Carrots and sticks – travellers’ sites

Published by NL on 01/09/2010 in FLW article, Housing law - All, Licences and occupiers and Regulation and planning. 1 Comment Tags: , , , .

News from Mr Pickles and the DCLG

Item 1. The Government is to bring s.318 Housing and Regeneration Act 2008 into force, finally according travellers on authorised sites the same security as those who come under the Mobile Homes Act. Hurrah.

Item 2. Planning circulars regarding construction of authorised travellers sites are being scrapped. Apparently because Councils complained about being forced to build on countryside and undertake compulsory purchase. Actual examples of either are welcome if anyone has come across them – we’d be interested.

Item 3. The regional strategies have already gone.

Item 4. ‘Plans for further powers for councils to combat unauthorised development’. Awaited…

Item 5. ‘New Homes Bonus Scheme’ to be extended to travellers’ sites, so councils get financial benefits for building authorised sites ‘where they are needed’. But what happened to the frozen Gypsy and Traveller site grant budget (or what was left of it)? That form of direct payment to Councils to develop sites has vanished.

Localism – it’s been tried before and didn’t work in this context. I’m not holding my breath for the sudden appearance of much needed authorised sites.

Meanwhile, Birmingham is worried about the Pope and trespassing Travellers. Don’t go near Birmingham without a ‘Pilgrim Pass’ on 19 September, apparently.

There is an argument, although not one vocally espoused by NL, that visiting Birmingham on that or indeed any other date would be penance enough to both qualify one as a pilgrim and to have 5 or 6 venial sins and possibly a mortal one wiped off the slate. But right now all I really want to do is pop Richard Dawkins into a two bed towable and head up the M6…

Fee hike for appeals from the LVT

Published by Francis Davey on 01/09/2010 in Leasehold and shared ownership and Uncategorized. 0 Comments

The ministry of justice has just published its response [PDF] to its consultation on fees for the Lands Tribunal — now of course the Upper Tribunal (Lands Chamber).

This is bad news if you are an appellant. The fee for seeking permission to appeal from the Lands Tribunal (i.e. if it was not given by the LVT) goes up from £40 to £200; the fee for lodging the appeal from £50 to £250 and while the hearing fee remains at 2% of the amount determined by the tribunal, the minimum and maximum fees rise from £100-£5,000 to £250-£15,000.

The reason given for this huge rise is that the the tribunals service aims to recover 50% of its costs from fees. That was achieved in 1996 when fees were last set, but the percentage contribution of fees has fallen to only 20%.

Nevertheless the rise amounts to a 400% rise in fees (albeit a smaller rise in applicable thresholds) over a period when inflation amounted to less than 50%. In real terms it is now much more expensive to bring a claim in the LVT than it was back in 1996.

It is really disappointing to see LVT users so badly served by this. Successive governments have created a regime of leasehold law of mind-numbing complexity and given most (but not all) of it to statutory tribunals which are often unable to deal with a dispute in the way a court would — for example because of lack of jurisdiction or case management powers — but expect individuals who may have little or no available cash to make use of the system without even a statutory power to make a proper award of costs (and thus permit a reasonable CFA regime).

RPT appeal fees also go up.

LSC: goalposts aren’t moved, just very bendy

Published by NL on 01/09/2010 in Various (non-housing). 2 Comments Tags: , , .

Sorry. After a moment when it looked like we might get back to housing law, the LSC has interrupted again. And it is almost as if the LSC reads NL!

Following our post here on the LSC’s statement in version 2 of its FAQ for the verification exercise on ‘not being able to do the number of matter starts bid for’ and which amounted to “Oops, have you overbid? Come here, you silly, give us a hug and we’ll make it alright by dropping your requirements”, the LSC has been fiddling with its FAQs again.

The answer to Question 3.2 in version 6(!) of the FAQ, released today (1 September) now reads as follows (in bright red):

3.2 I am concerned that I will not be able to deliver all the matter starts that I have been allocated, what should I do?
You will be required to deliver both the volume and breadth of services for which you have successfully tendered and been allocated matter starts in accordance with your bid and ranking (if applicable to your tender). However, as part of the verification process the LSC is giving successful applicants who are concerned that they will not be able to deliver the volume allocated to them an opportunity to review their allocation and request a reduction. Where such requests are received we will consider the implications for the procurement area with a view to reallocating any surplus matter starts to other providers in accordance with the allocation process set out in the IFA (answer updated 1 September 2010).

