Hounslow v Powell newsflash
The judgment in London Borough of Hounslow v Powell [2011] UKSC 8 (Aka, Powell, Hall and Frisby) is out. We have a detailed post coming shortly on this significant judgment on proportionality defences after Pinnock, but for now, the headlines are:
Introductory tenancies – These are caught under the proportionality defence. S.127(2) Housing Act 1996 to be read accordingly.
Section 89 Housing Act 1980 – A court can’t make a possession order that defers possession for longer than the maximum period permitted under s.89, even if it considers it would be proportionate to do so. The Supreme Court declines to make a declaration of incompatibility in respect of S.89. There is no evidence that the period of six weeks maximum is insufficient to meet the needs of cases of exceptional hardship.
Temporary accommodation under Part VII Housing Act 1996 – there is nothing in Part VII which prevents a court from refusing to make a possession order if it considered it was not proportionate to do so. Possession proceedings against occupiers of temporary accommodation provided under Part VII can also face a proportionality defence.
There is no requirement for a local authority (public function landlord) to set out its legitimate aims in making a claim for possession, the presumption is legitimate purpose in managing housing stock. (The bare private law right to ownership is not sufficient by itself). The landlord may set out other reasons if it wishes.
In general, the Court views the prospects of a successful proportionality defence as being in ‘exceptional’ cases.
On the actual cases, Ms Powell had been offered alternative accommodation – appeal allowed on the basis there was no good reason to maintain the possession order. Mr Hall had presented no grounds for a seriously arguable case that the possession order in his case would be disproportionate and his appeal would have been dismissed, but Leeds had already offered him a secure tenancy so there was no reason to maintain the possession order and his appeal was allowed. Likewise, Mr Frisby had advanced no grounds for arguing that the possession order in his case was disproportionate – appeal dismissed. Pyrrhic victories on the whole then.
There is a lot more in the detail, and much to discuss – coming soon.
It’s not how long it is…
…but what you do at the end of it that counts*
FMB (EEA reg 6(2)(a) – ‘temporarily unable to work’) Uganda [2010] UKUT 447 (IAC)
The Immigration and Asylum Tribunal (Upper Chamber) is not our usual stamping ground, but this is a decision which has considerable broader significance for housing and benefit eligibility. It dates from November 2010, but we’ve just come across it. At issue was the meaning of Regulation 6(2)(a) Immigration (European Economic Area) Regulations 2006, which hold that an EEA worker does not cease to be treated as worker (and hence lose the right to reside and benefit/housing eligibility) if:
that the person “is temporarily unable to work as the result of an illness or accident.
What does ‘temporary’ mean in the context of the regulation? I won’t go into detail of the facts of the case, but it involved someone who had worked for 2 years as a teacher, then was unable to work for 4 years, then became a student. (The immigration question was this person’s right to reside and his daughter’s, a Ugandan, right to come to live with him).
The Secretary of State had refused the daughter a permanent residence card on the basis that the father was not a qualified person who had exercised treaty rights for more than 5 years, relying on that 4 year period of not working. This was overturned by the Immigration Judge, who found that ‘temporary’ in Reg 6(2)(a) meant that any illness or incapacity which was less than permanent must be regarded as temporary.
The Secretary of State appealled, initially on completely misconceived grounds of ‘unreasonable burden to a social assistance system’, Reg 13(3)(b). Unfortunately for the SoS, this regulation only applied to an initial right of residence for 3 months. A day before the hearing, the SoS sought to amend to argue that a temporary period of incapacity could not be as long as 4 years, (albeit with no authority on the point, and without being able to say what third state fell between ‘temporary’ and ‘permanent’).
The respondent argued that the regulations gave set period of time where such periods were intended. The omission in regard to ‘temporary’ was significant. Secondly:
when the EEA Regulations were read as a whole, reg 6(2)(a), relating to temporary inability to work, and reg 5(3)(b), relating to permanent cessation of activity, dove-tailed together in a manner implying that a person not permanently incapable of work was to be regarded as temporarily incapable of work.
The Upper Tribunal held that, if an inability or incapacity to work was not permanent, then it should be considered as temporary, citing the first definition in Collins English Dictionary (1991) of “Not permanent; provisional”. It noted in passing that “A finding of temporary inability to work for an extended period would not be sustainable if a person having given up work owing to illness then abstained from working voluntarily.” The appeal was dismissed.
So there we have it – binding authority for the proposition that there is no set (or arbitrary) cut off to the period for retaining worker status while temporarily unable to or incapable of work as a result of illness or accident. I’ve seen this crop up in homeless eligibility and it would also be relevant for benefit and Part VI eligibility.
*Sorry, sorry. I’m really sorry. I did try, but I couldn’t come up with anything better as a title. Quite a few worse, but none better.
Well I do declare
Hat tip to Christian at the Estates Gazette Law blog for this one.
Crown Estates are to sell their London ‘social’ residential estates to Peabody Trust. It appears that they are now urgently seeking a tenant to bring forward a test case for a declaration in the High Court as to the effect of sections 35(5) and 38(1)&(3) of the 1988 Housing Act on its 320 Rent Act regulated tenants on transfer.
The Commissioners of the Crown Estates believe that the upshot would be that the protected tenants become secure tenants, while tenants groups said they had advice that the result would be assured tenancies. While Peabody had covenanted to treat the tenants as protected tenants, there were still issues as to the operation of rent reviews and possession proceedings.
The Crown Commissioners applied to the High Court for a representation order, to represent the tenants’ interests. This was rebuffed as ‘extremely unusual’ by Mann J, who gave them until 4 March to find a tenant to act, on the basis that this tenant should be assured that their costs would be met.
This looks like it should be interesting. Not least because it would appear in part to bear on whether Peabody Trust is a public body. Hmmm.
For anyone who, like me, needs to look up remind themselves of the relevant sections, here they are..
S.35(5) says:
If, on or after the commencement of this Act, the interest of the landlord under a protected or statutory tenancy becomes held by a housing association, a housing trust or the Housing Corporation or, where that interest becomes held by him as the result of the exercise by him of functions under Part III of the Housing Association Act 1985, the Secretary of State, nothing in the preceding provisions of this section shall prevent the tenancy from being a housing association tenancy or a secure tenancy and, accordingly, in such a case section 80 of the Housing Act 1985 (and any enactment which refers to that section) shall have effect without regard to the repeal of provisions of that section effected by this Act.
S.38(1) says:
The provisions of subsection (3) below apply in relation to a tenancy which was entered into before, or pursuant to a contract made before, the commencement of this Act if,—
(a) at that commencement or, if it is later, at the time it is entered into, the interest of the landlord is held by a public body (within the meaning of subsection (5) below); and
(b) at some time after that commencement, the interest of the landlord ceases to be so held.
