Housing law news and comment
The Supreme Court has refused permission to appeal in Birmingham City Council v Qasim et al (our notes on the Court of Appeal and county court decisions are here and here, respectively).
As our friends at the UKSC blog previously noted, it would be helpful if the Supreme Court would publish such information itself so that everyone would know of such decisions, rather than waiting for the information to trickle out.
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The Ministry of Justice response to the ‘Legal Aid: Refocusing on Priority Cases’ consultation is now out, with the MoJ’s final proposals [link to pdf]. Although the responses to the consultation appear to have been pretty universally negative, the MoJ is going ahead anyway.
The report announces that ‘We share the view of Lord Justice Jackson that legal aid should remain in important areas like housing and judicial review.’ However, it appears that in order to save legal aid it has now become necessary to destroy it, bit by bit. The headline changes are:
Improve the way that cases involving human rights or public interest are handled by transferring cases that depend on these issues to receive funding to a new committee for advice on their merits. This will help to ensure that legal aid is awarded to meritorious cases.
Ensure that cases granted legal aid on the basis that the proceedings will bring benefits to others have a realistic prospect of delivering such wider benefits.
Detect fraudulent legal aid applications earlier, by checking with the unfunded opponent to ensure that the applicant is financially eligible for legal aid, with safeguards for domestic violence or urgent cases.
Tighten the funding rules for granting legal aid for judicial review cases to ensure that funding is directed towards meritorious cases.
Restrict funding for low-value damages claims brought as part of a multi-party action. This will help to ensure that limited resources are available for higher-value cases, or cases brought by individuals.
Tighten access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, with safeguards for important human rights cases.
Ensure that where legal aid funds a community action, the legal aid contribution mirrors the proportion of the affected population who are actually eligible for legal aid.
Thankfully, some of the loopier proposals have been dropped. These included:
(a) balance disadvantages and benefits in assessing public interest; (b) invite members of the public and/or public sector body representatives on to the funding committee; (c) appoint the SCU director as the Chair of the new funding committee; (d) restrict legal aid for individual low value damages claims; (e) require additional reconsideration of merits in judicial review; and (f) withdraw solicitors’ delegated powers to self-grant judicial review funding in urgent cases.
But what is left is not going to make for happy reading. Family solicitors are already quaking at the idea that there will be a two week period where the opponent gets to make representations about whether the party applying is actually eligible for legal aid (although not domestic violence or child protection/abduction cases). Cue bitter battles over financial disclosure before funding is even granted. But this is just a pilot, with the aim of a roll out to all areas. It will not apply where the client is at imminent risk of losing their home.
On funding public interest cases, the test will now be:
(i) the case has the potential to produce real benefits for individuals other than the client (other than benefits to the public at large which normally flow from proceedings of the type in question);
and
(ii) the case is considered on its particular facts to be an appropriate case to realise those benefits.
On public interest and special cases:
We intend to proceed to establish a ‘special controls’ regime for individual cases or types of cases which differ from the mainstream of civil legal aid cases. These cases are: (a) Multi-Party Actions; (b) appeals to the Supreme Court; (c) cases with only ‘borderline’ prospects of success which rely on significant wider public interest or significant human rights issues in order to receive funding; and (d) cases where the costs might exceed £250,000 if they proceeded to a contested trial or final hearing (or for Court of Appeal cases, to the conclusion of that appeal stage).
There will be a new Special Controls Review Panel, with one or more members from consumer groups “The panel will not make the final decision about whether funding should or should not be granted. The panel will not have the power to make the final determination of any issues, other than the legal assessment of prospects of success.” – the final arbiter being the Director of the Special Cases Unit. What this appears to mean is that Which? will be assessing the prospects of success of that Supreme Court appeal you want to bring.
Multi Party Claims where for damages only will have to be above a threshold of £5,000 damages per client, rather than the current approach of aggregating the individual claims into a lump amount.
On judicial review, the presumption of funding where permission had been granted is to be removed, apparently because the LSC was upset about not being able to assess the merits of the case for themselves, where a High Court judge had already done it. The same test will now apply pre and post permission, although the LSC will ‘give weight’ to the grant of permission in carrying out the assessment.