How to explain this change? Well, the LSC says:

We have today published an updated version of our verification FAQ. We have taken the opportunity to correct an answer where an incorrect earlier version had been uploaded in response to question 3.2.

Hmm. We should note that there was another version of the FAQ in the interim, v.5, in which the same answer to 3.2 was given as in v.2 (No, I have no idea what happened to v.3 or 4. They never appeared for public consumption, but whatever horrible errors v.4 contained, the answer to 3.2 apparently wasn’t considered to be one of them.) So that is two (public) earlier ‘incorrect versions’. We should also note that this is far from being a reversion to the answer given in v.1 (which was in effect “do the matter starts you have been allocated or else”).

I can only assume, being a tad cynical, that this is an attempt to avoid a challenge of the kind hypothesised in my earlier post (or indeed via procurement regs.). The practical effect is the same. The LSC can/will drop your required matter starts if you don’t think you can do them, but now hedged behind a presumption that you will do the matter starts and a request/considered response process on the part of the LSC.

But let us say a chunk of matter starts are ‘returned’ to the LSC in this way, what happens? The LSC say they will have a ‘view to reallocating surplus matter starts to other providers’, but in the next breath, at 3.3, we find:

3.3 Can I ask for my allocation of New Matter starts to be increased?
For the avoidance of doubt, there will be no increase to your awarded allocation of matter starts as a result of this exercise other than where receiving your full allocation was dependent on you recruiting for a post that was vacant at the time of your tender and you have done this.

‘There will be no increase to your awarded allocation of matter starts as a result of this exercise’ would appear to rule out the reallocation of ‘surplus’ starts to those who have already had an award. So, three options:
a) The LSC is quite simply terminally confused about what the hell it is doing
b) The LSC will award ‘surplus’ matter starts to those who already have a contract regardless of 3.3
c) The LSC will offer contracts of ‘surplus’ matter starts to bidders who did not get a contract award in the first place.

Frankly, my money is on a). I suspect b) would still be grist to a public law challenge of one form or another, as previously discussed. But c) is an intriguing proposition…

Allocations: A whiff of reform

Published by Dave on 01/09/2010 in Allocation and FLW article. 3 Comments

And now for a housing-related post …

Anybody reading the Sunday Times will have seen Grant Schapps talking about an allocations Consultation Paper that CLG are preparing.  Apparently, this will propose giving local authorities the power to set up their own allocations policies with their own priorities, allowing local people priority over those nasty foreigners (other than those nice EEA nationals to whom we owe Treaty obligations, although that was on the inside page of the Sunday Times).  It was a joyous reminder of Royston Vasey speak – this is a local town for local people; “Welcome to Royston Vasey – You’ll never leave” (for lovers of the League of Gentlemen).  Now, don’t get me wrong, I’m all for law reform on allocations but anybody who has read the Cullingworth Committee report from 1969 will know that localism may not be all that it is cracked up to be and, anyway, don’t we have other equalities obligations etc now.  By way of preface to that CP, the National Housing Federation have issued their own discussion document (hat tip to AM for this link) which broadly proposes greater flexibility in the allocations process.

My problem with all this chat and very clever people seeking to rethink allocations is that I thought it was unnecessary as the 2009 Code of Guidance and impact statement (on which we have commented previously) made clear.  We already have localism, mobility, flexibility, a form of the big society consultation about allocations, etc etc.  I readily admit to being not that clever so can somebody tell me what’s going on – it really is perplexing.

The CLP challenge considered.

Published by NL on 26/08/2010 in Housing law - All and Various (non-housing). 8 Comments Tags: , .

[Edit 27/08/10 An early version of this post said that the JR had been given permission. This was wrong. The hearing was actually adjourned to 8 September without permission having formally been given. Apologies for my error. I've edited the post to correct this.]

[Edit 2. I have been contacted by CLP to ask me to say that CLP will not be commenting while the case is ongoing, as it would not be proper for them to do so. They also ask that people do not contact CLP directly about the case in the meantime.]

So, what actually happened in the hearing of Community Legal Partnership’s application for judicial review? I’ve been thinking about the report in the Gazette and what was at issue.

