Scotland’s homelessness advance warning system

Published
by
chief
on 6 January 2009
in Housing law
. 0 Comments

News of a change from over the border.  From 1st April landlords will have to notify the local authority in a standard form when they raise proceedings for possession.  This will give effect to s. 11 of the Homelessness etc (Scotland) Act 2003.  Notice can be posted or sent electronically to the local authority.

The Notice to Local Authorities (Scotland) Regulations 2008 SSI 2008/324 details the information that a landlord is required to give:

  • Details of landlord and their legal representative
  • Landlord’s registration reference
  • Tenant’s name
  • Address of property
  • Date tenancy started
  • Details of which court and when proceedings were raised
  • What statutory provision proceedings are being raised under

There are no direct sanctions for landlords who don’t comply, but discussions are ongoing.  The requirement to give notice is a small change, but it may make quite a difference to the abilities of local authorities to plan ahead and for succesful interventions to be made through e.g. rent deposit schemes so that homelessness can be prevented.

A warm welcome

Published
by
NL
on 29 December 2008
in Housing law, law blogs and blogging and tech
. 5 Comments

We’ve had an email from HHJ Madge, perhaps better known to housing lawyers as Nic Madge, co-editor with Jan Luba QC of LAG’s housing law updates and general all round doyen of the field.

I’m delighted to be told that Nic Madge has started his own site, which contains, amongst many other things, copies of the LAG housing updates for the last year (but not the current one, for obvious reasons), copies of many articles on the ECtHR and housing, and materials on possession claims prepared for the Judicial Studies Board. There is much else worth reading, some of which one will almost certainly not have seen before.

Given Nearly Legal’s general view that legal information and discussion should be as openly and freely available as possible, this is very welcome news, particularly coming from such a significant figure in the field. That sussuration you hear is the distant sound of my loud applause filtered down the tubes of t’internet.

If I have one small quibble, it is that the back issues of the housing law updates are provided in PDF format. The reasons why are easily understandable, but it does somewhat stand in the way of making them simply and directly searchable by key term, unless each one is downloaded. (I will, of course, be downloading each one. And then seeing what kludge I can perform to turn them into one unified PDF for search purposes). I know that google indexes inside PDFs, and a specialist google search term may be able to search the whole archive (I’ll get to work on that too), but simple text on a web page is always easier to search and to link to. [Edit. Nic has kindly added a word document index with cases and keywords for finding cases.]

Quibble aside, I only hope that others follow in Nic Madge’s footsteps.

Man or boy?

Published
by
chief
on 29 December 2008
in Housing law
. 2 Comments

“That is the question, easy to ask but not so easy to answer” - as it takes the Court of Appeal 40 pages (right before Christmas, thank you very much, hence this rather late note) to answer that question in R (A) v LB Croydon; R (M) v LB Lambeth [2008] EWCA Civ 1445 I’d have to agree.

M and A arrived in the UK from Libya and Afghanistan respectively.  Both applied for aslyum - M to Lambeth and A to Croydon.  Both applicants said that they were under 18, but social workers decided that they were over 18.  The decision on age is an important one - if an individual is under 18, and therefore a child, responsibility lies with the local authority (see ss. 17 & 20 of the Children Act 1989).  For adults the responsibility lies with the Home Office, previously administered by NASS, now carried out by UK Border Agency.

Three issues were identified in these cases: the precedent fact issue, the Art 6 issue and the Art 8 issue.

Precedent fact

It was argued on behalf of A and M that the question of whether or not they were children involved establishing a fact precedent to the local authority’s exercise of its powers.  As the local authority could not be the judge of the extent of its own powers, its decision could not be conclusive, but must be subject to investigation and decision by the courts.

As Lord Scarman said in R v Home Secretary ex p. Khawaja [1984] 1 AC 74 “where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied”.

In Ward LJ’s judgment this argument could not succeed.  The question to be determined was not whether the applicant was a “child”, but whether they were a “child in need”.  This transformed it into a subjective judgement, not an objective one.

Art 6

This was split into five sub-issues (although 1 & 2 are hard to separate):

  1. Is there a right to accommodation?
  2. Is it a civil right?
  3. Has there been a determination of it?
  4. Were the social workers independent and impartial?
  5. Does judicial review constitute sufficient compliance?