The Funding Code will be ‘clarified’ so that funding for judicial review will only be granted where the client is seeking a material benefit for themselves or their family. Funding will not necessarily be withdrawn ‘in a case where the client secures a satisfactory outcome, but the general issue remains unresolved’, though.
The proposal to end use of delegated powers to fund urgent judicial review claims has been dropped, partly because the LSC eventually dug up some figures showing the success rate was the same for delegated powers and non-delegated powers cases, the clear implication being that the powers weren’t being abused.
All this is intended to on the statute books by April 2010…
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Lynch v Kirby, QBD, 28.1.10 before Nicola Davies QC sitting as a Deputy Judge is – according to Casetrack – in the process of being written up. I became aware of it as a (very) short note on the Garden Court bulletin last Monday. I doubt that it’ll set the legal world on fire as it appears to turn on its facts. Still…
It looks like a landlord agreed to let a room in a premises to a tenant if he (the tenancy) could obtain housing benefit. The tenant entered into occupation on 20.2.1997 and obtained HB some six weeks later, backdated to the start of the tenancy. The landlord contended that the tenancy did not actually start until HB was in payment. The tenant said that the tenancy commenced upon occupation.
Why was this important? Well, prior to 28.2.1997, if you wanted to grant an AST, you had to serve on the tenant a notice under s.20(2), Housing Act 1988 before the tenancy was entered into. For tenancies after 28.2.1997, this requirement was removed and the AST became the default model from which one opted-out. Hence the importance of establishing when the tenancy commenced.
The High Court held that the tenancy had been made on 20.2.1997 and, hence, was fully assured.
As ever, more details as soon as we have them.
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…. or something to that effect, is what I imagine HHJ Purle QC said when he got the papers in Pick (Trustee in bankruptcy of Sharon Sumpter) v Sharon Sumpter & George Sumpter, Chancery Division, 3.2.10 – Lawtel note only
The claimant, as trustee in bankruptcy of the respondents sought an order for possession and sale of what I presume was the family home. At trial, the judge granted a possession order and an order for sale. The order was, however, suspended on terms that the respondents pay the bankruptcy debt and costs, which the trial judge fixed at just over £25,000.
The trustee applied for a review of this order and, rather than the terms of suspension being quashed (which, frankly, is what should have happened), the period for payment was extended. P sought to appeal this order but, for reasons that the Lawtel note does not disclose, the appeal was stayed.
Some four years (!) later it appears that the appeal finally came on for hearing. HHJ Purle QC (sitting as a Deputy Judge of the High Court) allowed the appeal. The approach of the trial judge had been entirely wrong. He had treated the case as if it was a mortgage possession claim and given time to pay. This, in effect, frustrated both the possession order and order for sale and, in doing so, prejudiced the creditors.
In addition, there was no basis for fixing the total bankruptcy debt (and costs) at just over £25,000. The professional fees fell to be assessed after the conclusion of proceedings.
The judge should simply have made an order for possession and left the trustee to administer the sale and apply the proceeds to the discharge of the debt.
This is another one of those cases where you really wish there was a transcript. It looks like the right result in the end but by a rather circuitous route!
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Port of London Authority v Ashmore [2010] EWCA Civ 30 is a really odd decision by the Court of Appeal to the extent I had to read it through carefully twice to be sure I understood its effect. I am still not sure that I do.
You may remember that we reported on Mr Ashmore’s attempts to resists the Port of London Authority’s attempts to register their ownership of the bed of the River Thames on the ground that he had acquired title to it (well a part of it) by adverse possession where the judge at first instance found that he had established factual possession and an intention to possess.
Unfortunately that decision was taken by the judge the hearing of a preliminary issue. The order for a trial of a preliminary issue was made by consent. The issue being:
Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:
(a) the title to the sea or river bed or the foreshore has not been registered; and
(b) the vessel rests on the bed or the foreshore at low tide.
An agreed statement of assumed facts for the preliminary issue only was agreed and submitted to the judge.
