Not reasonable but suitable

Published
by
NL
on 2 July 2009
in Housing law
. 9 Comments

Not for the first time, I (and I suspect others) have been completely wrong-footed by Baroness Hale. It would be fair to say that the House of Lords judgment in the joined appeals in Birmingham v Ali and Moran v Manchester [2009] UKHL 36 has come as something of surprise. Unfortunately, its effects will be felt for a long time and it looks likely to initiate a whole new sub-category of litigation in homeless cases, the ‘are we there yet?’ claim. On the positive side, though, its effects on Women’s Refuges are helpful, largely removing the danger that a refuge place would be classed as accommodation in which it was reasonable to remain for homeless application purposes.

First the background on issues in the joined cases (and should you wish, our reports on Ali/Aweys and Moran in the Court of Appeal).

Birmingham v Ali (formerly Birmingham v Aweys) concerned Birmingham’s policy of leaving the homeless at home in the same property, once a duty under s.193(2) had been accepted, and placing them on the Part VI allocation scheme in Band B, where homeless in temporary accommodation were placed in Band A. In the High Court and the Court of Appeal, it was found that the duty to provide accommodation under s.193(2) Housing Act 1996, which must be ’suitable’ under s.206(1), meant that suitable accommodation had to be provided immediately or a within a reasonably short time. Both High Court and Court of Appeal found that accommodation in which it was not reasonable to expect the applicant to remain (the s.175(3) homelessness test) could not be suitable accommodation for the purposes of s.193. The Court of Appeal held that ’suitable’ had to be the same before and after the housing duty arose. Further, being placed on the allocation list was not satisfaction of the 193 duty. Yet further, Birmingham’s allocation policy which distinguished between the homeless at home and the homeless in temporary accommodation was unlawful as the distinction was irrational.

Moran v Manchester concerned Manchester’s finding that a women’s refuge was ‘accommodation in which it was reasonable to remain’ such that in losing her place at the refuge Ms Moran had made herself intentionally homeless. The Court of Appeal had found that a refuge a) was accommodation and b) was capable of being accommodation in which it was reasonable to remain depending on the facts. This did, of course, mean that women’s refuges were in danger of seizing up, as the women in the refuges would not, or not necessarily be classed as homeless.

In the House of Lords, at the Lords request, the cases were placed together, although heard months apart. The reason why becomes apparent. The sole opinion is from Baroness Hale, although in effect a joint opinion with Lord Neuberger.

The main issue in both cases is identified as the meaning of the the phrase ‘accommodation which it would be reasonable for him to continue to occupy’ (s.175(3)) and its links to s.191(1) on intentional homelessness. There are other issues on Birmingham’s appeal, which I’ll come to later.

Baroness Hale states that the phrase ‘would be reasonable for him to continue to occupy’ looks to the future as well as describing a current state. It is looking at occupation over time [para 36], where s.177(1) states simply ‘it is not reasonable’ to occupy property where there is a risk of violence. This is in accord with the Act’s orientation to those who are homeless or ‘threatened with homelessness’.

The definition of ‘reasonable to continue to occupy’ is therefore to be taken as meaning that someone can be homeless if they have accommodation which it is ‘not reasonable for her to continue to occupy for as long as she would occupy it if the local authority did not intervene’ [para 34].

This means that someone can be accepted as homeless ‘even though they can actually get by where they are for a little while longer’. [para 38]. ‘Not reasonable to continue to occupy’ doesn’t necessarily mean that the person cannot spend another night in the property - and if they can’t then the s.188 temporary accommodation duty would be triggered immediately and so into the s.193 duty.

However, as the authority can satisfy the full duty under s.193(2) by providing temporary accommodation (followed of course by provision of further accommodation) it is clear that accommodation which it may be unreasonable to occupy for a long period can nevertheless be reasonable to occupy for a short period. Accordingly:

there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty. [para 42]

The requirement that the accommodation arranged under s.188 or under s.193 (for temporary accommodation) be suitable means that it must be suitable for the period of occupation envisaged., What is suitable in the short term may not be suitable in the medium or longer term. [para 47]

So the same property in which it would not be reasonable for the homeless applicant to continue to remain under s.175(3) may be suitable for his/her continued occupation in discharge of s.188 or s.193(2) duties!