Background
CLP put in a Social Welfare Law tender bid, as they operated in all social welfare categories. At the time of awards of contracts (or provisional acceptance of bids…) CLP did not get a contract of any size. It became clear that CLP had been given one point less in the scoring process than the small number of successful SWL bids in the Birmingham area. More on this one point later.

CLP appealed. However, the LSC insists that appeals could take up to a month to be considered. In terms of planning for the October start date, let alone retaining staff, a very difficult position.

JR
CLP issued a Judicial Review claim, initially in the Birmingham Administrative Court, After a preliminary hearing, the application was transferred to London for urgent hearing on 26 August.

The claim is apparently on the principle ground of the irrationality of the tender scoring criteria.

I should also mention that on 25 August, the LSC informed CLP that their appeal was unsuccessful.

In the absence of transcript , it appears that the hearing before Collins J became focussed on one particular ground, that of assessment and scoring by the LSC under the tender process.

The position of CLP was this: The one point difference in their ‘score’ was because the firm did not have 5 upper tribunal cases under welfare law. This was therefore the sole factor that meant that they did not have the same score as the few ‘top’ bidders awarded contracts.

CLP – via Counsel Marc Willers – argued that this was irrational, because they were being penalised for having been thoroughly successful in their lower tribunal cases – 90%, so that it was only if the Benefit Agency appealed that they would have an upper tribunal case. This had not happened 5 times. They were, in effect, being punished for being good and, indeed, efficient.

The LSC apparently argued that any challenge to the selection criteria and points process should have been made at a much earlier stage: “The tender invitation went out last year. If they wanted to argue about the criteria they should have done it then, not now.”

Of course, there were a lot of people very vocally unhappy about the criteria at the time. It is slightly surprising to find the LSC suggesting that it should have been judicially reviewed at that point, but hindsight is a powerful thing. It would also be likely to be the case that no-one on the bidding side expected that a one point mark on such a relatively minor issue would be the determinant between a full contract and no contract. The bidders generally lacked tender modelling software and the weeks to run permutations to assess these things.

In any event, Collins J was not impressed by the LSC’s argument, taking the view that:

Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.

On the specific ‘box ticking’ exercise – the points award for upper tribunal appeals – Collins J appear to accept CLP’s argument wholly:

How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal? [...]

If firms have a good record of ensuring they succeed in the lower tier tribunal, then appeals to the upper tribunal won’t be needed. To adopt a criteria which looks to the number of appeals to the upper tribunal and punishes those who do not need to appeal to it, because they are successful in the lower tier tribunal, is utterly absurd and totally irrational.

Thus, the LSC’s decision on this specific criteria was, on the face of it, totally irrational. On the significance of the rigid reliance on the criteria, Collins J observed to Counsel for the LSC:

There is ample evidence that this is a highly reputable and utterly efficient firm that is approved of by the judges, and you’re going to ruin it. You’re bringing it to an end as a result of this decision. How can you justify that? You can’t.

It was then put to the LSC whether a firm’s reputation could be taken into account or whether it was simply a ‘tick-box exercise’. The LSC responded that they had to comply with public contract law and could not exercise discretion.

Collins J set a date for the next hearing of 8 September. He warned the LSC to carefully consider its position as to fight and lose would set a precedent.

Collins J said:

I take the view that it’s not only arguable, but it would be difficult to dispute that the criteria relied on to mean this firm didn’t get a contract is totally irrational.

Comment
This is clearly a shot across the bows of the LSC in respect of this particular challenge, but – without benefit of transcript – what is going on here? My speculation follows.

Firstly – the specific criteria awarding an additional point for 5 upper tribunal cases is clearly in grave danger of being found to be irrational, for the very good reason that it potentially (and actually) penalises success. Even if the claim does not go to full hearing, this is now a clear and viable argument for others. So, I would anticipate that any provider that suffered on that specific point score would now be polishing up the pre-action protocol letters.

Secondly – and contrary to some suggestions I have seen elsewhere – this does not mean that Collins J is about to find the whole tender process to be unlawful. While the quoted comments about ‘tick box exercises’ and an ‘expectation that access to justice criteria will be used and discretion exercised’ suggest that the nature of the tender process tout court attracted Collins J’s ire, it is one hell of a leap from considering a specific assessment criteria to be (strongly) arguably irrational to finding the whole process flawed due to a lack of discretion.