S.38(3):
Subject to subsections (4) , (4ZA), (4A), (4BA)] and (4B),] below on and after the time referred to in subsection (1)(b) or, as the case may be, subsection (2)(b) above—
(a)the tenancy shall not be capable of being a protected tenancy, a protected occupancy or a housing association tenancy;
(b)the tenancy shall not be capable of being a secure tenancy unless (and only at a time when) the interest of the landlord under the tenancy is (or is again) held by a public body; and
(c)paragraph 1 of Schedule 1 to this Act shall not apply in relation to it, and the question whether at any time thereafter it becomes (or remains) an assured tenancy shall be determined accordingly.
Unreasonable bungalow
Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010 [Unreported elsewhere].
This was the s.204 Housing Act 1996 appeal of a decision by Mendip DC that its offer of a two bedroom bungalow was an offer of suitable accommodation under s.206 of the Act and, therefore, it was right to discharge duty under s.193 of the Act.
Ms Thompson had been a traveller for 20 years. In February 2008, she moved her caravan onto land in Glastonbury owned by Mendip. She was served with a removal order in June 2008, but after negotiations, was allowed to stay. Ms T applied as homeless, and was initially turned down as not in priority need. After a report by a consultant psychiatrist, and consideration of a second medical opinion, Mendip revised that decision and in April 2009 accepted that it owed the full duty. Ms T was found to be suffering from anxiety and long-term depression, which was ameliorated by a rural living environment, and that conventional accommodation, certainly in a built up area, would make her ‘very anxious and worsen her depression as well as conflicting with her cultural values’. (This opinion was not challenged at any point by Mendip).
In December 2009, Mendip offered the two bedroom bungalow. Ms T refused and asked for a s.202 review of its suitability. The review letter contained a stated that “As Ms Thompson is a member of the gypsy community, there is a requirement for the Council, when considering the suitability of any offer of accommodation to her, to give special consideration to securing accommodation which will facilitate her traditional way of life”. The review then cites R (Price) v Carmarthenshire CC [2003] EWCA 42 Admin and the relevant passage of the Code of Guidance . Nonetheless, the review concludes that the offer of accommodation was suitable as “it was the only type of accommodation which could be offered at this time due to there currently being no suitable alternative to facilitate Ms Thompson’s cultural lifestyle”.
On appeal, Ms Thompson argued:
The decision was wrong because it failed to consider relevant facts, namely the existence of other sites. The Gypsy and Travelling Strategy document contained a list of potential sites. There had been no consideration of this and thus potnetial provision of accommodation for Ms T.
The decision was wrong because the decision-maker had misapplied the principles in Cadona v Mid-Bedfordshire Borough Council [2004] EWCA Civ 925. and Lee v Rhondda County Borough Council [2008] EWCA Civ 1013 . Cadona concerned urgent circumstances where all the Council could offer was B&B accommodation. This decision was upheld by the Court of Appeal.
Para 59 of Auld LJ’s judgment in Cadona was quoted, to the effect that this was short term accommodation as a short term measure taken as a last resort. It was not the case that there was such urgency in this case.
In Lee, there was no evidence as to psychiatric harm being caused by bricks and mortar accommodation, and, it was submitted, the law in Cadona was not altered by the Court of Appeal in Lee.
The review decision was unreasonable because of the evidence as to the effect of conventional accommodation on Ms T’s mental health. The offer of accommodation made fell below the minimum line.
In response, the Council argued that:
This was temporary accommodation and the situation could be reviewed.
There was no positive obligation on the Council to create a travellers’ site
Enquiries had been made as to the availability of a site via engaging an ‘expert’, Mr Swift. These enquiries did not have to be ‘of a CID standard’ and those made showed no sites.
On the medical evidence, the Council argued there was little it could do. Ms T had chosen an unconventional lifestyle and could do more to help herself.
Held:
In view of the medical evidence, the review decision was unreasonable and must be quashed. ‘Suitable must be given a broad meaning’ and the accommodation offered did fall below the minimum standard when considering Ms T’s circumstances which included her mental health.
This was enough for the appeal to succeed. However, the other grounds would also have succeeded. The decision maker failed to carry out adequate enquiries, failed to have regard to the information that found its way into the strategy document and either did not know of, or ignored, the existence of sites with the potential to accommodate Ms T whether in the ownership of the Council or not.
Further, the decision maker had failed to have regard to the principles in Cadona and Lee. The application of Cadona is limited to circumstances of urgency.
Decision quashed.
Comment
While this is only a County Court appeal, the interpretation of Cadona, on when bricks and mortar accommodation may be considered suitable for travellers, is clear in its direction. Further, on the evidence of the Council’s own strategy document, there were potential sites not considered in the review, strengthening the argument against the ‘this is all that is available’ decision. But it is the medical evidence – unchallenged – that was clearly most persuasive here. It could not be reasonable, or suitable, to place the appellant in accommodation which would exacerbate her depression.
To some extent, that key finding on the medical evidence side steps the issue, raised in a rather unsubtle and unappealing way by the Council, of a distinction between new travellers – a choice of lifestyle – as opposed to gypsies or travellers as an ethnic or cultural group. As we saw, this distinction was raised – without conclusion – by the ECtHR in Horie v UK [our report], with the question being posed whether a ‘personal choice’ of lifestyle would attract the same ‘positive obligation to facilitate a way of life’ as that owed to an ethnic or cultural group. I suspect this a question that will be revisited here in the future.
No admittance
Sharon Horie v the United Kingdom – 31845/10 [2011] ECHR 289
Back at the end of 2009 we reported the Supreme Court case of Secretary of State for Environment, Food and Rural Affairs v Meier and another, which upheld the use of a quia timet injunction – a prospective possession order – against a group of new travellers, preventing them from occupying any land owned by the Forestry Commission in the area.
Sharon Horie, one of the new travellers, applied to the European Court of Human Rights. This is the decision on the admissibility of the application.
The application was on the basis that:
20. The applicant complained that the decision to grant the injunction violated her rights under Article 8 of the Convention as it impacted on her ability to pursue her way of life as a New Traveller. She argued that Article 8 imposed on the State a positive obligation to facilitate the gypsy way of life (Chapman v. the United Kingdom [GC], no. 27238/95, BAILII: [2001] ECHR 43, ECHR 2001 I and Connors v. the United Kingdom, no. 66746/01, BAILII: [2004] ECHR 223, 27 May 2004) and in granting such a wide-ranging injunction the authorities were acting in violation of this obligation.
21. The applicant further complained that the domestic courts failed to consider the issue of proportionality before granting the injunction. In particular, she submitted that the House of Lords upheld the Court of Appeal’s decision in relation to the grant of an injunction without express consideration of proportionality.
The ECtHR decided otherwise and found the application inadmissible.
On the breach of Article 8:
The applicant had no right under domestic law to camp on any of the land covered by the injunction. The only change in her position effected by the injunction was the risk of imprisonment, which the domestic courts had expressed to be low.