Moran v Manchester is thus disposed of. A women’s refuge will not be accommodation that it would be reasonable for the woman to occupy indefinitely, unless there are clear facts indicating that circumstances are otherwise. It would therefore fall under s.175(3) and she would be homeless as long as she stayed there. There is therefore no need to deal with the issue of whether the refuge was accommodation at all (Sidhu) or whether it was caught by the decision in Puhlhofer, as was the issue in the Court of Appeal, although the Court of Appeal was right that Sidhu did not survive Puhlhofer [paras 52-56].

On the Birmingham cases, the issue becomes at what point the accommodation could no longer be described as suitable for discharge of the s.193(2) duty and the local authority would therefore have to secure alternative accommodation under that duty. [para 48]

Baroness Hale, while acknowledging that ‘it may be’ that the Birmingham cases meant the Council was on breach of its duty at some point, says that this is a question that turns on the particular facts in a case. As the basis on which the Birmingham cases were brought was on the principle, rather than their specific facts, there was no longer any basis for a decision in their favour in the claim.

On the practical implications, a court faced with a claim that the person has been left in the accommodation for too long should be slow to accept that this is so, as it is primarily a question for the authority. Nonetheless, there will be cases where the court ought to step in. While it would be wrong to ignore pressures on stock, budgets and personnel on the part of the authority, one cannot overlook the clear duty to the homeless imposed on the authority. So there will be cases where the present accommodation is so bad, or has gone on for so long that the court will conclude enough is enough [para 51]

And that was main argument done with. On the lawfulness of Birmingham’s allocation policy, it is clear that Part VI and Part VII duties are different. Performing a Part VI duty does not mean that the Part VII duty is satisfied and vice versa. Birmingham’s view that temporary accommodation was automatically Band A and homeless at home automatically Band B meant that the Council could not address the ’short term’ basis of the suitability of the homeless at home accommodation.

As far as the Court of Appeal’s judgment on the allocation policy was based on the conclusion that the applicants could not lawfully have been left in their current accommodation, it was wrong. However, that judgment was also based on the view that the Part VII duty to both groups was identical and it was unlawful to prioritise one.

R (Ahmad) v Newham LBC[2009] UKHL 14 (our report) suggested that, as long as a reasonable preference was given to all homeless applicants, there was no reason why an authority should not decide to give further priority to one group over another, as long as it was not irrational.

However, on the sparse information given to the court, there did not appear to be a rational justification for the policy of prioritising those in temporary accommodation over the homeless at home where a duty had been accepted. So, the policy was unlawful on that basis.

Thus the result was:

Moran v Manchester: Appeal upheld.
Birmingham v Ali: It is lawful for Birmingham to leave the ‘homeless at home’ where they are in the short term. It is not lawful for Birmingham to leave them there until a property becomes available under the allocation scheme - the present accommodation may well become unsuitable long before then. The allocation policy is unlawful to the extent that it gives priority to people in one type of temporary accommodation which is no less satisfactory than that of the homeless at home.

Comment.
It is perhaps difficult to resist the view that, having arrived at a neat and effective solution to the problem posed by Moran v Manchester - where the ‘it is not accommodation’ argument was in real trouble - the Lords sought to map that onto Birmingham v Ali and achieve a ‘practical’ result. But, as far as I can see, Baroness Hale and Lord Neuberger have effectively read in the word ‘indefinitely’ to s.175(3) such that it reads ‘A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy [indefinitely]‘. Certainly that is the implication of para 52.

I’m deeply uneasy with this idea of a ‘forward looking’ sense to s.175(3). ‘Forward looking’ is covered by s.175(4) - likely to become homeless within 28 days. The forward looking aspect of s.175(3) is surely that continued occupation after this point in time would be unreasonable.