One would have to say that the LSC might have a point if it asked what a reasonable process for assessing whether a bidder is ‘highly reputable’ and ‘approved of by the judges’ could possibly look like? And just how would it avoid endless challenges to any assessment of reputation?

So, if the claim did go to full hearing, my expectation would be for a specific finding of irrationality on the upper tribunal criteria but nothing broader. In this claim, at least.

But, of course, it cannot end there. The LSC are now between a very pointy rock and a buttock-squishingly hard place. To settle the JR would surely have to be to offer CLP a contract. But that would mean the exercise of a discretion that they have denied to themselves and denied to everyone else that they have. It would also leave them open to a challenge by any bidder that had suffered on the same criteria (and I know of at least one other). This is assuming that they have enough matter starts in their secret stash for this to happen without impacting the current ‘victors’ in the bidding. If not, then it is messy.

On the other hand, to continue to defend the claim is very clearly to risk having that specific criteria declared unlawful, which would mean – at the very least – having to withdraw and reassess all bids and contract offers in areas where this criteria was remotely a deciding factor. Which would mean practices who thought they had an award of matter starts seeing it vanish again for an undetermined period, as October draws ever nearer…

In any event, I would expect any provider affected by the ‘upper tribunal’ point score issue to be readying their challenge. I would also expect there to be much scouring of the point score system, in SWL but also in Family, for other areas where success and efficiency were effectively penalised in the scoring. The point has been clearly made.

August suddenly became very interesting.

One has to ask, though, why it falls on an individual firm to make this challenge and to take the risks that come with doing so. CLP are, of course, pursuing the challenge for themselves, not on behalf of the whole sector. The Law Society is pursuing a challenge in relation to the Family tender, but has been wholly silent on SWL. Given Collins J’s reported comments, can we expect anything at all from the Law Society?

But coming tomorrow, some actual housing related law. Honest.

“Irrational” Welfare tender newsflash

Published by NL on 26/08/2010 in Housing law - All and Various (non-housing). 1 Comment Tags: , .

Hot on the heels of the last post comes this news of a Judicial Review permission hearing on an application by friends of the blog, Community Law Partnership, against the LSC.

Choice quotes from Collins J

“I am bound to say this is a dreadful decision and on the face of it the approach [taken by the LSC] is totally irrational”

“How can it be rational to penalise a firm that takes fewer cases to the upper tribunal, when any decent firm will do its best to make sure it doesn’t have to appeal?”

“Those tendering are entitled to take the view that access to justice criteria will be taken into account and discretion used, rather than just box ticking.”

We were sort of hoping to be the first to break this news, but dammit, the Gazette had a journo actually at the hearing. Excellent (if interim) result for CLP. Full hearing set down for about a week and a half’s time.

Details and comment to come.

Of contracts, shifting goalposts and lawfulness

Published by NL on 25/08/2010 in Housing law - All and Various (non-housing). 8 Comments Tags: , , .

[Edit 01/09/2010. There has been a further change to the FAQ discussed in this post. See the new post here]

Bear with me. This is going to be a bumpy ride.

The LSC’s terms of tender for civil contracts stated

Paragraph 15.11: “For a tender to be complete, the Applicant Organisation must, prior to the deadline, submit a tender consisting of (1) a response to the PQQ and (2) a response to an ITT (including the Mandatory Form).”
Paragraph 15.13: “The Applicant Organisation must not amend or alter any document comprising part of the tender after the deadline”
Paragraph 15.37: “The Applicant Organisation agrees to keep any tender valid and capable of acceptance by the LSC up to the 14 October 2010 (Contract start date).”

Obviously, part of the tender was the number of matter starts bid for.

On 20th August 2010, the LSC published a Frequently Asked Questions (FAQ) document on its website about verification of Civil contracts. It included the following:

“[Q] I am concerned that I will not be able to deliver all the matter starts that I have been allocated, what should I do? “[A]Under the contract, you will be required to deliver both the volume and breadth of services for which you have tendered….” .