The applicant had no right under Article 8 to establish a camp on the land. Article 8 did not require contracting states to make suitable sites available to gypsies (Chapman v UK). Even if new travellers were analogous to gypsies (on which more below), “Article 8 cannot be interpreted so as to require the Contracting States to tolerate unauthorised camping on land vested in the State.”
Finally, the Court is not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life. Although it covered thirteen sites in Dorset, this would only have accounted for a small proportion of land in the county. Consequently, the Court does not accept that following the grant of the injunction, the applicant’s only option was to move to bricks and mortar accommodation. In particular, the Court notes that notwithstanding the shortfall of local authority sites available in the United Kingdom, many gypsies and other travellers still live an itinerant life without recourse to official sites and the possibility that vacancies on these sites might arise periodically could not be excluded.
In any event, if the applicant were to camp on Forestry Commission land not covered by the injunction, the Forestry Commission would be obliged to comply with its procedural code based on the 2004 Guidance before seeking eviction and failure to do so could vitiate its right to possession.
Application dismissed. However, in what would be called obiter remarks if the ECtHR has such a thing, the Court noted that “Unlike Romani gypsies, who are widely recognised as an ethnic group, and Irish Travellers, who are a traditionally nomadic people with their own culture and language, New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group”. While no submissions were sought on this issue and, in view of its findings, there was no need to decide on it, it appears that a distinction between ‘personal choice’ and ‘ethnic and cultural group’ is something that the ECtHR may in the future consider in relation to the ‘positive obligation to facilitate the gypsy way of life’.
Comment
That obiter remark may set down a marker for future cases, and it is an issue that we will revisit in our forthcoming report of the s.204 appeal hearing in Anya Thompson v Mendip District Council, Taunton County Court 3 December 2010.
But otherwise the only particular significance in this case is the clear line drawn between the ‘positive obligation to facilitate the gypsy way of life’ and a requirement to make suitable sites available to gypsies under Article 8, where the 2001 case of Chapman is relied upon.
Turning european?
The UKSC judgment in Birmingham CC v Frisby, Leeds CC v Hall, Hounslow LBC v Powell is due on Wednesday 23 February (court Room 1 at 9.45). The background in the CA and the foreground (Pinnock) have been discussed in previous posts (here and here) to whet your appetite. The point at issue is so significant that it involves, hopefully, guidance going beyond the technical way in which introductory and non-secure Part 7 tenancies are brought to an end but nothing less than a new way of thinking about possession proceedings that is both European and national. If Pinnock provided a slightly out of focus picture, Frisby provides further pixels. As The Vapors suggested in Turning Japanese: “I want a doctor to take your picture So I can look at you from inside as well”. Hopefully Frisby will enable us to look inside proportionality.
We will obviously post on Frisby asap.
Yeah but, no but …
Vicky Pollard continues the Chief’s west country theme, albeit somewhat stretched, to demonstrate the Con-Dem approach to consultation about their affordable rent tenancy regime (ie what consultation?). We now have more detail courtesy of the HCA and a brief ministerial statement from Shapps together with a longer press release of the Shapps saves the world type. In summary, the HCA is giving out £4.5 billion of the £6.5 billion of public funding for housing to affordable rent schemes (if you want a quick recap on these – basically, the schemes enable the landlord to charge 80% of the market rent against fixed term, so-called “flexible” tenancies with special procedures regarding termination at the end of the fixed period: see HCA, paras 3.14-7). Bidders for this money can include affordable home ownership schemes (ie shared ownership predominantly, but also shared equity, with armed forces personnel particularly marked out as possible consumers of these “products”). The market rent is assessed in accordance with RICS procedures, on which there is a note from the TSA (see HCA, para 3.5). And it really is 80% – the HCA document says that bidders will have to persuade them that anything less will deliver what they (ie the HCA) want (para 3.11 – localism here being the “yeah but …”).
The idea is that at least 150,000 new-build and re-let properties will be brought into the “social housing” sector in this way but it is to be noted that the HCA scheme applies both to new-builds and re-lets (see HCA para 2.2, 2.13-9) so the 150,000 target needs to be regarded with caution – there’s in-built room to manoeuvre. The basis for the scheme, as I understand it, is that it moves from the old-fashioned bricks-and-mortar subsidy to personal subsidy of new build (ie new developments will be funded effectively through increased housing benefit receipts). This assumption that HB will take the strain (which is where the “yeah but, no but” frame is at its most pertinent) is dealt with in the HCA document, where there is a loosely worded pledge in essence not to alter HB rules for PRPs:
Government has already announced its intention to limit Housing Benefit payments to social rented sector tenants who under-occupy their properties, and this policy will therefore also apply to Affordable Rent homes. Other than this, we do not anticipate further changes in the short to medium term. A tenancy where a registered housing association (note that this term includes private Registered Providers) is the landlord is excluded from mainstream Local Housing Allowance rules. (3.6; emphasis added)
Therefore, the maximum rent is not to be fixed by reference to the LHA (para 3.7).
However, landlords will wish to consider the local market context when setting rents, including the relevant Local Housing Allowance for the Broad Rental Market Area in which the property is located. They should also take into account wider benefit policy such as the proposal, subject to the passage of the Welfare Reform Bill, to cap total household benefit payments so that workless families do not receive more in welfare than the median earned income after tax and National Insurance contribution earnings of working families. War widows and households with a member entitled to Disability Living Allowance, Constant Attendance Allowance or Working Tax Credit will be exempt from the cap. (para 3.7)
Equally significant is the intention that the usual players (larger PRPs) will be in competition with smaller players. This is a point Shapps makes most clearly in the press release, where he “… encouraged not only traditional housebuilders and housing associations to consider building homes through the new scheme, but also smaller developers looking to expand into housebuilding” (all of this being made possible, of course, by the Cave approach to the social housing “domain”). Whether those smaller developers/builders will be able to survive or bid effectively in the heavily marketised domain, where efficiencies of scale have led to agglommerations of PRPs etc (note the significance of cross-subsidy to the HCA proposals at 2.23-5, “close collaborative working with local authorities”, para 2.36, and VfM, paras 5.4 et seq), is unclear, but it may point an end to the current identity of social housing. It is made clear that “social rent” schemes will not be supported unless there is “a strong case to demonstrate why Affordable Rent would not be a viable alternative. All such cases will be considered on their individual merits” (para 4.21 – the last sentence is a particular favourite of mine).
Who is the market for these properties and how will they be allocated/let? Here, it becomes clear that the primary market, subject to local negotiation, is likely to be low income households in work, allocated through the nomination process, as there is sufficient flexibility in allocations to enable these properties to be marked out for such households. This, of course, assumes (contra the evidence) that such households stay in work and won’t be caught in the benefit trap as a result of the increased rents.
Holding down sweet charity
Zafar v Goddard, Bristol County Court, 13 December 2010
Word reaches us from the West Country of a not uninteresting case heard in Bristol County Court before Christmas.