It may be worth considering whether the judgment opens up a whole new aspect to homelessness applications - ‘not reasonable to remain indefinitely’, as that appears to be the clear implication.

And then suitability in respect of s.188, s.190 and s.193 accommodation. Clearly, suitability is, in terms of temporary accommodation, not an issue of suitability for indefinite occupation. But as a not so hypothetical question, given the facts in the Birmingham cases, how can a statutorily overcrowded property where a duty is accepted be suitable for any length of time? (although Harouki v RB Kensington & Chelsea suggests otherwise, but may itself be wrongly decided in the light of this case) - but of course this is question of circumstance and fact that we will be now left to litigate as ‘no longer suitable’ (’are we there yet’) cases. I can say with complete confidence that the legacy of Baroness Hale’s opinion will be a couple of years of cases on ’suitability’.

And what will be the venue? If the assumption is that remaining in the property is discharge of s.188 or s.193(2) duty, is the route via s.202 review and s.204 appeal? Or, if it is a freestanding decision, is it subject to judicial review? Para 50 does not make it clear, with passages that might imply both routes. Should we expect a case or two on this issue. Of course, if the authority refuses or fails to consider a submission on (un)suitability, that is a JR.

The upshot is that the ‘practical’ solution will mean a lot of litigation, leave a lot of people in properties in which it is not reasonable for them to remain, but, on the plus side, solve the disaster facing women’s refuges. Birmingham’s previous allocation policy is also left unlawful, which, frankly, has to be a good thing as a rational justification was nowhere in sight.

Heaven knows how costs were allocated on the Birmingham cases, but there will be a certain unhappy Birmingham based practice… Plus I will have to swallow all previous ‘intent on suicide’ comments - intent on self mutilation, perhaps, but not suicide on Brum’s part. Whether they are going to like the legacy in practice is another matter entirely.

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House of Lords Newsflash

Published
by
chief
on 1 July 2009
in Housing law
. 0 Comments

A full report on Birmingham v Ali and Moran v Manchester [2009] UKL 36 will follow in due course, but for those of you who simply can’t wait for your fix of House of Lords homelessness judgments, the headline is that both appeals are allowed to limited extents. For clarity, Birmingham v Ali is the Aweys v Birmingham appeal.

Baroness Hale, with whom their Lordships all agreed said that Birmingham can decide that a family is homeless because it is not reasonable to remain in their present accommodation indefinitely and to accommodate them for as long as it is suitable as short term accommodation.  However, they can’t leave them there until a house becomes available under the allocation scheme.  Birmingham’s allocation scheme was unlawful to the extent that it gave preference to people in one type of temporary accommodation that was no less satisfactory than the accomodation of those homeless at home.

In Moran although there may be circumstances in which it is reasonable to remain in a refuge indefinitely, there was nothing to suggest that it would be in this case.  The finding that Ms Moran had become homeless from the refuge intentionally was quashed.

We reported the Court of Appeal decision in Aweys (as it was known at the time) here and in Moran here.

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The good, the bad and the aesthetically challenged

Published
by
NL
on 29 June 2009
in Housing law
. 6 Comments

‘Building Britain’s Future’, a broad Government policy direction document, has been put out and must be regarded as an early draft of the Labour election manifesto. As people may well have heard, social housing and the allocation thereof features in the plan.

If you skip to page 82 of the full PDF, the suggestions are laid out in tantalising vagueness. Given the ‘to be announced’ nature of most of the contents (and, one presumes, the election based provisionality of much of it), what is actually in there?

The good -

we will consult on reforming the council housing finance system and allow local authorities to keep all the proceeds from their own council house sales and council rents. We want to see a bigger role and more responsibility for local authorities to meet the housing needs of people in their areas.

OK, only a consultation, but hurrah, finally. A potential end to the the ridiculous strangulation of funding for council housing.

Also good -

While preserving security of tenure we will pursue reforms to tackle these problems.

So hopefully that is the tenure shibboleth off the table.

Not sure if it is good or not, or even workable, but certainly interesting -

we will expand Choice Based Lettings to help residents move nationwide, and we will offer support to tenants who need to move to take up the offer of a new job.