On 23 August 2010, the LSC published a revised FAQ document. At 3.2, in place of the answer above, this FAQ states:

“[A] If you are in any doubt as to whether you can deliver all your matter starts, please contact us through the message board and let us know how many you would like. We will then adjust your total. It is important that you receive the right allocation at the start of the contract.”

That unannounced change is a major shift in position. It also makes interesting reading next to the previously announced ‘verification exercise’, which was stated to be “aimed at ensuring providers can deliver on the new matter start numbers they have successfully bid for.”

But beyond that, what does this mean for the tender process? The tender rules on this point appear to be quite clear. Any tender (which included the number of matter starts bid for) must be kept valid up to 14 October 2010 and cannot be changed after the submission deadline.

The first version of the verification FAQ, from 20 August 2010, would appear to be in accord with this. Matter starts allocated in response to a tender must be delivered.

The second version appears to say that if a provider is having second thoughts about its ability to deliver the matter starts bid for and allocated under the tender process, the LSC will agree a reduced figure with them. This clearly means that the LSC are prepared to not only waive but actively assist firms who are, at the very least on the face of it, in breach of the tender rules. That this would be a breach of the tender rules is a position that the LSC has itself previously espoused – see the ‘verification exercise’ statement.

One can speculate about the reasons for this change in position. For example, so many firms were about to fail the verification exercise in addition to those not awarded contracts that the LSC would be left with such gaping holes in provision that it had to take steps to avoid this result. Alternatively, the number of providers making successful appeals outstripped the capability of the LSC’s (now admitted) secret stash of matter starts to provide reasonable contracts. Or a combination, of course.

But, perhaps more significantly, does this undermine the whole tender process to the point of a challenge?

Consider it this way. The number of matter starts bid for, set against the matter starts available for the procurement area was a factor in the award of contracts/matter start numbers, subject – perhaps – to some (unspecified) minimum number of providers per area (and I’m here going on assertions by the LSC in relation to Family contracts that there would be at least 5 providers per area) and also, of course, the number held back by the LSC in their secret stash. The other decider was point scores, but the point score required to be ‘successful’ was very clearly dependent on the number of matter starts bid for by the higher scorers.

So, as a hypothetical example – which probably has real life exemplars – you missed out on a contract because those with 1 point more put in bids which accounted for the whole of the available matter starts. Now, out of the blue and arguably in breach of its own tender conditions, the LSC is prepared to let those same providers reduce the number of matter starts they have been allocated, on the basis that they can’t fulfil the number bid for and/or awarded. But nothing is going to be done about contract awards.

Does this potentially invalidate the entire award process? If the award process was indeed a matter of awarding matter starts to the highest scoring bidders in relation to the numbers bid for, until the matter starts ran out (subject to secret stash), then I would consider it arguable that it did. Clearly, providers whose point scores were just below the ‘winners’ in such a scenario would have missed out of a contract on a false premise – that the winners could deliver what was bid for – and now the LSC seeks to unilaterally alter the terms of the tender without addressing the award of contracts. To me that sounds like a basis for challenge.

The Law Society’s Judicial Review of the Family tender rumbles on, but I would not be surprised at all if there weren’t other challenges on this basis emerging.

On the Naughty Step – drop the dead donkey redux

Published by NL on 19/08/2010 in Assured Shorthold tenancy, Housing law - All, Possession and Various (non-housing). 67 Comments Tags: .

There is very hot competition among the cast of this sorry episode for being placed on the step. This is also a story which has already been commented on by Tessa Shepperson of Landlord Law, who indeed played a small – and entirely virtuous – part. But Tessa is basically a nice, fair-minded person, and for that reason, her posts are entirely free of bile. I, on the other hand, am not necessarily nice, and rarely lacking in bile to spare.

For a taster of what is to come, here is the first foray of Suzy Butler into the media – the local paper. Note the ‘squatter’ motif, although the local paper does at least have the limited presence of mind to put the term in quote marks.

Then there is this:

Let us pause here to note that Ms Nobre was given an assured shorthold tenancy, paid what appears to be in the order of 6 months rent in advance and remained the tenant of the property, probably on a statutory periodic tenancy. Let us also note that, although facts are hard to discern in the fog of Ms Butler’s variable accounts of events, her father is reported to be a property developer and professional landlord.

GMTV returned to villify the tenant some more a day or so later. By this time, amazingly, Ms Butler isn’t in the tent anymore.