Ward LJ stated straight away at [36] that he was happy that JR was sufficient compliance, as s. 204 appeals were in Runa Begum, but that he felt “obliged to be foolhardy and deal with the first three questions, happy in the knowledge that my meanderings can be treated as obiter if it is thought that I have gone wrong.”

Is there a right to accommodation?

All parties accepted that there was no doubt that there was duty to provide accommodation once it had been decided that an applicant was a child.  There was an absolute right to accommodation where the subjective evaluative criteria are satisfied.  The debate was whether A and M had any rights if the criteria are not satisfied and the claim for accommodation is rejected.  Ward LJ agreed with the submission of John Howell QC (on behalf of the interveners Liberty):

The relevant right under section 20 is the right to accommodation. There are a number of conditions which have to be satisfied before the duty to provide it arises. But any dispute about whether one or more of those conditions is satisfied is one directly determinative of whether the relevant right exists.

In light of the doubts expressed about this finding, the whole of [37]-[49] are worth careful consideration.

Is there a civil right to accommodation?

Ward LJ considered what kind of accommodation a child was entitled to under s. 20.  In his judgment “looking at the process as a whole, beginning with the assessment under section 20 but ending with the allocation under section 23, the decision-making process has the character of exercising a discretionary power which destroys the notion that a right is involved.” [53]

Ward LJ concluded at [59] that:

the right of accommodation given by section 20 read with section 23 cannot be classified as a civil right because:

(1) too much discretion is given to the local authority to decide what kind of accommodation is to be provided, and
(2) the accommodation can range from, at one extreme, a flat which the child is licensed to occupy - which does have the character of a private law right - to at the other end of the spectrum, the family home which smacks entirely of a social services public law provision.

 Was there a determination of a civil right?

Clearly not, as there was no civil right, but assuming that there had been a civil right Ward LJ felt that there had not been a determination as there were so many other questions still to be resolved before the entitlement to accomodation arises (is the applicant in need, is the applicant within the LA’s area, do they appear to require accommodation, etc).

Were the social workers independent and impartial?

No - they were employed by the LAs and were therefore not independent, so Art 6(1) was breached.

Does the availability of JR comply with the requirements of Art 6?

As already noted above Ward LJ felt that it did.  The present case was “indistinguishable in kind from Runa Begum and easily distinguishable from Tsfayo.” [81]

He concluded at [84] that:

age determinations, being part of broader questions relating to the provision of accommodation, and being but one of the many responsibilities for local authorities to provide support for children and families under Part III, are decisions which fall squarely within the social field of child care and are, therefore, customarily and properly entrusted to the social workers to decide. It follows that judicial review does comply with the standard set by Article 6.

Ward LJ was “comforted” by the similar conclusions in Ali v Birmingham.

Art 8

The Art 8 issue, which was only raised on behalf of A, was whether the assessment of his age enaged his Art 8 rights to respect for his private life.  While Ward LJ accepted at [88] that a decision as to whether someone was an adult or a child could be covered by Art 8 (as interpreted in Pretty v UK), the assessment in question was only a staging post on the way to the consideration of a broader question.  It did not affect A’s physical or psychological integrity, his personal development or his personal autonomy.

Additionally, the procedural aspect of Art 8 could not add anything when Art 6 had not been breached.  In this respect Ward LJ noted a correlation between Arts 6 and 8 in Gilboy.

Conclusion & Doubts

 

Ward LJ concluded that although the procedures did comply with Art 6 there was an urgent need for a better system.

 

 Maurice Kay LJ and Sir John Chadwick expressed doubts as to whether Ward LJ was right that s. 20 provided a right to accommodation before the local authority had made their decision, but agreed that it was not necessary to decide this to determine the appeal.

Have a good break

Published
by
NL
on 23 December 2008
in job and law blogs and blogging
. 0 Comments

Nearly Legal is on holiday for a bit. Don’t expect anything much before early January. Unless, of course, something comes up, or a whim takes one or more of us by force.

A well earned rest to all our readers, before a doubtless to be frenzied 2009.