Here things start to get odd. At the trial of the preliminary issue the Port of London conceded that title to the bed of a tidal river can (in principle at least) be acquired by adverse possession. That would seem, almost, to be a concession that the preliminary issue should be found in Mr Ashmore’s favour (indeed it would cease to be an issue). While it might be possible to find some very narrow difference between the preliminary issue as stated and the authority’s concession, they do not appear to have taken that position. As far as I can tell (and I am happy to be corrected) the authority agreed with the proposition to be tried, so the preliminary hearing would seem to be pointless.
Not to be deterred by this, the parties argued whether Mr Ashmore had in fact (based on the agreed assumed facts) established both factual possession and an intention to possess. The points taken are dealt with in my earlier post. Having found for Mr Ashmore on this issue, the judge was bound to answer the preliminary question in the affirmative. If, on the assumed facts, Mr Ashmore had established adverse possession, then it was clearly possible for someone to do that in principle because the judge found that someone had. The judge’s order included the following statement:
1. It is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to the river bed or the foreshore for the footprint of that vessel where:
(a) the title to the river bed or the foreshore has not been registered; and
(b) the vessel rests on the bed or the foreshore at low tide.
This isn’t quite the same wording as that used in the original order since it omits the phrase “or other area of tidal water”. But, strictly speaking, the judge’s narrower statement implies the more general one: if A is possible then surely one of A or B is possible.
The Port of London Authority decided to appeal this decision. Why they should do so given that they appear to accept the point in issue I do not know. They were given permission. At the hearing, counsel for the Port of London Authority explained that the authority conceded that there could be circumstances in which the owner of a vessel moored on a tidal river might acquire title by adverse possession to a part of the river bed or foreshore. What he wanted the Court of Appeal to do was to indicate in its judgment what circumstances those might be.
He suggested the following:
(1) An owner of a vessel that is moored on or over the bed of tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off at Mean High Water if released from its moorings.
(2) An owner of a vessel that is moored on or over the bed of non-tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off if released from its moorings where the waters were at their average depth during the preceding calendar year.
(3) The principles set out above do not prevent the owner of the vessel from showing by other acts that he was in possession of the land upon or over which the vessel was moored or which included such land.
Unsurprisingly the court refused to make a judgment in those terms. First because it did not think it appropriate to set down an arbitrary test for the acquiring of adverse possession to the river bed and second because principles (1) and (2) could not be applied to the case before it since the agreed statement of assumed facts did not give sufficient information to decide whether they did or did not apply.
For myself I would have refused the appeal on the basis that the order made by the judge on a preliminary issue had been conceded by the appellant. End of story.
Perhaps because of the peculiar nature of the case before it, the court decided it needed to do some peculiar reasoning as well. The court discerned in the trial judge’s decision a qualification to the declaration he made, namely that it was not intended by the judge to be made in general terms, but was confined to the agreed statement of assumed facts. The court appears to have thought it should not have been made in the general terms it was.
With the greatest respect to the Court of Appeal, who must have struggled with the peculiar way the case was presented before them, that must be a nonsense. If on specific facts a judge finds that X is the case, then it must be true as a completely general proposition that it is possible for X to be the case. The judge’s decision cannot be faulted for its generality which follows inevitably for his finding on the facts before him and the question he was asked to resolve.
The court decided that there was no useful purpose in deciding whether the judge’s decision on the facts before him was right. The court also felt that it could not, in allowing the appeal, qualify the order that the judge made by confining it to the agreed statement of assumed facts. There was nothing for it but to set aside that part (paragraph 1) of the judge’s order. Unfortunately there is no report of the rest of the order, so it is impossible for us to see what state the case is left in. Very nearly back to square one by the sounds of it.
Can anyone throw any light on how this muddle came about, or why the Court of Appeal felt compelled to make the very odd decision that they did?
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R(Bauer-Czarmonski) v Ealing LBC [2010] EWHC 130 (Admin) is a kind of a classic post-Ahmad decision in that, rather than being a challenge to the CBL Locata scheme as a whole, it relates to the way in which Mr Bauer-Czarnomski’s application was treated by Locata; that is to say, it concerns taking into account immaterial considerations. It is also notable because Mr Bauer-Czarnomski successfully represented himself.