Unsurprisingly, the tenant gave up in the face of some serious media vilification and moved out. Naturally, Ms Butler had cameras on hand for her return.

So, who goes on the step?

Ms Butler is undoubtedly one of the dimmest of accidental landlords. Here, for example is a screen capture apparently from a BBC South East news item of what is apparently the ‘notice’ she served on the tenant (click for bigger).

defective notice screencap

And in fact, from documents that were shown in a BBC South East news programme on 10 August, it appears that she gave an ‘extended agreement’ to Ms Ombre on 25 May 2010, up to 5 August 2010. This suggests that the ‘notice’ above, dated 28 July was sent after a first missed rent payment in July and Ms Butler’s appearance, with a tent, in the local paper on 7 August stating that ‘she had to wait for two months missed rent to serve notice, which had been done the day before’ was immediately after a second missed rent payment on 6 August. Which makes the whole ‘tenant supposed to leave in April when Ms Butler returned’ story deeply suspect. Ms Butler is very welcome to clarify (as indeed is Ms Nobre).

But of course she is far from alone in saying “I can’t understand how I can have no right to enter the home I bought”, when it is not her home but a property she has let to someone else. Her petulant rage and self pity at actually having to obey the law are deeply unappealing, but again, hardly unusual. What is more unusual is that Ms Butler is not only prepared to court the media to implicitly announce to the world that her own stupidity means that it is unfair that the tenant is accorded legal rights against her, but has decided to actively campaign on the basis of the moral correctness of her own lazy ignorance. (Perhaps unsurprisingly, that Facebook page has apparently repeatedly deleted comments vaguely critical of Ms Butler’s stance on the basis that it is, well, against the law and she has behaved unlawfully – on which more below) [Edit 21/8. Someone had put a link to this post on that Facebook page. That has now been deleted by the page Admin].

In a final display of dimwittedness, Ms Butler and her supporters have announced they will be taking their campaign to Parliament, with her local MP – Mike Weatherly – but this is on 24 August, when Parliament is still in recess. Top lobbying work there. (Mr Weatherly can be contacted via here, should anyone feel he needs a spot of housing law explained to him).

And then there is GMTV, allegedly a news organisation, at least whose output is classed as such for the purposes of regulation. Their reporter repeatedly and utterly wrongly describes the tenant as a squatter, sympathises with Ms Butler when she says that the ‘squatter’ doesn’t answer the door to her when she goes to the house, apparently without notice, except once when she went with the police (showing their usual standards in L&T issues) and who then – with Ms Butler – turns up at the property unnannounced and demands to know why the tenant is still there. After standing by as the camera delightedly films Ms Butler petulantly ranting at the tenant inside the house, the reporter then demands to know when the tenant will leave.

And, frankly, that tent was so obviously put up for the camera that it screams out in full ‘Drop the dead donkey‘ bloodstained-cuddly-toy-abandoned-in-disaster-zone style.

In the follow up GMTV section, one anchor (Sally Smedley to a tee) asks, in tones of incredulity, ‘why can’t the landlord turn up with the police, or turn the electricity off, as so many viewers have emailed to say they should do this?’. When the barrister guest explains that this is a criminal offence, the other anchor, astonished, says ‘even though it is your house?’ (The barrister, Philip Rainey QC, is not as clear as could be wished for on the question about homelessness and council rehousing, to be honest, but then Tanfield Chambers aren’t noted for their expertise in homelessness. If only GMTV had asked about leasehold enfranchisement… But he otherwise does pretty well indeed in the face of some ridiculous posturing from the anchors).

So, this is a ‘news organisation’ that, on the sole basis of a (youngish blonde) dodgy amateur landlord’s flaky, unquestioned and unsupported story, is prepared to label a lawful tenant a ‘squatter’, doorstep the the tenant together with the landlord, comprising a breach of quiet enjoyment – at the very least – and demand that the tenant tell them when she will leave the property. All the while failing to give the tenant any chance to reply and talking over and cutting out her attempts to respond. The behaviour of the anchors, being also presumably directed and partially scripted, can also be laid at the door of the ‘news organisation’ rather than the only other conclusion – that they are personally spectacularly dim and ill informed, which is never a good look for a ‘journalist’. In short, this is a ‘news organisation’ that was prepared to expend its resources in support of a landlord’s attempt to force the departure of her tenant without getting a court order through the public vilification of the tenant. And that does not bother to carry out even the most cursory checks of a) the facts and b) the law before broadcasting – on two separate occasions – their utterly wrong story.