Although we haven’t seen a transcript, we have been provide with an unapproved note of the judgment of DDJ Batstone.
The case came before the DDJ as a small claims case with a considerable history. Shortly after entering into an AST in 2008 Mr Goddard had left the property, with several months of the minimum period still to run. The first set of proceedings were then commenced by the landlord, Mrs Zafar, for unpaid rent up until the expiry of the tenancy. Mr Goddard counterclaimed for disrepair and raised as a defence that he had never been served with a notice complying with Landlord and Tenant Act 1987, s.48. The DJ who dealt with those proceedings found as a fact that no valid s.48 notice had been given, so no rent was due, and dismissed the counterclaim for lack of notice.
After those proceedings had concluded Mrs Zafar then served a s.48 notice on the Defendant and commenced fresh proceedings for the unpaid rent for the period during which the Defendant had left the property, but would still be contractually liable.
After several occasions where the claim was struck out and then restored it eventually came before DDJ Batstone in December. The principal issue before him was whether a purported s.48 notice could be served after the tenancy had come to an end. Section 48 of the 1987 Act reads:
“(1) A landlord of premises to which this Part applies shall by notice furnish the tenant with an address in England and Wales at which notices (including notices in proceedings) may be served on him by the tenant.
“(2) Where a landlord of any such premises fails to comply with subsection (1), any rent, service charge or administration charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.”
It was not in dispute that subs.(3) was not relevant.
The argument for Mr Goddard was that s.48 required notice to be served on a tenant – once the tenancy had come to an end he was no longer a tenant, therefore he could not be validly served with a s.48 notice.
The DDJ considered the Court of Appeal decisions in Dallhold v Lindsey [1994] 1 EGLR 93 and Rogan v Woodfield [1995] 1 EGLR 72, but noted that they did not address the specific question that was before him. Mrs Zafar relied in part on the Housing Act 2004, but in his judgment that was a different statutory scheme, using different wording.
In DDJ Batstone’s judgment the wording of s.48 is plain. It relates to “landlord” and “tenant”. It is in accordance with the policy of the 1987 Act, which indicates that notice must be served during the course of the tenancy. The judge accepted that there were arguments either way and noted that the policy, as he had interpreted it, might not be achieved by a landlord serving a notice one day before a tenancy ended.
There was a further issue about what the total sum of rent would be if was found to be due, but that need not concern us here.
The DDJ granted permission to appeal, but no word yet on what is happening with that.
Kudos to the University of Bristol’s Law Clinic, which ran the case on a pro bono basis for over two years.
It’s all in the detail – Pinnock part 2
Manchester City Council v Pinnock [2010] UKSC 6
As if to confirm that housing law is, well, complicated, there is a coda to the Supreme Court decision in Manchester City Council v Pinnock, which has led to a supplementary judgment being handed down. This deals with what order should be made and costs.
The first problem was that the parties couldn’t agree on the consequential order from Pinnock 1 – as you’ll recall, Mr Pinnock’s appeal of the possession order made against his demoted tenancy failed. The initial possession order was made on 22 December 2008, with possession to be given by 12 January 2009. Notice of appeal was served by 26 January 2009, as ordered by the first instance judge.
If the original possession order was found to take effect as from 12 January 2009, Mr P would have been occupying as a tolerated trespasser. He would be caught by the Housing and Regeneration Act in May 2009 and a new demoted (replacement) tenancy would have arisen. The Council had brought further proceedings, based on just that eventuality, but adjourned them. The Council argued that it would be against rational principle for them now to have to restart (or continue) proceedings against Mr P afresh. They argued that the Supreme Court Order should vary the date for possession in the original order to 21 May 2009, thus avoiding the creation of the new demoted tenancy.
Mr P took no issue with the merits of the Council’s position, but nargued that there was no jurisdiction to make such an order, even for the Supreme Court:
The first reason is said to be that we cannot in 2011 retrospectively amend Judge Holman’s order, made in December 2008, in order to deprive Mr Pinnock of a tenancy which statute gave to him on 20 May 2009; the second reason is that, by virtue of section 89(1) of the Housing Act 1980, Judge Holman was precluded from making an order for possession which took effect more than six weeks after 22 December 2008, when he made the order for possession, and we cannot amend Judge Holman’s order in a way which would mean that, albeit retrospectively, it would conflict with that provision.
But nobody tells the Supreme Court they can’t do something (or at least not if they have an alternative route)
The wide terms of Rule 29(1) of the Supreme Court Rules 2009 permit us to adopt an alternative way of giving effect to the Council’s justified concerns which is not open to such objections.
We propose to set aside the order for possession made by Judge Holman, and substitute a fresh order for possession to take effect on 10 March 2011. The effect of this will be to preserve Mr Pinnock’s original demoted tenancy, which started on 8 June 2007 (as explained at [2010] 3 WLR 1441, para 16) and which has continued pending the resolution of these proceedings. It will come to an end when possession is obtained against him pursuant to our order for possession.
On costs, the Council argued that it should have costs, having succeeded on the central point of the possession proceedings against Mr P.
Mr P argued “for an issue-based approach, contending that the real issue between the parties, which resulted in most of the costs and justified the case coming to the Supreme Court, was whether he could rely on article 8, and, as he won on that point, the correct order is that the Council pays 50% of his costs, at least in the Supreme Court.”
The Court made no order as to costs on the appeals and the Council’s costs award in the County Court should stand.
The decision to make no order for costs in the Court of Appeal and in this court is arrived at on a somewhat rough and ready basis, but it appears to us to reflect the relative degree of success enjoyed by each party on appeal, and therefore the overall justice of the position. The effect of the appeal process is that the Council has succeeded against Mr Pinnock on the ultimate issue between the parties, namely whether it is entitled to maintain its right to possession, whereas Mr Pinnock has succeeded against the Council in establishing a fundamental general principle, namely that article 8 can be relied on by someone whose home is the subject of a possession claim.
And that should be that.
There must be some kind of way out of here…
Or a Naughty Step special edition.
Another Naughty Step post? So soon? Well, yes. I have no control over how these things crop up and not only does this case feature some jaw droppingly bad behaviour, the demise of a whole business legal model and some innovative law, it features Nearly Legal’s own Francis Davey in a starring role (and one that is entirely angelic, I hasten to add, as if it could be possibly be otherwise). Granted there is the drawback that the case has nothing to do with housing law, but that minor hitch aside, how could I possibly resist? So, I wrote a post about the götterdämmerung of ACS:Law, Andrew Crossley and Media CAT. in Media CAT Ltd v Adams & Ors [2011] EWPCC 6.
The only trouble is that I got so interested, and the story so complex, that the post became an epic. As it has nothing whatsoever to do with housing law and may thus quite possibly be of limited interest, I decided not to put it on the front page. Instead it has a page of its own. For anyone who may be interested in the convoluted tale of hubris, strange contractual provisions and copyright law that unravelled at the recent hearings in this case, the post can be found here. For everyone else – we’ll have some more housing law along in a little while, promise.