This is an intriguing prospect, and one that, if it is made workable, could certainly be a good thing.

The bad -

we will launch an autumn crackdown on fraud within the sector, freeing up homes for those in need. Further details on this initiative will follow in the next few weeks.

And why is this bad? Not because a crackdown on fraudulent tenancies or sub-letting is bad, far from it, but because this is hardly a central government issue to resolve and the ‘autumn initiative’ smacks of classic knee jerk PR and central ‘targets’. It is unlikely to work, will cost a lot and change little. I may, of course be proved wrong and would be happy to be so. But I doubt it. ‘Autumn initiative’ indeed.

The aesthetically challenged? This is the one I’m sure you’ve all heard about -

we will change the current rules for allocating council and other social housing, enabling local authorities to give more priority to local people and those who have spent a long time on a waiting list.

Where to start? Waiting lists already give priority to time on list, at least those on CBL schemes. If priority is to be given to time on list per se over any other priority, then allocation schemes will become a farce. All those people who have been on the lowest (no hope) band for years are hardly going to get much more hope if they all get increased priority.

And then ‘local people’. What does this mean - really? What is to be the definition of ‘local’? Will it come from the League of Gentlemen? Nick Griffin? A local connection of some sort? Years in the borough? Kids in local schools? Or what?

Until we know, this has an unpleasant ring to it, based, as I noted at the time of Hodge’s expectoration, not upon facts but a tabloid version of them. I await a housing options interviewer saying ‘you be not from around these parts, be you? You be from north of the river. We b’aint be having with your fancy ways round here’ as a valid eligibility decision. But we will have to wait for whatever stroke of genius comes forth on this issue.

My confident prediction is that whatever it is, it will be thoroughly litigated. I would have thought that Gordon ‘British jobs for British workers’ Brown would have learnt that certain ‘dogwhistle’ (as the charming political consultants call them) phrases were dangerous to deploy…

As to what is introduced before the election and what gets to be introduced afterwards, we will have to see. There are certainly some good or intriguing proposals in there and we have to hope that those see the light of day.

[Edit And a £1.5 billion investment:

Extra funding so councils and housing associations can build around 15,500 new affordable homes, of which over 11,000 will be available for social rental and the rest will be affordable housing. More may be built if greater value for money can be achieved.
Extending the Kickstart programme that gets stalled housing sites back on track, with the aim of delivering an additional 13,000 homes, of which 4,000 will be affordable.
Investing in the development of public sector land owned by the HCA, Local Authorities and other public sector bodies to deliver up to 1,250 units of which 500 could be affordable.

What that blurb doesn't say is that £1.5 billion includes diverting funds that had been set aside for renovating existing social housing, according to the Guardian, so Decent Homes funding may be drying up.]

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RSLs support L&Q in Weaver appeal

Published
by
NL
on 29 June 2009
in Housing law
. 7 Comments

According to Inside Housing, not only is L&Q to seek permission to appeal the Court of Appeal decision to the Lords/Supreme Court (and no surprise there) but the G15 group of the largest RSLs in London are potentially backing them, including funding. To quote Inside Housing:

Steve Howlett, chief executive of Peabody Trust and chair of the G15, said: ‘The G15 will consider how we can support L&Q if it chooses to appeal.’

When asked if this meant contributing to a possible ‘appeal fund’, Mr Howlett replied: ‘Yes - that is something that has previously been discussed.’

Given the ludicrous position that the LSC adopted on funding the Court of Appeal case for Ms Weaver, one would hope that this bloc of RSLs would make it abundantly clear that this is a ‘broader public relevance’ case par excellence and funding will follow.

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Mutual appreciation

Published
by
NL
on 28 June 2009
in law blogs and blogging
. 1 Comment

Tessa Shepperson’s Landlord law blog has been up since February 2006, predating us by four months. The name is slightly misleading - Tessa deals with residential landlord and tenant matters and has much to say of interest for private tenants as well as landlords - see, for example, today’s helpful post on the use of credit unions to avoid banks seizing Local Housing Allowance money from tenants’ current accounts to pay other debts, thus leading to rent arrears. Her blog has also pointed to new tenancy deposit cases that we have gratefully pounced on.