Essentially, Mr Bauer-Czarnomski applied for an allocation in 2004. He was placed in Band D, the lowest band on the Locata scheme. His parents both have serious mental problems which necessitated him in giving 24 hour care to them. This had a damaging impact on his own health as was noted by his doctor in a medical report in 2006. Now, here’s where it gets interesting. Locata get its own medical report from, you guessed it, Dr Keen who did not see or communicate with Mr Bauer-Czarnomski. Dr Keen accepted the GP report but then went on to advise on priority, essentially saying that the current accommodation was adequate. As Collins J put it, the council were wrong to rely on that advice which was not a matter for Dr Keen who
“… appears to have approached it on the basis that the physical condition of the house and the fact that there was an independent bedroom was sufficient to mean that the conditions of the housing were not such as were affecting his health within the meaning of the policy. That, in my judgment, was manifestly wrong. Conditions must extend to the conditions involving those who are living at the house, the effect of their actions and so on.”
Perhaps taking account of the Shala decision, an opinion was sought from a psychiatric adviser who agreed with Dr Keen and went on to say that, in his view, there were other households in a more unpleasant situation. As Collins J again pointed out, that was not a matter for him to determine. The point was that Mr Bauer-Czarnomski’s physical and possibly mental health was being adversely affected by the conditions because of the disabilities of his parents. Collins J said that Band D was clearly wrong and quashed that decision, saying that he should have been placed in either Band B or C.
Mr Bauer-Czarnomski raised a further issue that reliance should not have been placed on the views of a doctor who had not contacted him and had no knowledge of his case beyond the written medical report. Collins J said that he did not think it was essential for the medical advisor to see the individual “… certainly if he does not dissent from the medical views given in the report that is presented”; suggesting that it may be if there is dissent. The problem was that Dr Keen and the psychiatric advisor went beyond their remit giving opinions on the appropriate band to put him in, which was a matter for the council – a fairly basic administrative error and not one which really should have come before the High Court.
Mr Bauer-Czarnomski got his costs with a warning from Collins J that they are not terribly generous for a litigant in person. Finally, Collins J said that he wouldn’t put his direction about appropriate band in an order “because if the Council do not take any notice of it, they will be in trouble”.
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R(Savage) v LB Hillingdon [2009] EWHC Admin 88 [not on Bailii yet, available on Lawtel].
Ms S applied to Hillingdon Council as homeless following a possession order on her private rented accommodation on grounds of rent areas. Hillingdon provided temporary accommodation then found she was homeless, eligible and in priority need, but intentionally homeless (it didn’t help that Hillingdon housing advice had previously told her to set up a direct debit for her rent). Ms S did not ask for a review and it was accepted that she was intentionally homeless.
Hillingdon’s s.184 letter quite rightly stated that Hillingdon had a duty to offer her ‘advice and assistance’ to find her own accommodation. Ms S contacted their housing options team. She was then told that she was not eligible for the finders fee scheme (in which the council provides the deposit/rent in advance on a private tenancy up to £1500) because she was intentionally homeless.
Ms S, via solicitors, first sought a late review – which was refused – then, once evicted from temporary accommodation and once social services had said that they would take her son but not accommodate her, and on a further refusal to provide fee finders assistance, she applied for JR of the refusal to consider her for the fee finders scheme. Interim relief included accommodation, continued on permission.
The Claimant argued that
i) the Council did not carry out any proper assessment of C’s housing needs in accordance with s.190(4) Housing Act 1996
ii) The Council failed to provide any or proper advice and assistance to C pursuant to s.190)2)(b) HA 1996
iii) The Council adopted a rigid approach or fettered its discretion with regard to the advice and assistance provided, including in regard to the fee finders scheme.
iv) the Council had failed to secure accommodation ‘for a reasonable period’, pursuant to s.190(2)(a) HA 1996.
Hillingdon’s argument was
i) the issues raised could have been raised on s.202 HA 1996 review, so JR was not appropriate
ii) excessive delay
iii) none of the Claimant’s argument were the case.