Refusing Temporary Accommodation

Published
by
NL
on 21 December 2008
in Housing law
. 1 Comment

Once someone is in temporary accommodation, following an acceptance of the full housing duty to a homeless person by the local authority, what happens when that temporary accommodation becomes unreasonable for the household to continue to occupy, but alternative temporary accommodation is refused by the tenant?

Muse v London Borough of Brent [2008] EWCA Civ 1447 was an appeal arising from LB Brent’s decision to discharge duty under s.193 HA 1996 when Mrs Muse refused alternative accommodation offered when her current temporary accommodation (at Press House!) became overcrowded.

Mrs Muse was successful at s.204 appeal, arguing that s.193(5) did not apply. S.193(5) provides:

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

Mrs Muse argued that this did not apply where the person was not homeless and she had an assured shorthold of the Press House flat. This was accepted by the Court. Brent had also announced, in their offer and discharge letters, that they would ‘instruct the housing association [the direct landlord] to seek possession’. This turned out to be an error. However, Mrs Muse’s housing benefit was paid at higher rate as a person in temporary accommodation than as ‘just’ a tenant, so rent arrears would accrue quickly, as the rent was at a ‘temporary accomodation’ level. (This shows how ludicrous the charges made for temporary accommodation are - particularly when, as here, it is actually an assured shorthold tenancy! Stadium Housing again…)

Brent appealed to the Court of Appeal. Brent argued that
1) Once a duty arises, it continues until it ceases. It does not go into abeyance or become dormant. If the applicant is in temporary accommodation she can at any time be asked by the housing authority, in this case, Brent, to move to other accommodation. If the person to whom the duty is owed is occupying accommodation belonging to a private landlord, it follows that the housing authority can ask the private landlord to give her notice seeking possession if it wishes her to vacate the premises. This is important for policy reasons. Unless Wednesbury unreasonable, Brent can move those in temporary accommodation.
2) when it became aware that Mrs Muse was in unsuitable accommodation, it became obliged to offer her suitable accommodation and thus its duty would cease if it made her an offer complying with s 193(5), which she refused.

Mrs Muse made similar submissions as before.

Held: R (Awua) v Brent London Borough Council [1996] AC 55 suggests that where temporary accommodation is unreasonable for the person to remain in, they again become homeless. (No submissions were made on Auwa). So here a fresh duty arose when Mrs Muse’s household became overcrowded. As there is no requirement for an application as homeless to be made in particular form, the fresh duty arose when it was clear to Brent that Mrs Muse was overcrowded. Alternatively, the duty was never fully discharged in law, and arose again once the temporary accommodation became unreasonable to remain in.

40 On either basis, Brent was obliged to, and did, offer alternative suitable accommodation. Brent complied with s 193(5). Accordingly, the offer was on terms that Brent’s housing duty would be discharged if Mrs Muse declined to accept the alternative accommodation. If Miss Roberts’ submission on s 193(5) were correct, there would be an extraordinary internal inconsistency in the position in law of somebody like Mrs Muse. That person would be in a position to say that she was homeless and that Brent owed her a full housing duty, but that she was not homeless at the point in time when she made an application for transfer. An interpretation of s 193 that does not produce this basic inconsistency is clearly preferable.

41 The result of this conclusion on s 193(5) for Mrs Muse is severe because it means that Brent no longer owes her a full housing duty. It is, therefore, essential to consider whether the judge was correct on his alternative reasoning (unfairness). Mr Carter in opening his appeal submits that Mrs Muse was always aware that she was accommodated on a temporary basis. He further submits Brent followed the statutory safeguards which were required by Parliament and which Parliament clearly considered to be adequate. Mrs Muse was an assured shorthold tenant and therefore had no long-term security. She and those representing her had in any event consistently maintained that 42 Press House was unsuitable for her. Accordingly, Brent would have been acting unlawfully if it had not found accommodation which was suitable.

The subsiduary argument on unfairness was considered. Mrs Muse submitted she should have been given a full explanation of what Brent were doing once they had received the transfer request.