Naughty Step badgeFor that reason, however unattractive a figure Ms Butler may be – and just watch that scene of her shouting at the tenant while in the house from the first video again if you need reminding of how cynical her behaviour has been – it has to be GMTV that end up on the naughty step. Other media organisations swallowed Ms Butler’s ‘squatter’ line whole. Only GMTV actually went round themselves to harrass the tenant on camera and demand she explain why she was still there. Broadcasting Standards Commission, anyone?

And for today’s game of offences, what kind of claims can we arguably see made against Ms Butler and/or GMTV?

Against Ms Butler:
Breach of quiet enjoyment, obviously.
I’d throw in breach of Protection From Harassment Act – two or more occurrences of behaviour that D knew or a reasonable person would consider likely to harass. Butler had clearly on her own account been to the property shouting and demanding entrance on a number of occasions, then turns up with the police, then with a GMTV crew who record her shouting at length at the tenant.

Protection from Eviction Act? – I’d have a shot at that. Acts likely to interfere with peace or comfort of occupier – even just telling the media the address and that the property was ‘squatted’ could have been enough, but turning up with GMTV so that she and the reporter could have a go at the tenant for not leaving? Pretty certain. Then follows ‘knows or has reasonable cause to believe that conduct is likely to cause the occupier to give up occupation..’. Ms Butler has said this was why she went to the media – to ‘speed the process up’.

Housing Act 1988 s.27? I’m a bit less sure about this. How far can the GMTV and other media be held to have acting been at Butler’s instigation or on her behalf, or even directly in consequence of her acts?

Against GMTV? – over to you all…

[Thanks to some of the posters here for links to videos etc.]

[Edit 20 August: that last link to a thread at the MSE forums has been deleted by the admins. Not clear why. There are a lot of annoyed people at the MSE forums discussing that deletion of the thread. The suggestion is that the PR person running Ms Butler's Facebook campaign page objected to being identified. That would be Jeremy Dunmore "Founder and Managing Director of Ascender Group":

we are an innovator in outsourced business development and marketing services structured around an SGO model our aim is to build long term strategic relationships with our clients and deliver bottom line growth enabling us to grow and prosper alongside our customers [sic]

Here is their thoroughly professional blog. Been a bit quiet lately, lately being 2010.

The company website at www.ascendergroup.co.uk (as linked to from his twitter page and linkedin page) doesn’t exist, which is the kind of consummate attention to detail I look for in someone ‘interested in consulting offers and expertise requests’.]

[Edit 21/08/2010. I've filed a complaint with Ofcom on the GMTV reports - detail in the comments below. Any updates will be passed on].

Hospital or prison – your choice

Published by NL on 18/08/2010 in FLW case note, Housing law - All and Possession. 1 Comment

Boatwright v Boatwright [2010] EWCA Civ 877

Let us not get excited, this is a nothing of a case, but in these dog days of summer, where substantive case law is hard to come by, we have to take what we can get.

The Court of Appeal were confronted by a frankly bewildering application for permission by Mr Boatwright, who was facing an order committing him. This followed an application to enforce a penal notice on an order that he give vacant possession of the property he occupied to his ex-partner, Ms Boatwright (they were not married).

The history went something like this – although this was not the version Mr B presented to the Court – Mr & Ms B owned the property in joint names. Following their split, and Mr B remaining in occupation, Ms B issued a claim for a share of the property, including a claim for an order for sale. The shares of the property were not agreed and eventually the claim reached trial in October 2007. Mr B did not attend. An order was made that:

  • The property be sold, for a price recommended by the appointed agents
  • Mr B to deliver a key to Ms B’s solicitors immediately
  • Mr B to give possession of the property by 17 November 2007 – a month later
  • Mr B to remove his belongings and livestock – Ms B to do so if he failed
  • Once sale had taken place, division to be decided by the Court

Mr B didn’t deliver up a key, then or subsequently. He applied to have the order set aside and was represented by Counsel at the subsequent hearing. The order was upheld, save for the date to give up possession which was extended to April 2008. Mr B appealed, The appeal was dismissed by the Circuit Judge.