Held:
although there was no formal written assessment of housing needs, there didn’t have to be. Hillingdon has carried out the required assessment, even though it mostly pre-dated the s.184 decision. It was ‘wholly unrealistic’ to expect a wholly fresh assessment.
Advice and assistance did not have tone such as will ensure that suitable accommodation is available, s.192(2) HA 1996. S.206(1)(c) deals with the provision of accommodation under s.193 and does not qualify s.192. Advice and assistance may indeed not lead to accommodation. There may be litle advice and assistance that can be offered, but that little was offered here.
The Art. 8 argument advanced did not assist the claimant. Even when social services offered to take her son but not accommodate her, the claimant retained a choice – to remain homeless and keep the family together (!).
The Council, as shown by the s.184 letter, was well aware of the Claimant’s personal circumstances. It could not be said that they had not been taken into account.
On fettering of discretion, however, the fee finders scheme option was not considered flexibly. There was evidence that the Council had simply refused to consider her for the scheme due to the finding of intentional homelessness and advised her so. The initial decision was not reconsidered and the case was not discussed with a team leader, as set out in the Council’s policy, in the light of the Claimant’s circumstances. While the policy was not rigid in stating that the intentionally homeless would not usually be eligible for the scheme, the policy was applied as if it were rigid. In this respect the provision of advice and assistance under s.190(2)(b) was unlawful.
On the reasonable length of time to be provided for the claimant to find alternative accommodation, Conville v Richmond Upon Thames [2006] 1 WLR 2808 provides that it is for the Council to decide what is a reasonable opportunity. It is not a duty to provide long term accommodation and the efforts of the applicant to find accommodation are relevant. There was no evidence that the Council had applied a fixed period here, in view of the information it had about the Claimant. In fact the stated 28 days given had been far exceeded. The Claimant had had something like 8 months by the time she was evicted.
On the s.202 review issue, s.202(1)(b), raised by the Council, appears to relate to the existence or not of duties under s.184 and not with the discharge of those duties – in that case s.202(1)(f) would be otiose.
Further Conville had proceeded by Judicial review without any suggestion that s.202/s.204 was the appropriate route. However R (Ahmed) v Waltham Forest LBC [2001] EWHC Admin 540 appeared to find the opposite.
It was not necessary to decide in this case as the Council had accepted it would be helpful to have guidance on these statutory provisions and grant of permission had not been opposed for that reason. Further it was not clear that s.202(1)(b) would permit the determination of such issue on review and county court appeal.
Delay in bringing the claim did not pertain to the issue of advice and assistance – it was an on-going duty.
Overall, the Council’s failure to comply with its own policy on the fee finder scheme was unlawful and capable of remedy.
Hillingdon have amended the fee finders scheme policy in the interim. How is not stated.
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*Not really.
The current housing minister, who holds the current record for the number of times a housing minister’s name can be mentioned in a press release, has announced forthcoming legislation, in response to the Rugg report. More details here [link to PDF]. The announced headlines are as follows, then we’ll take a look at the substance.
Funding for a new housing hotline offering free help and advice for private tenants should things go wrong.
An online word-of-mouth directory of landlords similar to tripadviser or mumsnet. Consumer Focus is currently undertaking work to establish better ways for tenants to provide and access information about landlords’ track records.
A requirement for written tenancy agreements that will strengthen the hand of tenants should they face a dispute and ensure all tenants and landlords are clear of their rights and responsibilities.
Boosting the number of tenants protected under the most commonly used tenancy agreement. An increase of the short-term rental threshold to £100,000 a year will mean that many shared households, most often those of students or seasonal workers, will have their rights strengthened and protected by legislation should they face a dispute.
A National Register for Landlords to help tenants make basic checks on their prospective landlords. Councils will be able to identify local landlords more easily, making enforcement of letting rules easier, and registered landlords will gain access to the latest advice and information on what their role entails and how best to fulfil their responsibilities
Better regulation of letting and managing agents, which will help tackle the rogue agents who can drag the reputation of the Private Rented Sector down. Full legislation will drive out the worst practices such as wrongful eviction, raise standards and provide greater protection for both tenants and landlords in cases of dispute.