Held:

The type of notice for which [Mrs Muse] contends is not one required by section 184. Mrs Muse suffered no prejudice from any non-compliance with s 184. (Moreover, any non-compliance with s 184 could not affect Brent’s obligation to provide her with suitable accommodation, or the validity of the later offer of accommodation in fulfillment of that duty). It is a reasonable inference from the correspondence and from the attempt at rehousing which did not go ahead that Mrs Muse knew that Brent accepted that her existing accommodation was unsuitable for her, and that that was why it was trying to rehouse her. Mrs Muse was also, to the knowledge of Brent, advised by solicitors, and they could reasonably be expected to advise her fully on the legal situation. Accordingly, in my judgment, Brent was not in fairness obliged to offer her the choice of moving to alternative accommodation or staying at her existing accommodation.

On waiver: This had not formed part of the case below, and while Mrs Muse could possibly have waived the performance by Brent of its duty, her household were also affected. the Court was not prepared to find a waiver had been made.

Appeal allowed, but on Brent’s letters to Mrs Muse stating that the Housing Association would be instructed to pursue possession:

I wish to make some observations about the passage in the letter of 5 October 2006 which I set out in paragraph 17 above. Mr Carter accepts that this statement was misleading. He accepted that Brent had no legal right to instruct the landlord to obtain a court order for possession. He informs us that all Brent did in practice was to inform the landlord that the housing duty had been discharged and that the housing benefit would therefore be paid a lower rate. The fact however, is that this statement was made. I am surprised to see a public authority make this sort of incorrect statement. Of its nature, it was bound to cause distress since it would have led the tenant to believe that he or she would shortly be homeless and on the street. It was therefore a very serious statement to make. It is properly accepted that it was incorrect. A person in Mrs Muse’s position is a private law tenant of a housing association and it would be for the housing association to consider its position. It is not correct for Brent to suggest that it has any right to instruct the association to attain a court order for possession. I hope that housing authorities will take note of these observations, and that these statements will not be repeated in future.

Well, quite.

EU Workers and housing eligibility

Published
by
NL
on 21 December 2008
in Housing law
. 0 Comments

Barry v London Borough of Southwark [2008] EWCA Civ 1440 concerned an EEA national’s eligibility for social housing, via a Part VII application.

EEA ‘workers’ are eligible for housing assistance as they are not persons subject to immigration control for the purposes of s.185(1) Housing Act 1996 and Reg 6 of the Allocation of Housing and Homelessness (Eligibility) (England) Regulations. The definition of “worker” in reg 6(1) of the Immigration (European Economic Area) Regulations (”the EEA regulations”) applies.

Mr Barry contened that his case fell within reg 6(2)(b)(ii) of the EEA regulations:

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if …(b)he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and…(ii) he has been unemployed for no more than six months…

EC Directive 2004/38 indicates that the status of worker is retained for 6 months after becoming involuntarily unemployed.

A LB Southwark review officer had decided on s.202 review that a period of two weeks in July 2006 that Mr Barry spent working as a steward at the Wimbledon Championships, which was the only employment in the relevant 6 month period did not qualify him for worker status.

Your role as a steward was a finite period of employment, which could not have extended past the two weeks of the championship. This is casual and seasonal work. Every year, Wimbledon runs for a period of two weeks and employs people in various jobs. This work is not effective and genuine, but instead is marginal and ancillary.

The review officer’s decision was upheld on s.204 appeal to Lambeth County Court, where HHJ Welchman found whether in was employment or not was a matter of fact, and the decision was not perverse. Mr Barry appealed to the Court of Appeal.

Mr Barry suffered a serious accident in December 2006 and has not been able to work since. Mr Barry had been working as a security guard between August 2005 and May 2006, so this was not the year required for Reg 6(2)(b)(i).

Southwark argued that the question whether Mr Barry was a worker was one of fact and that it was for the review officer to evaluate the facts. The review officer committed no error of law. The period spent at the Wimbledon championships did not constitute relevant work. If it was work, it was not necessary to look at the earlier period. If the period spent at the Wimbledon championships was not work, the earlier period could not convert the period at the Wimbledon championships into work.

