to have been adopted in Pinnock.  There must be questions as to how this decision sits with Pinnock, which seemed to be suggesting the adoption of a structured approach to proportionality which is dismissed here.  Remember, of course, that 24 paragraphs of the judgment in Pinnock were given over to the application of proportionality to the facts of the case; here, we get just a couple.  The significance of para [35] which Chief highlighted above means that the “social landlord” trumps the usual so that a sort of exceptional exceptionalism applies; personally, I think there’s more purchase in gateway (b) than a proportionality defence (and I never thought it would end up like that).  Conversely, though, if that (ie the logic of para [35]) is the case with social landlords, the same is unlikely to be true of private landlords who have no common public good/interest beyond the pursuit (sometimes) of profit.  So, Chief, I’m not sure that I agree that it will be/should be tougher against private landlords.  How odd to disagree with you, Chief (must be the first time!).

Chief: By way of a brief response, I’m not sure that the difference between us in terms of the end result for an occupier is that great. I still think that the DJ faced with a busy list, still dealing with the 10:30 cases at 12:55, and a duty solicitor (assuming that they will still exist) who is arguing with the LA representative about extracts from both this case and Pinnock, is not going to need too much pressing to grab hold of the opportunity to adjourn and make it someone else’s problem. The ultimate decision is still going to be a possession order most of the time. At least, I suspect that will be the position for a couple of years yet, until we get some loosening of restrictions from the appellate courts. I’m in full agreement over gateway (b) – it is going to be more important to far more occupiers than proportionality than I suspect a lot of people expected.

Following on from that, I must confess that I do wonder whether there will be many, if any, cases where the end result is any more favourable to the occupier than they would have secured post-Doherty and pre-Pinnock. I am left with a nagging doubt whether this is really what the ECtHR envisaged.

NL: I’m coming at this from a slightly different angle – as one who would have to size up the prospects of such a defence quickly on incoming cases. My view is that, while this judgment undoubtedly represents a limiting of the possibilities of Pinnock, it still leaves us in a different place to Doherty, and certainly doesn’t put us back pre-Qazi.

First the difficulties, as noted above. The high initial threshold presents a real and perhaps unbalanced burden on Defendants. A summary consideration, pre disclosure, will be hard where it is the landlord’s failure to consider facts, or follow processes, that is alleged. There were similar problems with Gateway B cases, and it is disappointing that this wasn’t at least reviewed by the Court as a possible issue for practical address in practice directions (HHJ Madge might be busy on those, judging by the reference to him in the Judgment). I fall between Dave and Chief on what will happen in practice. I suspect a lot of cases where the defence is raised will be adjourned out of the possession list, but set down for a short hearing soon afterwards – and at that point, a lot will be dismissed summarily.

The Section 89 point also makes the defence effectively an all or nothing matter. Either no possession order is made or, at best, you get a six week stay that you might have got on exceptional hardship grounds anyway. Perversely, given that the County Court has the acknowledged power to adjourn etc. prior to final hearing, this gives an incentive to the tenant to delay and seek adjournments simply to buy more time where it does not appear that the defence might be strong enough to defeat a possession order altogether. The suggestion in Pinnock that the Court may stay possession for whatever period as was appropriate to satisfy the proportionality of granting the order was both interesting and practical – it is the kind of order that County Court judges would adjust easily to making. It would also have avoided encouraging (at least to the same extent) delay as a legitimate (in the client’s interests) tactic. But here, we are told, 6 weeks will always be enough to satisfy proportionality if an order is to be made.

The presumption of the (public) landlord’s legitimate aims (and with it the abandonment of the structured balancing of interests) places another hefty burden on the the Defendant. But what isn’t addressed here at all is whether this is a) a rebuttable presumption and b) what happens if it is rebutted. For example, and this is one I’ve been thinking about lately, a situation where the public landlord actively procures notice to quit by one departed joint tenant – a la McCann v UK – while having no basis to proceed against the remaining tenant under HA 1985 (or 1988). Can the rule in Hammersmith & Fulham v Monk stand in these circumstances? My view is no – the bare private law right to ownership by itself is not enough to be a legitimate aim. And for anyone saying surely public landlords don’t do such things, they do indeed. Or, for another example, what of a failed successor who will be owed a full housing duty under Part VII if evicted (the facts of Austin v Southwark spring to mind)? If there is no under-occupation, where is the legitimate housing management aim?

On the side of the Defendant, though, I think what we now have is a set of defences that, while they are difficult to sustain and face summary disposal, present a fuller chance of defending mandatory or summary possession claims than previously. Where there is a failure to follow policy, Wednesbury unreasonableness, and other public law grounds, we still have a clear gateway B argument. Where there are personal circumstances, vulnerability etc., we have a proportionality defence and, of course, a combination of the two (as a failure to follow policy also goes to proportionality, for example). Have we forgotten the struggles over what personal circumstances meant in gateway B and whether they could be considered? No longer an issue.

Lastly, and something we raised in response to Pinnock, what of the private sector? Not -rightly- addressed at all in this judgment, but the means by which proportionality is read into statute here and in Pinnock (lawfulness of process and procedure) does not, I think, affect the statutory obligation on the Judge to make a possession order. It seems to me that the ‘shall make an order’ is not actually modified, only the ‘if satisfied that the relevant procedure has been followed’ element. That modification only applies to public body landlords (including RSLs). So there is no precedent at all for the duty of the court as a public body which would be required to deal with, for instance, the proportionality of a s.21 accelerated possession. That would be an entirely different argument.

As mentioned above, this note has been a group effort, so some of the discussion between ourselves is contained in this post. However, we all hope that the debate will continue long into the day/night in the comments below the line (or alternatively long into the next decade in the Court of Appeal).

——
[Chief's footnotes.]

* Or possibly not, depending on your views of the rather strained nature of the theme.

** If you look at the original script this line was probably ad libbed and therefore may have been the creative work of Travolta rather than Tarantino. The mind boggles.

*** NSFW or small children.

**** Including ITs, DTs, and homeless cases Sch.1 excludes a total of 15 categories from security of tenure. It is presumed that proportionality will apply in most of these, although there will be issues about “home” in relation to a number of them and para.11 deals with business tenancies under Landlord and Tenant Act 1954.*****

***** The issue of business premises is the subject of some rather confusing Art.8 jurisprudence from the ECtHR, which is perhaps a topic for another day.

****** We’re told that he rather self-deprecatingly informed the Court of Appeal in these cases that he was in all the cases where the occupier loses.*******

******* Isn’t there some sort of WordPress footnotes plug-in? [Not one that actually works. NL]