Work is also currently underway with councils across England to encourage best practice in taking a more business-friendly approach to working with the best landlords and agents in their area. Creating Local Letting Agencies, where councils and good landlords work together to help local people find better-quality homes in the private rented sector will help to effectively side-line the cowboys across the country.
So, clear substance is:
The pure wind/smoke/mirrors are:
So, some potentially good bits, even surprisingly so, but also some airy nonsense. Now let us see whether this makes the statute books.
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Bihari v House Trader (UK ) Limited. 14 January 2010, Central London County Court
While we wait for the forthcoming High Court and Court of Appeal decisions in tenancy deposit cases, here is a tenancy deposit appeal, but, alas, only to a Circuit Judge, so not binding.
Mr B rented a two bed property from September 2006 and paid the deposit of £850.00 in respect of that AST in September 2006. The AST was renewed in September 2007 and the landlord/agent House Trader (UK) Limited did not protect the deposit after renewing the tenancy. The landlord rejected Mr B’s representations that it should be protected and the claim came to Uxbridge County Court. At first instance, the District Judge accepted the landlord’s argument that s.212-214 Housing Act 2004 did not apply to renewed tenancies where the deposit had initally been paid before April 2007.
HHJ Faber at Central London County Court allowed the tenant’s appeal, apparently on the basis that there was a deposit paid in relation to the premises and there was a post April 2007 tenancy agreement stating that a deposit had been paid in respect of that tenancy. The landlord was ordered to pay £3400, being the deposit and 3 x penalty.
Mr B was not legally represented, the appeal being conducted with help from a housing support worker, citing previous circuit Judge decisions in Saad v Hogan, Brentford County Court 16 February 2009, and Coutinho v Atkinson, April 2009, Clerkenwell & Shoreditch County Court. Good work there, and thanks to Diana Ambrusne-Szoke for the details.
Now we wait eagerly to see what a higher court or two makes of the issues.
[For all tenancy deposit case posts click here]
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Shersby v Grenehurst Park Residents Co Ltd LRX/142/2007 Upper Tribunal (Lands Chamber)
The appellant held a lease of a flat in a former mansion house. The wider estate comprised 17 such flats and a number of freehold houses and mews cottages. In total there were 40 residential units. All the units were obliged to contribute to the costs of repairing the main structure of the mansion house but, for the first five years of the lease, the service charge was capped by virtue of an agreement between the developer and the tenants.
It subsequently became clear that the cap could not be maintained as it was not sufficient to allow for the collection of any reserves. The freeholder house owners were not happy with this and pointed to the apparent unfairness of obliging them to repair not just their own homes but also the mansion.
The respondent – as freeholder and manager under the leases – was minded to move towards a scheme whereby the leaseholders would pay increased service charges. The lease did provide for the service charge percentages to be varied and the issue was whether or not the respondent had lawfully done so.
The appellant contended that it had not done so. In particular, he argued that the obligation to contribute towards the mansion was a collective obligation on both the leaseholders and freeholders and that the lease made no provision for dividing costs into separate “pots”. There were also sound policy reasons against construing a generous power of alteration to the respondent, if only because leaseholder were entitled to certainty regarding their proportion of the overall expenses. In addition, a subsidiary issue arose as to payment of insurance premiums.
The Upper Tribunal (Lands Chamber) dismissed the appeal. The lease entitled the respondent to vary the percentages payable if “in the opinion of the Manager” it was appropriate to do so. This had to be a genuine and bona fide opinion. The task of the Tribunal was to determine whether the respondent reached a lawful and reasonable decision. It was not the task of the Tribunal to substitute its own view but to ensure that the decision taken as one within the range of reasonable decisions.
The respondent took legal advice on the issue and advice from a surveyor. It gave detailed and careful consideration to the matter and came to a clear view. It was a bona fide decision. The fact that a different decision was possible was immaterial.
The insurance premiums had been paid between 1997 and 2004 and, in addition, had not been challenged at the time, whether in correspondence or in previous LVT proceedings between the parties. The charges had been admitted within the meaning of s.27A(4), Landlord and Tenant Act 1985 and were not capable of challenge in the LVT. In addition, premiums since 2004 were payable as charged.
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