Mr Barry argued that:
1. Southwark had made an error of law in not addressing the work history as whole.
2. The term worker address a fundamental freedom under the Treaty and should not be applied restrictively.
3. Work history must not be excluded. It is necessary to look at work history to tell whether the work was ancillary or marginal. The freedom of movement provisions do not penalise those who have had a break in their employment.
4. The employment at Wimbledon alone was in any case sufficient to retain worker status.

Arden LJ’s lead judgment considers ECJ cases: D.M.Levin v Staatssecretaris van Justitie, Case 53/81; Lawrie-Blum v Land Baden-Wurttemberg, Case 66/85; to find:

that work will be subsidiary or ancillary if it is done pursuant to some other relationship between the parties which is not an employment relationship, as where a lodger performs some small task for his landlord as part of the terms of his tenancy. The duration of the employment is, however, a factor to be taken into account.

But duration is not a conclusive factor.

For this reason, there is good reason to consider past work history. If it was limited to the 6 month period, any relevant work would necessarily be of short - less than 6 months - duration. It seems impossible to say that someone who had been in continuous employment right up to the commencement of the six month period and then for the next day in the period was not a worker. Or there may be a series of short term employments, e.g. as a locum. Mr Barry’s previous employment as a security guard showed a number of short term contracts.

Mr Barry’s work at Wimbledon was of economic value - if he hadn’t done it, Wimbledon would have employed someone else. It was not marginal because he was paid a not insignificant sum.

V.J.M. Raulin v Minister van Onderwijs en Wetenschappen Case C-357/89 states that duration of work is a finding of fact, but also supports taking the previous wok history into account.

The review officer had failed to consider the previous work history and was wrong on the whether the Wimbledon work qualified Mr Berry as a worker. Decision set aside. Southwark had issued a respondent’s notice with two further grounds:

The first ground is that, even if the review officer was wrong to hold, as he did, that Mr Barry was not a “worker” for the period of two weeks spent at the Wimbledon championships, the review officer was nonetheless entitled to treat Mr Barry as unemployed for more than six months, because there was an earlier period which could be aggregated to the period of 5 1/2 months. Miss Bretherton submits that there is nothing in the regulations to require periods of unemployment (if more than one) to be consecutive. I reject this point. Hers is a possible meaning of the language read literally but it would give reg 6(2)(b)(ii) a capricious effect according to the length of time a person had been in employment. On the true interpretation of reg 6, the only relevant period of six months is that immediately before the relevant date, which in this case is the date of Mr Barry’s accident. The second ground in the respondent’s notice is that the periods during which Mr Barry was in receipt of Jobseeker’s Allowance have to be excluded. I reject this argument also. The question whether a person is a “worker” is to be determined by reference to the principles laid down by the Court of Justice set out above, which exclusively define a worker (see, for example, Brown v Secretary of State for Scotland Case 197/86 at [22]). There is no provision that he is to be deprived of that status because he was also receiving Jobseeker’s Allowance,

Appeal allowed by all three judgments.

Expanding the Public Law defence, a bit

Published
by
NL
on 21 December 2008
in Housing law
. 4 Comments

What Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57 actually means for a public law defence to possession claims, particularly summary possession, was the subject of London Borough of Hillingdon v Collins & Another [2008] EWHC 3016 (Admin). This is what was to have been a CMC in the Administrative Court, but turned, by the nature of circumstances, into a consideration of the scope and boundaries of the post Doherty defence. As we’ve previously noted, the House of Lords in Doherty did little to actually make things clear, so Hillingdon v Collins is an important judgment.

The case involved possession of caravan sites occupied by travellers on the basis of (minor) rent arrears and allegations of harassment and ASB, following service of Notices to Quit. The defendants filed defences, giving as grounds a mix of reasonableness issues for eviction, Art 8 rights being engaged, the Court to assess LBH’s reasons for seeking eviction under Art 8, disproportionality, denial of accusations of ASB, and incompatibility of summary proceedings.