N.I.M.A.C.
R (FZ) v LB Croydon [2011] EWCA Civ 59
-or-
Not In My Admin Court
We have written before about age assessments for those who might be under 18 – see most recently our post on R (CJ) v Cardiff CC and, prior to that, our post on the Supreme Court decision in R (A) v Croydon (which remains our only post to take its title from a Rolf Harris chart topper).
The long and short of Croydon is that an assessment that a young person is over 18 may be challenged by JR in the Admin Court.
In FZ the applicant sought to do exactly that, but was refused permission for JR by a deputy High Court Judge.
Permission to appeal to the Court of Appeal was granted, partly to give it an opportunity to consider some problematic aspects of age assessment cases following the Supreme Court’s decision. The Court of Appeal (Sir Anthony May (President of the Queen’s Bench Division), Smith & Aikens LJJ )was therefore asked to address three issues:
- Whether a local authority is obliged to give the person whose age they are assessing an opportunity to respond to provisional adverse findings which they are inclined to make;
- Whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at any age assessment interview;
- How the court should address the question whether the factual issue of the young person’s age is arguable. Should it start by assessing the person’s positive claim, or should it first examine the apparent integrity of the local authority’s assessment?
Sir Anthony May (President of the Queen’s Bench Division) gave the judgment of the Court.
On the first issue, the CA held that an applicant should be given a fair and proper opportunity, at a stage when an adverse decision against him is no more than provisional, to deal with important points that may weigh against him [21]. The Court of Appeal was not prepared to be prescriptive of the way in which this might be done and expressly did not require a formal “minded to” letter to be sent in every case.
In FZ’s case fairness could have been achieved by the interviewing social workers withdrawing from the interview room at the end of the initial interview to discuss their provisional conclusions. These could be recorded, with brief reasons, in writing, which could then be put to the applicant to allow him the opportunity to deal with them. The Court of Appeal emphasised that this was not the only way in which fairness might be achieved [21].
On the second issue, the CA considered a variety of situations where a child is to be interviewed where they should be given the opportunity of having an appropriate adult present [23]. For example, in R (NA (Afghanistan)) v LB Croydon [2009] EWHC 2357 (Admin), Blake J held that the applicant should have been given such an opportunity. In the instant case, FZ had claimed to be a child and at the time it was agreed that he was. He was also known to have mental health problems. The Court of Appeal considered that he should have had the opportunity to have an appropriate adult present [23]-[25].
On the third issue, the test for permission, the CA said that at the permission stage in an age assessment case, the Administrative Court should ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay [9]. In FZ’s case, the court did “not consider that the appellant’s factual case taken at its highest could not properly succeed in a contested factual hearing” [29].
Permission to bring judicial review proceedings was granted and, significantly, the claim was transferred to the Upper Tribunal [30]-[32].
Why is that last part significant? Well, in our note of the earlier Croydon case it was suggested that the Admin Court was going to be left with some difficult decisions. In the comments to the Cardiff case, S pointed out that it took up three days of the court’s time and that the Admin Court was not the place for these kinds of hearings. In a somewhat different context, Collins J referred to the “problem” of the Supreme Court’s decision (see [46]-[48] of the post-judgment argument). Now the Court of Appeal has weighed in with what may be perceived to be rather thinly veiled criticism of the Supreme Court’s approach.
[4]. … [T]he court hearing the judicial review claim will often have to determine the fact of a claimant’s age by hearing and adjudicating upon oral evidence. This may be an extensive and time consuming process. The Supreme Court does not seem to have been concerned with the administrative consequences for the court of this. The judgments of Baroness Hale of Richmond JSC and Lord Hope of Craighead DPSC are expressed in terms which appear sanguine about this – see for example Baroness Hale at paragraph 33 and Lord Hope at paragraph 54. The Administrative Court does not habitually decide in orthodox judicial review proceedings questions of fact upon oral evidence, although it has power to do so in appropriate individual cases. It stretches the court’s resources to have to do so more than occasionally. Yet there were, on 12th January 2011, 64 age assessment cases in the Administrative Court’s list at various stages of progress.
Accordingly, the Court of Appeal has given further guidance on the procedure to be followed in age assessment judicial review claims. If an age assessment judicial review claim is started in the Administrative Court, that court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal [31]. The expectation appears to be that these claims will now normally be dealt with in the Upper Tribunal, unless some jurisdictional reason prevents such a transfer [32].
On crowbars and considered conduct
Strydom v Fowler. Brentford County Court 24 November 2010
A County Court case involving possession, unlawful eviction, trespass and Housing Act 1988 s27 and s28. Our thanks (as ever) to the Legal Action ‘Recent Developments in Housing Law’ for this one.
Mr F was the assured shorthold tenant, on what had become a statutory periodic tenancy. The landlord was Mr S. Mr F built up rent arrears, eventually agreed at £2189, after the deduction of the deposit. On 16 May 2008, Mr S began possession proceedings, alleging rent arrears and damage to the property. At about this time, Mr F texted Mr S saying that he would be ‘out in two weeks, maybe sooner’.
Mr F went on holiday. On his return on 27 May he found the locks changed. He forced entry and found Mr S inside holding an iron bar. Mr F ran, breaking his heel climbing over a gate.
Mr F counterclaimed in the possession claim for damages under s.27 and s.28 Housing Act 1988, breach of covenant for quiet enjoyment and trespass.
At trial HHJ Oppenheimer awarded £2,600 to Mr S for rent arrears and damage to the property.
On Mr F’s counterclaim, he found that there was a threat of physical violence. Mr F’s text was only an expression of an intention to leave, not a determination of the tenancy. Mr S had entered unlawfully and did not have reasonable cause to believe Mr F had left, as the beds were made and toiletries present.
The agreed difference in the value of the property with vacant possession and with Mr F in occupation was £12,500. Taking Mr F’s conduct into account under s.27(7), given that it was unreasonable of Mr F not to have been in touch for 5 weeks or responded to text messages, the statutory damages were reduced to £2,500.
Damages for breach of covenant were assessed at £3,000
Aggravated damages for trespass assessed at £1,250
Total damages on the counterclaim £6,750, to be set against the award to Mr S.
Comment
We’d be interested to hear from Francis Ratcliffe, who acted in the case. A £10,000 reduction in statutory damages for ‘not being in touch or responding to texts for 5 weeks’ seems harsh on the face of it. There may be more to the context, of course, but it doesn’t appear that there was anything near enough for Mr S to assume Mr F had vacated or effectively surrendered the tenancy. And then that failure to be in touch set against a finding that there was a threat of violence? Hmm
Proper Crimbo!*
In More Effective Respopnses to Anti-Social Behaviour the Government sets out its plans for reforms of the ASBO and other associated remedies. In brief, the government thinks that:
(a) there are too many tools for dealing with ASB and practitioners tend to stick with the ones they know best;
(b) some tools (especially the ASBO) are slow, bureaucratic and expensive;
(c) ASBOs are not deterring ASB;
(d) tools designed to deal with underlying causes of ASB are rarely used.