Tessa has just said some nice things about this blog in a post on current housing/L&T blogs and it reminded me both that she has been a friend of this blog since the beginning and that a bit of appreciation of her work wouldn’t go amiss. Tessa writes the blog alongside her business site - her practice is based online - but rather than simply being a promotional device, the blog is always an interesting and useful read, which is both generous and, in my view, shows an astute understanding of web 2.0 marketing…

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Austin to the Lords

Published
by
NL
on 26 June 2009
in Housing law
. 0 Comments

Word reaches us that LB Southwark v Austin (our report on the Court of Appeal here) has been given permission by the House of Lords (or Supreme Court as it will be).

It seems that the time of the tolerated trespasser troubling the Lords is not yet over, as the situation in Austin was not caught by the Housing and Regeneration Act. So one to watch out for.

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The Lords on Aweys coming soon

Published
by
NL
on 25 June 2009
in Housing law
. 3 Comments

News reaches us that the House of Lords opinions in the appeal of Aweys v Birmingham are to be handed down on 1 July (Court of Appeal report here). [Update, Moran v Manchester CC (our Court of Appeal report here) will also be handed down on the same day as the two were heard together]

We’ll have the decks cleared for those.

In the meantime, here’s a picture for the interlude. (Note to younger readers. There was a time, not that long ago, when there were only three TV channels and programmes didn’t start till lunchtime - and would sometimes then stop until tea. In the interim, they’d put a picture up. And we’d watch it. Amazing, isn’t it?).

Naturally, us being us, you don’t get a picture of ducks, sunset or the Lake District. Instead - decanting…

decant

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Two homes, two MPs and an EDMO

Published
by
NL
on 24 June 2009
in Housing law
. 14 Comments

EDMOs, a remarkable power given to local authorities under Housing Act 2004 to take control of an abandoned or unused residential property and let it (and charge the owner for most of the related costs of doing so), have been used remarkably rarely - I am informed some 29 decisions on orders have been made in the RPT in England since the Act came into force.

Which raises a question or two over the threatened thirtieth order. Married Labour MPs Alan and Anne Keen, who were exposed in the Telegraph expenses porn spreads as both claiming for their joint second home - a flat in Waterloo - to the tune of £30,000 a year for the last four years, are facing a threatened EDMO on their property in Brentford. The Conservative controlled council are threatening an order on the basis that the property has remained unoccupied for 7 months. A Liberal Democrat councillor (and prospective Lib Dem candidate for MP for one of the Keen’s constituencies. I’m not saying which), Andrew Dakers observed:

that the windows at the back of the Keens’s main home were boarded up and that there was paint splashed on the inside of the upstairs windows.

which brings up worrying images of someone’s Lib Dem Counciillor hanging around the back alley (do they have back alleys in Hounslow?) peering in through the windows. People get arrested for less.

Between starting this post and writing this bit, the Keens have responded that the property was not unoccupied, just being renovated (those paint marks and all) - the BBC story has been updated - but apparently will still need to make a formal response to Hounslow Council.

Is it just me, or does this story make all concerned look more than somewhat ridiculous? EDMOs are not used, despite their real potential utility. How many EDMOs has Hounslow sought before this, one wonders - and as far as my cursory searching told me, the answer was none, but I have been corrected - there were two in 2008.

Given that the property has only been allegedly unoccupied for seven months, was apparently known to be the MP’s, and has councillors personally commenting on the state of its rear windows, that it seem be cynical publicity seeking on the part of the Tory Council and on the part of Mr ‘hiding in the shrubbery’ Dakers, the prospective Lib Dem MP, while the Keens are hardly covered in expenses glory on their two homes arrangements. Lovely.

For any Local Authority people reading this, we are genuinely curious as to why EDMOs aren’t used more often. Why not? Do let us know in the comments or in private email.