The proceedings were transferred to the Administrative Court and stayed pending the appeal in Smith (On Behalf of the Gypsy Council) v Buckland [2007] EWCA Civ 1318. Following Doherty, the Defendants sought to amemd the Defence and Counterclaim to the following grounds, dropping the incompatibility point:

(a) Smith v Buckland is not binding with regard to Article 1 of the First Protocol

(b) Those rights were engaged when the Notices to Quit were issued and in these proceedings

(c) LBH , as a public authority, was required to act proportionately and the Court had to consider if a fair balance was struck;

(d) Notwithstanding the decision in Smith v Buckland the lack of an ability on the part of the Defendants to challenge the factual basis for a possession order is incompatible with Article 1 of the First Protocol

(e) The difference in treatment between dwellers on sites for gypsies and dwellers on other sites was discriminatory

(f) It was for LBH to evaluate the effects of the taking of proceedings, and the lack of alternative provision, and the Court should consider whether it had done so.

Judge Gilbert QC notes that these proceedings post-date the introduction of a consideration of reasonableness in making a decision whether to suspend a possession order made under the Caravan Sites Act 1968 (as amended by Housing Act 2004 in response to Connors). However, there is no option but to make the Order, until the HRA 2008 provisions come into force. Factual considerations can be addressed in the context of reasonableness in a decision to suspend or not, but not otherwise. And so, to Doherty…

Judge Gilbert then embarks on a consideration of Kay, Buckland and Doherty, quoting at length. From Doherty, he quotes extensively from the speeches of Lord Hope and Lord Walker. In Lord Hope’s speech, para 57 in particular is noted as introducing an additional element to the post Kay ‘gateway b’ public law challenge:

It will be for the judge to resolve any dispute that he needs to resolve about the facts and, having done so, to determine whether the decision to terminate the appellant’s licence on the grounds stated in its particulars of claim, and having regard to the length of time that the appellant and his family have resided on the site, was reasonable [Doherty para 57].

Lord Walker’s speech, cited at length, is taken to show:

(a) His speech, and the reasons for his sense of unease, bears out the point that the effect of Kay and of Lord Hope’s application of it in Doherty is not to enable scrutiny of LBH’s decision to obtain possession in the context of ECHR/Article 8;

(b) He confirms that the Kay gateway (b) test has broadened so that it narrows (without closing) the gap between HRA grounds and traditional judicial review grounds.

(c) He draws attention to the wisdom of having such a case heard in the County Court.

Judge Gilbert QC’s conclusions are that:

54 I consider that the effect of the speeches in Doherty is to widen the scope of the enquiry that may be made into decision making by an authority. I do not consider that the effect of the amendment of section 4 in 2005 undercuts the points of principle which are established in Doherty but I do consider that , as per Smith v Buckland, the fact that Article 8 can operate at the stage of considering whether or not to evict, still gives it effect within the domestic law framework when taken as a whole, as per Smith v Buckland. However I also consider that in the light of Doherty the observations in Smith v Buckland that the circumstances where such a defence can be made out as wholly exceptional have been overtaken by subsequent authority. They were justified on the basis of the previous Kay test, but not on the wider one which now encompasses a broader consideration of reasonableness.

55 I also consider that the test is no longer whether the claim on public law grounds is ” seriously arguable.” It is now , as per Doherty at paragraph 55, whether the decision was reasonable, in the sense of whether no reasonable person would think that recovering possession was justifiable.

56 I also consider in the light of Lord Hope’s speech that a judge, while he must eschew simply substituting his own judgement for that of the local authority, must grapple with whether it had material before it, and whether the decision was reasonable. He is not bound to consider the matter on paper, but has a discretion as to how he should conduct the hearing, within the limits set by Lord Hope’s speech. I draw attention also to paragraph 54 of Lord Hope’s speech, and the importance of the claimant authority justifying its decision to seek possession, and to his reference to Lord Brown’s concerns..

57. That approach has other practical effects:

(a) it will help the judge when he gets to the stage of considering whether or not to suspend possession. As already noted, at that stage he will have to weigh the case in favour of suspension against the case for it. Of course the fact that LBH will have a right to possession is a matter which must attract weight, but the degree of weight depends on many other factors, and since that is the relevant stage at which to address Article 8 issues, then proportionality will be of significance. An order for possession sought because an occupier is one month behind with the rent is a far less powerful one than one where the arrears have amassed over six months. An occupier who has been engaged in one drunken act of disorder during a row with his neighbour may be regarded as much less culpable than one who has inflicted serious physical harm and engaged in numerous threats. I do not intend to set out a prescriptive list, as there is a wide variation of relevant circumstances, and a wide variation of potential weight that can be ascribed.