Therefore, the government proposes to abolish some 17 remedies (ASBO, CRASBO, Interim ASBO, ASB injunction, individual support order, intervention order, crack house closure order, premises closure order, brothel closure order, designated public place order, special interim management order, gating order, dog control order, litter clearing notice, noise abatement notice, graffiti/defacement removal notice, direction to leave, dispersal order. phew) and to replace them with five new remedies:
(a) The Criminal Behaviour Order (“Crimbo”?), available on conviction for criminal offences;
(b) The Crime Prevention Injunction (“Crip”?), available in civil proceedings, with the corresponding burden of proof;
(c) Community Protection Order, level 2 (this is getting silly now – it sounds like something my cousin would have on his Xbox), a power for the court to order that a building or place be closed/have access limited;
(d) Community Protection Order, level 1 (get a Mario-mushroom to power up to level 2!), an order that attracts a financial sanction if breached;
(e) Police ‘direction’ power (the bling-removal order), giving police the power to require people to leave a particular area and to confiscate items from them.
Despite my mockery, there are some important points in the consultation: should other remedies be abolished? (A: yes, the Drink Banning Order, or Dribo); how should this regime apply to the under 18s? Those who want to reply to the consultation should do to so ASB-consultation@homeoffice.gsi.gov.uk by May 3, 2011.
* If you’ve never watched Bo Selecta, this joke means nothing to you.
Attaching weight to Mr Pickles
We noted round 1 of Cala Homes (South) Ltd v Secretary of State back in November (see our note here) in which the High Court found that Mr Pickles could not abolish Regional Strategies (e.g. “the south-west plan” governing the approach to, say, new-build housing developments) without primary legislation. He’s currently trying to get that legislation through Parliament in the Localism Bill.
After his defeat in round 1, he issued a statement which “while respecting the court’s decision” told authorities that the decision “changes very little” and that the government would press ahead with abolition via primary legislation. He, and the Chief Planner, informed authorities that this was a “material consideration” that they should have regard to when making any planning decisions. Cala Homes apparently felt (and with some justification) rather cheated by this response, and so sought judicial review for a second time, contending that Mr Pickels was attempting to subvert the statutory scheme and thwart the first judgment. That second claim is now been decided: Cala Homes (South) Ltd v (1) Secretary of State (2) Winchester City Council [2011] EWHC 97 (Admin).
The case was dismissed. Prospective changes to the planning system and policy framework were relevant to individual planning decisions and were, in principle, a relevant consideration to which authorities should have regard. The weight to be attributed to the changes were, however, a matter for individual planning authorities, subject to judicial review.
In addition, the decision of the Secretary of State could not be characterised as irrational; it was desirable for the government to explain how it intended to respond to judgments. Additional arguments on the Strategic Environmental Assessment Regulations are, frankly, too planning-specific to be covered here.
Not quite a right to buy
Fineland Investments Ltd v Janice Vivien Pritchard [2011] EWHC 113 (Ch)
From Lawtel. Not on BAILII yet.
This is a slightly sad tale involving the exercise of right to buy by a council tenant.
Ms Pritchard had entered into an agreement with Fineland whereby she would buy her council house at a discount using money provided by F and then sell it on to them. However, they were both seeking to avoid the effects of s155 Housing Act 1985 which would have required her to pay the discount back to the Council.
To do this an arrangement was made whereby P signed an undated transfer of land which they would use in three years time and granted a 20 year lease to F and further agreed to move out of the property within a few weeks. For their part F agreed to pay P the sum of £20,000.
P then got cold feet. She began to show signs of anxiety and depression and refused to move out of the property.
F asserted that P had given up her right to occupy the property and was a trespasser, they sought possession through the Courts. P argued that she had been pressured into signing the agreement with F, that it was an unconscionable bargain against which she was entitled to equitable relief, and alternatively that she lacked capacity at the time she signed the documents.
The Court clearly lacked sympathy with P and found against her on all counts. There was no medical evidence that P lacked capacity as her correspondence at the time showed. For the deal to be set aside as an unconscionable bargain it would have to be more than merely hard or unwise it would need to be made with a party who was in a position of weakness and the party in the stronger position would need to take advantage of that strength to the extent that there was a constructive fraud. That was not the case here.
Judgement for possession and damages for use and possession were awarded to F with those sums to be set off against the monies due to P under the agreement.
As J informed me, this case would probably not occur now as s163A has been inserted into the Housing Act 1985 precisely to stop this kind of bargain. Any such arrangement which relates to the right to buy and is entered into during the discount repayment period which envisages transfer of the property after the end of that period is captured by s163A and the requirement to repay the discount in s155 is brought into effect. Hopefully, these new provisions will put an end to this sort of arrangement.
Who knew?
Two cases on a similar issue to report, one in the High Court and one in the Court of Appeal. Both concerned Section 202 Housing Act 1996 reviews and both dealt with issues of the notification of the review decision. The cases are not available on bailii yet, or apparently elsewhere, but are reported in Sweet & Maxwell’s Housing View and I’ve seen transcripts. The cases are:
Dragic v LB Wandsworth High Court (QB) 21 January 2011 QB/2010/0485
Dharmaraj v LB Hounslow Court of Appeal, January 24, 2011 B5/2010/0201
Dragic v Wandsworth
This was a second appeal from a County Court s.24 Housing Act 1996 appeal. Mr Dragic was owed the full housing duty by Wandsworth. He had been in temporary accommodation and refused an offer of permanent accommodation that Wandsworth considered was suitable. Mr D requested a s.202 review, which was carried out. In a letter dated 23 March 2010, Wandsworth concluded that the accommodation was suitable and it was reasonable for Mr D to accept and live in the accommodation in discharge of s.193 duty.
This was the point that things went wrong and that gave rise to the issue on appeal. The issue was, quite simply, whether notification to Mr D’s solicitor of the review decision was notification to Mr D, for the purposes of the 21 day deadline for filing a s.204 appeal. Wandsworth had sent the review decision letter to Mr D’s then solicitors, Morgans. It was found, by the first instance appeal court, that notification would therefore have taken place on 25 March 2010, giving a deadline for the filing of appellant’s notice of 14 April 2010.
The Appellant’s Notice was actually sent to the Court by Mr D’s new solicitors, Blacklaws on 16 April and issued on 19 April. In directions, the Circuit Judge noted that an application to extend time to appeal had not been made until 5 July 2010. At the hearing of the s.204 appeal, the Circuit Judge held that the appeal was made out of time. The CJ rejected the argument that time began to run when the applicant received the notice, not his solicitors, based on the word ‘his’ in s.204(2), on which more below. The CJ held that the usual rule that where a solicitor is acting for an applicant, all that was necessary was to serve the solicitor applied.