And then – nothing happened. Mr B remained were he was. There was no penal notice attached to the order. So, in March 2009 an order that Mr B give up possession by 21 April 2009 was made, this time with penal notice. For some reason, this wasn’t served on Mr B in time, so on 4 August 2009 a further order that Mr B give up possession on 31 August 2009, again with penal notice, was made.

Faced with a penal notice, Mr B… did nothing and stayed put. Finally an application was made for committal. The order was made and Mr B somehow sought permission to appeal to the Court of Appeal, enforcement being stayed in the meantime.

What, exactly, was the recalcitrant Mr B appealing? It is hard to tell – both for us and, it appears, for Stanley Burnton LJ and Arden LJ as well.

It appears that Mr B submitted that the order requiring him to give up possession had been made in October 2007 in his absence. He had omitted to mention to set-aside application, at which he was represented, or the failed appeal application.

he has had his day in court, indeed more than one day in court, and the order for possession has now been outstanding for an exceptionally long period.

Mr B also raised various reasons for not complying with the order, but:

We have heard Mr Boatwright’s excuses and justifications for not complying with this order. In my judgment none of them justify the stance he has taken. There may be difficulties in complying with it. He has to find some other accommodation but the local authority is under a duty to house him if he is homeless. There are animals on the property apparently but arrangements could be made for them to be looked after. Ultimately if necessary there would have to be application to an animal shelter or to the Royal Society for the Prevention of Cruelty to Animals for them to look after the animals. I would hope that Mrs Boatwright would be willing to take some responsibility for the animals insofar as they belong to her or she has a responsibility for them. But this order has to be complied with and at the moment no excuse has been given for Mr Boatwright’s not complying with it.

And then

Mr Boatwright does not want to give up vacant possession because he would like to buy the property himself using an equity release scheme. He has told us that that is difficult because he does not know the size of Mrs Boatwright’s share of the property. I do not accept, however, that he could not have made an offer to Mrs Boatwright by now or, assuming that offer was rejected, not have made an application to the court so that the court could determine that outstanding issue and decide the amount of the shares so that the matter could have been taken forward. There has been plenty of time for all that since 2007.

However, while Mr B’s appeal was going absolutely nowhere, the Court was prepared to give him a further four days to comply with the order and give vacant possession, rather than immediate committal – as a practical step, based more on mercy than merit. Mr B had an operation listed for 13 July, so he would be given to 12 July to give vacant possession. Arden LJ’s advice to Mr B was

that he should go to the local authority, have the key cut, give vacant possession within the time allowed and in that way he will also be able to have the surgery on his hand which he needs to have on the date fixed next week rather than be committed to prison.

I’m not so sure about the Court’s assumption that Mr B would be assisted as homeless by the LA, but there may well be reasons why he would be in priority need that aren’t apparent from the judgment. What is, to some degree, astonishing, is the time to which Mr B could stretch his non-compliance in the face of a penal notice, presumably on the apparent reluctance by the other party to actually enforce it. Mr B may not think so, but he was more than a little lucky in the opportunity to comply given to him by the Court of Appeal.

Arden LJ, though, wasn’t about to let Mr B leave without telling him that he was pretty much destroying the rule of law as a foundation of our society:

We have the privilege of living in a society that respects the rule of law, and that depends on everybody understanding that if the court makes an order, that order is to be complied with promptly and fully unless the court orders otherwise. Mr Boatwright must remind himself of that. This is one of the privileges of the society within which we live, and without it we would none of us be able to enjoy the happy standard of life that we do in comparison with other countries.

We have no knowledge of whether Mr B did actually gather up his livestock and go, or whether he continues to undermine our happy standard of life, possibly from prison.

Please do not adjust your set

Published by NL on 18/08/2010 in Various (non-housing). 0 Comments Tags: , .

Some behind the scenes updates – which had to be done – mean that the blog is going to look not entirely like its usual self for a few days (fonts and font size, some layout etc.), till I can get to grips with some coding oddities. Probably this weekend. I just thought you ought to know, because it is nothing to do with your browser or anything at your end.

I may take the opportunity to give it a bit of a face lift, if I get time. Was there anything about the old design that particularly annoyed people?