(b) I regard it as artificial to have one judge address whether the authority acted reasonably when considering the wider Kay approach, and another one then addressing that issue again, or at least a closely related issue, at the suspension stage. I follow Lord Walker’s reluctance to see an Administrative Court judge having to hear oral evidence in a forum unsuited to it. There is no better tribunal, nor one more experienced in dealing with disputes of this kind in housing cases, than an experienced circuit judge sitting in the county court. I express the view that this matter should be heard by a circuit judge with experience of possession disputes.

The matter was remitted to the County Court, to be heard by a CJ with possession experience and directions were given for disclosure and witness evidence.

So Judge Gibert QC takes Doherty as confirming that a public law defence (on JR grounds) and a human rights defence have not been fused, so that consideration of the LA’s decision is not a scrutiny in the context of Art 8 (or other Article). The defence has clearly been taken here as extending to issues of fact in assessing whether the decision to bring proceedings was reasonable (in the sense that no reasonable person would consider it justified, not Wednesbury grounds). The proper venue is the County Court, but we knew that - although the direction for a CJ to hear it is interesting.

This is not a surprising version of Doherty, but it is, I think, quite a conservative one. Even in Lord Hope’s speech, here taken as the lead one, there are suggestions that proportionality is at least akin to a JR ground. But Judge Gilbert QC keeps a consideration of proportionality firmly out of a ‘gateway b’ public law defence, in favour of a quasi new ground of reasonableness defined as ‘a decision that no reasonable person would consider justified’.

Discretionary Housing Payments

Published
by
J
on 20 December 2008
in Housing law
. 6 Comments

R (Gargett) v LB Lambeth [2008] EWCA Civ 1450; on appeal from [2008] EWHC 663 (Admin).

A Discretionary Housing Payment (DHP) is a discretionary payment made by a local housing authority to a person who is (a) in receipt of housing benefit or council tax benefit;  (b) considered by the authority to be in need of “further assistance” with “housing costs” and (c) who applies for a DHP.

There is a fixed limit which any local housing authority can spend on DHPs in any given year and that limit cannot be exceeded.  See s.69 Child Support, Pensions and Social Security Act 2000 and the Discretionary Financial Assistance Regulations 2001.

Ms Gargett is a 24 year old single mother and an assured tenant of the St Martin’s Community Partnership in Tulse Hill, London.

In 2004, when her tenancy started, her weekly rent was £82.57. It had increased over time and, at the date of the appeal, stood at £99.33. Her rent was paid largely - but not entirely - by housing benefit. In particular, the rental increases were not brought to the attention of the housing benefit authority. As a result, Ms Gargett fell into rent arrears of c.£3,800. By the time that the proceedings were issued, Ms Gargett had managed to regularise her housing benefit position and was in receipt of full housing benefit which covered the whole of the rent.

Ms Gargett applied for a DHP from the housing benefit authority to cover the arrears. The local housing authority (LB Lambeth) declined to make any payment. They contended that they had no power to make the payment because, as Ms Gargett was now in receipt of full housing benefit she could not need “futher assistance” with housing costs. In their view, the DHP regime worked to “top up” existing payments, not deal with historic problems. This argument was successful in the High Court.

Ms Gargett appealed - successfully - to the Court of Appeal. There was no such limit on the powers of the local housing authority. A DHP could lawfully be made in respect of previously accrued rent arrears and the council had erred in concluding that it had no power to make the payments requested. The decision was quashed and the matter remitted for reconsideration by the council.

The Court of Appeal plainly struggled with the substantive law in this case. The Regulations were confusing and far from easy to follow. Wall LJ was particularly unhappy with this. Whilst not wanting to pre-judge or influence the decision that Lambeth would now make in respect of the application, he made clear that:

… the appellant cannot be criticised for either ignorance or incomprehension of the statutory regime. In my view, it remains an aparently non-eradicable blemish on our operaton of the rule of law that the poorest and most disadvantaged in our society remain subject to regulations which are complex, obscure and, to many simply incomprehensible.

And so say all of us.