The appellant’s solicitors argued that permission to appeal out of time should be granted because Morgans had told the appellant they could not act in the appeal for funding reasons and Blacklaws did not receive the review decision until 31 March 2010.
The CJ held that this was not a good reason, based upon an attendance note from Morgans which apparently showed that the appellant had been informed of the procedure and time limits for appeal on 25 March. Further the appellant had contacted Blacklaws on 25 March and “all the new solicitor had to do was contact Morgans to clarify the position”.
On second appeal, Mr Justice Supperstone QC heard the appellant’s argument that:
The CJ was wrong in law to hold that the 21 days ran from the date of notification to the appellant’s then solicitor. This ignored the word ‘his’ is s.204(2) and was inconsistent with Barrett v Southwark LBC [2008] EWHC 1568 (QB) [our report here], where time was taken to run from the date the letter was received by the applicant, which was the day after the notification was received by her advisers. Time should run from the date the decision letter could have come to the applicant’s attention, not his solicitors. This was supported by s.203(8)
S.204(2) reads: “An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.” ['he' being the applicant]
S.203(8) reads: “Notice required to be given to a person under this section shall be given in writing and, if not received by him, shall be treated as having been given if it is made available at the authority’s office for a reasonable period for collection by him or on his behalf.”
Mr Justice Supperstone QC dismissed the appeal. Barrett did not argue the agency matter fully, so was not relevant. The issue in Barrett was rather whether the relevant date was the date of letter or date of receipt. In any case, the appeal was well out of time.
The general rule of notification to an agent is in R v Chief Immigration Officer Manchester Airport ex p Insah Begum [1973] 1 WLR 141 and followed in Tkachuk v SoS for work and Pensions [2007] EWCA Civ 515. “Notice is sufficient to comply with the Act if given to the applicant himself or his agent, provided the agent is authorised to receive it on his behalf or may be presumed to have such authority.”
Dharmaraj v LB Hounslow
And in case one was wondering if the issue might yet go further, the Court of Appeal got to have a go shortly afterwards.
Mr D had applied as homeless following a possession claim by his private landlord. The LL claimed for rent arrears. Mr D was found intentionally homeless by decision letter dated 13 August 2009. On 19 August 2009 Mr D’s solicitors requested a review and on 21 September 2009 submitted documents and a statement in support – Mr D’s argument being that the landlord had got rid of him as he complained a lot about failure to repair defects.
On 28 September 2009, the Review officer faxed a 7 page decision to Mr D’s solicitors. The review upheld the s.184 decision. At the end of the letter, it stated that the applicant had “21 days from the date of this letter” to appeal on a point of law.
On 13 October 2009, notice of appeal under s.204 was issued. The basis of the appeal was that:
there was the procedural deficiencies in the notification, the consequence being that there was no effective review decision made and therefore it was the original decision that the Appellant had made himself intentionally homeless which was the decision being appealed. If that prong were unsuccessful and the review decision is on appeal, the reviewing officer had failed to take into account relevant considerations.
The appeal was dismissed on both grounds by HHJ Mitchell at Central London County Court. The applicant appealed on the first issue, that there was no effective review decision.
At the Court of Appeal, the applicant argued that:
S.204(1)(b) provided that an appeal may be brought on the original decision if the applicant is not notified of the review decision with the (56 days) period set out in s.203.
1) The review letter is defective because the final paragraph does not comply with s.203(5) because it should have said that the Appellant had 21 days from his being notified of the decision to appeal;
2) By reason of s.203(6) notice of the review is not to be treated as given;
The argument was therefore that
sending the Appellant’s notice by fax [to the solicitors] did not comply with the statute. The notification was still defective in form despite being sent on the same day. The language of the Act allowed no scope for the interpretation that the local authority were arguing. Further, there had been no waiver by the Appellant of the right to argue that there was no review decision capable of an appeal.
Hounslow argued that:
1) The review letter complied with the statute because it correctly informed the Appellant of the date by which to appeal. The Appellant was notified by virtue of it being faxed;
2) If s.203(5) was not complied with the time limit did not start to run against the Appellant but the review decision should not be treated as a nullity;
3) The notice of appeal was issued as an appeal against a s.202 decision and the Appellant had the opportunity to consider it. The Respondent asked the court to consider the parliamentary intention of the legislation when making its decision.
The Court of Appeal found that notification to the applicant’s solicitors was good notification, despite the arguments raised on the meaning of s.203(8) and s.204(2), as in Dragic. There was no requirement for personal service and the Council was entitled to take the solicitor as being the appropriate person to serve. “The appointment of Solicitors to request a review carries with it a holding out of those Solicitors to be authorised as able to receive”. The decision in Dragic – properly mentioned by the applicant’s barrister who also acted in that case – upheld.
The review decision letter therefore correctly set out the time for appealing, given that it was faxed within working hours. Further,
It is not right to construe s.203(6) as imposing a linguistic requirement that the review decision letter must use precisely the language of s.203(5). What matters is the substance of the information to be supplied rather than the precise form.
Appeal dismissed.
Comment
If I’m being honest, I’m not particularly surprised by the outcomes here. Certainly my presumption was that if a solicitor had made review submissions, service of the decision on the solicitor would be service on the client, for the purposes of the deadline to appeal. While statute does specify ‘his being notified’, a solicitor formally acting would surely stand in as that person. That the Council would be entitled to rely upon it as service upon the applicant is really to say nothing more than the Council are entitled to presume that the applicant’s solicitor will inform their client promptly and not faff about. It is worth noting that Barrett did involve an ‘extension’ of a day from the date a review decision was received by the applicant’s advisers, but that the advisers were an Advice Centre, not solicitors.
The finding on the language of the ’21 day warning’ in Dharmaraj is perhaps a little less than helpful, though. While the phrasing used -21 days from the date of this letter’ – was good in this this instance as the letter was faxed in working hours, it is a phrasing that crops up all too commonly on letters that are posted and are received two, three or more days after the date on the letter.
The Court of Appeal make no particular finding on that possibility, but do state that it is not a matter of including the precise statutory wording:
The wider approach is to consider whether there is a breach of the underlying purpose of the statute, not to automatically make it a nullity.
I simply can’t see why the notification in the review decision should not be required to set out the correct position, without ambiguity or indeed error.
In a situation where someone may be trying, with considerable difficulty these days, to find an advisor, an apparent shortening of time could cause them to give up while still within the time limit. My view is that it would hardly be a hardship to Councils for the stock phrase pasted into the end of each s.202 review decision to properly and accurately read ‘ within 21 days of the date you received this letter’. There is no valid reason for them to say anything else.
Distinguishing Tiensia
Gemma Shepley v Majid Yassen, Tameside County Court, Thursday 13th January 2011 (Unreported)
The above case on the, increasingly litigated, tenancy deposit protection provisions was brought to our attention and is of particular interest as it specifically distinguishes itself from the Court of Appeal decision in Tiensia (reported on here).