Update: The property has been squatted by a group apparently intending to make it a ‘refugee centre’. (Thanks Jim). I think this ends the EDMO, as the property has to be unoccupied - lawfully or otherwise - for it to go ahead. But I guess the Keens have other more pressing problems…

433276Photo from Indymedia.

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Kay re-stated

Published
by
NL
on 23 June 2009
in Housing law
. 1 Comment

And the question of what Doherty actually means rumbles on.

Central Bedfordshire Council v Taylor & Ors [2009] EWCA Civ 613 was the Court of Appeal hearing of an appeal from a Circuit Judge’s decision to make an outright possession order and, in particular, to refuse to make findings of fact as a basis for an appeal based on Article 6. The appeal had a complicated history, the original decision was made before Doherty in the Lords was handed down and the grounds for appeal prepared in anticipation of the Lords decision, then revised afterwards from being based in the minority decision in Kay to argue a Doherty gateway B public law basis.

Since then, the Court of Appeal has decided on Doran v Liverpool CC [2009] EWCA Civ 146 (our report) and McGlynn v Welwyn Hatfield BC [2009] EWCA Civ 285 (our report), further shaping the landscape.

The facts in the case were not dissimilar to Kay. In 1993, Bedfordshire CC (as was) had leased land and dwellings to Luton for 3 years with a sublease to a housing association for assured shorthold tenancies. Lengthy negotiations over a new lease fell through and in 2007 Bedfrdshire commenced possession proceedings. Some occupants of the properties defended on the basis interference with Article 8 rights such that it was a breach of Art 6 to bring possession proceedings. The dismissal of this defence was what was appealed.

The issue before the Court of Appeal was given as how should County Court judges approach situations similar to Kay, post Doherty. Has the position changed such as to afford a possible defence to such a situation. Is it arguable that circumstances were such as to impose on the Council a duty to consider the personal circumstances of the appellants? And is the test something like Wednesbury rationality or something wider?

In the main judgment, Waller LJ considers Doran and McGlynn, in particular in view of their holding that a public law consideration wider than the Wednesbury rationality test was appropriate and, in McGlynn, an arguable defence based on the Council’s failure to carry out reasonable further investigations. But these cases concerned termination of a lease or licence (McGlynn), or statutory duties (Doran, Doherty). In this case, as in Kay, the occupants are trespassers and the Council has an undoubted right to possession.

The question is therefore has the decision in Doherty impacted on Kay. Waller LJ adopts Toulson LJ’s analysis of the decisions in Doherty set out at paras 15-22 and 48-52 of Doran, to the effect that the public law defence is not to be confined to traditional Wednesbury grounds - ‘there is no formulaic or formalistic restriction of the factors which may be relied on’ and personal circumstances are not necessarily irrelevant. However, this does not address the situation where the facts are so close to Kay.

The Council submitted that Doherty did not suggest that the decision in Kay, on the facts, would have been any different. In regard to trespassers, an authority with immediate right to decision had no obligation to consider the personal circumstances of the occupants. Even on the view of the minority in Kay, it was unarguable that a council acting reasonably would have done otherwise than seek possession.

The Secretary of State, intervening, suggested that the matter should be remitted to the County Court so that the appellants’ arguments could be fully considered and the appropriate facts found. However, it would be wrong to remit if it would serve no purpose or, if there was to be a remittance, without guidance.

For Waller LJ, Lord Hope’s ‘further explanation’ in Doherty of his statement of gateway b in Kay is noted, but his endorsement of the Qazi principle that ‘a defence to a possession order which does not challenge the law under which it is sought but is based only on the personal circumstances should be struck out’ at para 42 of Doherty is to be taken as saying that Kay would still be decided the same way. Lord Hope’s qualification of that principle must be seen in the context of the facts and law of Doherty.