For those with a particular interest in housing law reform, see also the comments of Andrew Arden QC and Jan Luba QC here.


Vulnerability and incapacity benefit

Published
by
Dave
on 19 December 2008
in Housing law
. 0 Comments

Mangion v Lewisham LBC only appears on lawtel as an ex tempore judgment on 11.12.08 so if somebody out there has a transcript/better note of the Court of Appeal’s judgment, that would be helpful to understand this decision. What appears to have happened is that Ms Mongian had alcohol and back problems. Lewisham found her not to have a priority need because the back problems were not severe enough to affect her mobility, and her alcohol problems were a result of “behaviour of choice”. On review, she submitted medical evidence from an assessment for incapacity benefit to the effect that she had moderate depression and that her “mental health problems were caused by alcohol dependency, which caused severe disability”. The review officer upheld the decision. Ms Mangion argued that the fact that she had been assessed as having a severe disability was a relevant factor which should have been taken into account on review.

The CA held that the medical assessment was conducted for incapacity benefit and was not a finding that she had a severe mental disability (presumably for other purposes, ie an assessment of vulnerability). As the diagnosis was moderate depression, the review officer was entitled to find that this did not prevent her from getting accommodation herself. Her condition was “not debilitating and not a state that prevented her from doing day to day things”. The review officer had correctly address the criteria in s 189(1)(c) and was entitled to reach that conclusion. The message to advisors, then, seems to be take care as to the purpose of the medical assessment submitted to the authority in support of a Part VII/Part VI application/review.

Adverse possession and estoppel

Published
by
Dave
on 18 December 2008
in Housing law
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In St Pancras & Humanist HA v Leonard, the Court of Appeal held that, although Mr Leonard had possession of the relevant property (a garage), he nevertheless was estopped from claiming a right by adverse possession against the Claimant. The case is interesting largely because of the way the CA deployed estoppel to defeat the claim despite Mr Leonard having the relevant intention to possess.

In brief, the facts were that Mr Leonard (described variously as a “seasoned squatter” and “a coloniser – maybe a closet coloniser”) and colleagues occupied a couple of properties owned by LB Camden and which they were going to demolish in 1975. The properties had large (by London standards) gardens and the garage was located at the end of one of the gardens. It appears that Mr Leonard put a lock on the garage at this time, thus establishing the relevant intention and factual possession. Other residents did use the garage to store their stuff but this was held to be either with his permission or otherwise insufficient to destroy the requisite intention. The properties were bought from Camden by a co-op in 1985, organised by residents, squatters and others, and subsequently ended up in the hands of the Claimant in 1999, which wanted to demolish the garage. Mr Leonard claimed an interest by adverse possession which would have amounted to an overriding interest (under the pre-2002 Act) against the Claimant. The problem for Mr Leonard was that minutes of the Co-op board, on which he sat, disclosed that, as the Recorder had put it, by his silence and going along with the proposals encouraged the co-op “to enter into negotiations with Camden on the basis that this garage would become part of the leasehold property that was being obtained in 1995, with the obvious consequence that it would be available communally.” This was the basis for the proprietary estoppel that was relied on by the Claimant. As such, there was a clear representation and detriment.

Mr Leonard’s argument was that he didn’t know the law on adverse possession and therefore was unaware of his possessory right in law to the garage at that time. The CA found that, although that was a correct statement of principle, it was irrelevant in this case because, on the facts, he did believe that he had exclusive possession of the garage, believed that right would continue after the co-op acquired the lease, and, despite those beliefs, encouraged the co-op to enter into negotiations for its purchase with Camden. Indeed, the Recorder had found that it was “quite extraordinary that any right-thinking person, believing that they had a right of the kind which Mr Leonard now says he believed he had, even if only to possession, would not have mentioned that. Those attending the meeting would have formed the same view and would have proceeded in the general belief that they were negotiating for a lease that would give them actual control and possession of the garage, according to the interest being created.” All of this seems quite sensible, but I’m left feeling a little uneasy by the decision because, if he didn’t know that he had an enforceable right, how could he sensibly encourage the co-op either way but maybe I’m just a little old-fashioned in a kind of Willmott v Barber way.