In this case the tenant was granted a 12 month assured shorthold tenancy in late November 2007. This was renewed for a further 12 months on expiry and then continued on a periodic basis until February 2010 when the tenant vacated the premises and the tenancy came to an end. The tenant was informed that most of their deposit would be retained and after taking advice sent a letter before action in early April 2010 for a failure to protect the deposit and seeking the usual remedies. No response was received and part 8 proceedings were commenced in the Court at the beginning of May. The deposit was finally protected on 3 August 2010 with the DPS but none of the prescribed information was ever served on the tenant.
The case then came before DJ Stockton and was heard on two occasions concluding on 13 January 2011.
The Court found as a fact that the deposit had not been protected at the time the tenancy ended. DJ Stockton could probably have then found for the tenant on the basis that the prescribed information had not been served. However, he actually elected to follow the same line of reasoning as DJ Goodwins in Woods v Harrington (reported by us here) and held that protection after the end of the tenancy was not acceptable. He specifically distinguished Draycott and Tiensia on the basis that these two cases were concerned with deposits that had been protected late but were still placed into schemes before the tenancy ended.
This seems to be absolutely correct. If a landlord can put the deposit into protection after the tenancy has ended then it makes a total nonsense of the legislation and almost encourages a “wait and see” attitude. The senior courts have been reluctant to make any findings as to the implied or actual ‘initial requirements’ of a scheme, which must be complied with to avoid the penalties, but it would seem to be an absolute requirement of those schemes that there is at least a tenancy in place to which the deposit they are being asked to deal with relates. Leaving aside the legal arguments, to allow monies to be placed with schemes for non-existent tenancies would risk making them unviable as business entities, especially the two insured schemes which have to obtain insurance for the deposits they protect on a commercial market.
This case also acts as a small curtain raiser for the senior courts. An appeal with similar facts (Potts v Densley) is on the warned list in the High Court in the week commencing 7 February and Hashemi v Gladehurst which also has this point as an issue is listed for a hearing before the Court of Appeal on 22 or 23 March.
With thanks to Andrew Mills at Shelter.
What to review?
Should you not accept, the Council will construe that it has DISCHARGED ITS STATUTORY DUTY to you. This will include terminating the licence for any temporary accommodation you may occupy and no longer offering any further assistance with rehousing.
Under section 202 of the Housing Act 1996 you have a right to request a review of this decision if you do not agree with it.
The Nzamys wrote a 4 page letter asking for a review, setting out why they didn’t consider the offered property suitable, as it was worse than were they were. It set out the steps the family had taken to improve their current property and steps taken by others, including the Council and the police. It ended:
Now, I ask you kindly to look at our case…..and make a right decision… Finally, I ask you please to offer us permanent accommodation ..but until that time we can wait in our current flat…
Brent took this as a request for a review of the suitability decision and found against the Nazmys. There was an appeal to the County Court, then this second appeal to the Court of Appeal.
The review officer upheld the alternative accommodation as suitable and it appears also he inferred there was a discharge of duty. The judge in the county court upheld the review officer’s decision and, whilst his judgment is not entirely clear, he inferred that there was a discharge of the duty and dismissed the appeal
At the Court of Appeal, the appellants argued that their letter should be taken as a request for a review of both the suitability decision AND the decision to discharge duty.
The parties were agreed that the review decision did not properly consider the decision to discharge duty, but Brent maintained that the Nzamy’s handwritten letter was a request for a review of suitability only, which the review officer had properly considered. In any event, there had been no decision to discharge duty until a later stage.
The Court of Appeal, in Black LJ’s extempore judgment found that:
13. Against that background, it must be asked what was on the agenda of the review officer in conducting the review? One has to look at the letter seeking a review in order to decide that. Plainly it is necessary to look at the handwritten letter by an individual applicant with common sense and to take a broad view as to what is being sought. If the family were to be allowed to “wait in their current flat” until permanent accommodation became available, they had to disrupt the local authority’s intended conclusion that their duty under s.193(2) would be discharged.
14. Against that background and bearing in mind that the authority’s letter of 23 December 2008 had made plain that they would discharge their duty, it is difficult to construe the final passage of the appellant’s letter of 4 January 2009 as anything other than a request that the review officer should view the letter as a request for a review of suitability and as a request for a review of the decision to discharge the duty.
The prospective decision by the Council to discharge duty set out in its letter of December 2008 was itself reviewable. (As per Ravichandran v Lewisham LBC [2010] EWCA Civ 755 – the link is to our note – which is not cited but clearly is followed.) The Council had made it clear that it would discharge duty and this was reviewable.
The appeal was allowed and remitted to the Council for a s.202 review of the decision to discharge duty.
So, Local Authorities should take a common sense view of review requests by un-represented applicants and take a broad view of what is being sought. A strict or legalistic view should not be used to exclude a review of decision to discharge.
Dispensing with consultation
We covered Daejan Investments Ltd v Benson and others [2011] EWCA Civ 38 when it was in the Upper Tribunal (Lands Chamber) (our note, here). For a summary of the relevant law and facts, please see that earlier post (slightly lazy, I know, but I am very tired).
Daejan, as I suspected, pursued the case to the Court of Appeal and their appeal has now been dismissed. It’s a not uninteresting judgment.
The Court of Appeal notes that the primary focus of an appeal is likely to be the decision of the LVT and not the UT(LC), although it would be appropriate to give some weight to the approach taken by that specialist appellate tribunal. Although they don’t say so, this must only be so where (as here) the UT(LC) conducted the appeal by way of review and not re-hearing.
On the power to dispense with the consultation, the Court of Appeal held that financial consequences of failing to grant dispensation were irrelevant:
(a) if that were not so, then it would mean that, the more expensive the works in question, the more likely it was that dispensation would be granted;
(b) it was impractical to look at the financial consequences for the parties, since this would require the LVT (or UT(LC)) to have to examine how financially secure each landlord and tenant was;
(c) the power to dispense was with the consultation requirements, not the consequences of non-compliance with those requirements.
The nature of the landlord might be a relevant factor in deciding whether to grant dispensation (i.e. a lessee-owned/controlled company might enjoy greater flexibility than a private party) but that did not arise in the present case
The key feature was likely to be the degree of prejudice caused to the tenants. A proper consultation process was the essence of the statutory scheme and curtailing consultation was a serious failing that could cause significant prejudice.
So, what sort of cases might be suitable for dispensation? In the view of the CA, there were three: (a) emergency works; (b) where there was only one possible contractor; (c) where there had been a minor breach which had caused no prejudice.
Who you gonna call?
* allegedly.
** wrongly.
*** Although, of course, s.222 permitted authorities to seek injunctions both to aid the criminal law and to restrain a public nuisance; Shafi appears to have left the latter untouched.