While the re-interpretation of para 110 does have general application in its loosening of the restrictions on the factors able to be considered in review, Doran itself concerned similar facts to Doherty. Where Waller LJ differs from the view of Toulson LJ in Doran is on Toulson’ holding that the facts at issue were those at the point of the original decision and indeed that the decision to seek possession is the relevant decision to challenge. Waller LJ instead holds that a council may make a series of decisions as facts become known to it, up to the point of the hearing itself. If any of those decisions was shown to be ‘unreasonable’ it could be attacked.

But in the present case, this makes little difference. Where the facts are similar to Kay, a court, post-Doherty, will actually be in much the same position as it was even before the convention became law [para 42].

Waller LJ accepts that whether the decision of a local authority is ‘reasonable’ post-Doherty goes beyond the question of what is rational. A local authority should take account of the personal circumstances of an occupier known to it. But it does not follow from this that there will ever be circumstances in which it will be unreasonable to seek possession against trespassers in situations similar to Kay, where, as here, the occupants are not initially known to the authority or have any relation with it. The law allows for a period of time to bring the possession order into effect and this is sufficient.

Even where the local authority was aware of the personal circumstances of the occupiers, their obligation to take account of them could never make it unreasonable to take proceedings for possession [para 45] as the authority has an absolute right to possession. Personal circumstances are only relevant to postponing execution. There was therefore no reason to remit the case to the County Court. Appeal dismissed.

Lloyd LJ concurs. The proper decision for review in this case was the decision to pres for trial of the possession claim, once the circumstances of the occupiers had become known to authority. Accepting for the moment the appellants’ account of the facts and their circumstances, it would still make no difference. Following Lord Bingham at para 47 of Kay (and Lord Bingham was in the minority) where the pleaded facts give no special claim to remain, there is no duty to accommodate and the authority has an unqualified right to possession, possession orders would necessarily be made. There was no need to remit in this case and appeal dismissed.

Richards LJ concurred.

So there we are, for the moment at least. Post-Doherty defences do not apply to a Kay situation, where the local authority (or public body, including RSLs, post Weaver) does not have any relation to the occupiers, the occupiers are trespassers and the authority has an unqualified right to possession. Unlike termination of a lease or licence, or where a statutory duty is involved, the defence cannot succeed, with the possible exception, pace Lord Bingham, of where the facts give rise to a special claim to remain.

Now, what would this mean for ‘failed successor’ cases? McCann involved termination of a tenancy and a case like that would clearly potentially have a public law defence in Doherty form, but a failed successor? Or ’successor’ to a tolerated trespasser (prior to 20 May 2009)? We’ll have to see, but the argument is surely that Kay would apply, absent some particularly egregious behaviour by the authority.

My guess is that this will be headed to the Supreme Court, but for the moment, public law defences would seem limited to those who have or had some contractural or statutory relation to the authority in their accommodation.

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He can look after himself

Published
by
NL
on 22 June 2009
in Housing law
. 4 Comments

R (Shoaib) v LB Newham [2009] All ER (D) 198 (Jun) [only available as an All ER note as yet] was a Judicial Review of a decision to terminate s.21 National Assistance Act support to Mr Shoaib.

Mr Shoaib had claimed asylum in 2004. His claim had been rejected in 2006 and with it NASS support (as it was then). A fresg asylum claim was made and Newham decided to provide s.21 support. Mr Shoaib suffered from epilepsy. His support was reviewed on a number of occasions. On the last occasion, the social worker, who had not had details of Mr Shoaib’s medical condition provided to him, decided that Mr Shoaib ‘was able to look after himself’ and therefore not in need of s.21 support.

Mr Shoaib sought judicial review on grounds that:
1. the social worker had misdirected himself in law by limiting the definition of care and attention.
2. further investigation should have been carried out into Mr Shoaib’s medical condition. The effect on the frequency, severity and impact of his epilepsy should support be refused had not been properly taken into account.

Held
1. The social worker had not misdirected himself but applied the correct test, i.e. whether the person concerned needed things to be done for him which he could/should not be able to do for himself. There was ample material to indicate the claimant could look after himself.
2. The claimant’s medical condition was not at the serious end of the spectrum and would not have warranted s.21 support even if it had been fully brought to the social worker’s attention.

Claim dismissed.

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