Archive for January, 2007

But I hardly know you

Published
by
NL
on 29/01/2007
in Assured Shorthold tenancy and Housing law - All
. 0 Comments

Why do people do it? Why do they sign up for joint tenancies with private landlords together with people they have only just met?

I’m sure it all seems terribly exciting, but what are you letting yourself in for with your shiny new shorthold assured tenancy?

You and all the joint tenants are ‘jointly and severally’ liable for the rent. This means you are each liable for all the rent. If your instant friend stops paying rent, the landlord can come after you for it, even if you have been ‘paying your share’. The Landlord can claim it from you, all the tenants or any of the tenants, whichever option seems to offer the best option of getting the money back. This is entirely legal. Fancy getting a County Court judgement for several thousands of pounds?

And then what if you or your joint tenant brand new buddy wants to leave? Do you just walk away? Then you remain liable for the rent. Do you give notice? Then the whole joint tenancy is ended, for everyone, whether they agree or not.

Surely it will be OK if someone else is found to replace you (or your errant erstwhile friend)? Has the landlord agreed a whole new tenancy agreement for all joint tenants, including the new person? No? Then the new person is the sub-tenant of the existing joint tenants.

Does your tenancy agreement allow subletting? Probably not. Maybe the landlord has condoned it. If not, you are in breach of your tenancy agreement. But in any case you and the joint tenants remain liable for the whole rent to the landlord. Any problems with the new person/sub-tenant are your problems, not the landlord’s.

And then, when it has all gone pear-shaped and to your astonishment you find yourself facing a money claim for thousands of pounds and/or the sudden and unexpected end of your tenancy, you call me and make me feel like I am trampling on little kittens when I tell you there is nothing we can do.

For the sake of the kittens, don’t do it.

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Human Rights and possession claims after Kay v Lambeth

Published
by
NL
on 28/01/2007
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 13 Comments

The House of Lords decision in Kay v Lambeth [2006] UKHL 10 addressed Human Rights defences to possession claims, attempting to unify Harrow v Qazi [2004] 1 AC and the subsequent European Court judgement in Connors v United Kingdom [2004] 40 EHRR 189.

Qazi effectively ruled out a human rights defence to possession based upon Article 8 where domestic law had been complied with.

Article 8 of the European Convention on Human Rights provides that

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Qazi effectively said that any possession claim made in accordance with domestic law satisfied 8.2.

Connors concerned an eviction of a gipsy family under a statutory procedure that required no reasons to be given by the local authority and no examination by the Court. The European Court held that the power to evict without giving reasons to be examined by a tribunal had, in this case, not been shown to satisfy 8.2. Moreover the legislation that enabled this did not give the requise procedural safeguards (there have since been amendments to change this). There was a positive obligation to consider the needs and lifestyle of gipsy families, both in legislation and in particular cases.

So, Connors apparently re-opened possible Article 8 challenges via two routes, a failure by a public body to consider the particular circumstances of the occupier where that should have been considered, and the incompatibility of legislation with Art. 8.

Kay v Lambeth, by a 4 to 3 majority, appeared to decide that the issue in Connors was solely that of the law itself, such that the only possible Art. 8 challenge was to whether the law under which possession was claimed met the Art. 8 requirements in terms of interference with the right to respect for the home. The assumption that the County Court should make was that if the interference was permitted under domestic law, it met those requirements. In some exceptional cases, such as Connors, it may be that the statutory procedure should ensure that special consideration is given to Art. 8 rights and this is a matter of statute. The minority considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.

The upshot of Kay therefore appeared to be that any Art. 8 defence had to be that the law was incompatible with the ECHR. Either the County Court would attempt to give effect to the law as best it could in accordance with Art. 8 or the matter would be sent to the High Court for consideration. At best the result would be a declaration of incompatibility, which, as the statute would still stand, still wouldn’t help the occupier who would still have possession granted against them.

This view has now been tested in the Court of Appeal in Doherty v Birmingham CC [2006] EWCA Civ 1739, which concerned a summary order for possession. The Court of Appeal take a lengthy and considered comparison of the six reasoned judgments in Kay v Lambeth and settled on the ‘majority’ view as set out by Lord Hope.

Both Kay and Doherty though, do confirm that public law defences are available in County Court possession hearings, at least against public bodies. So anything that might be a ground for judicial review of the decision to take proceedings can be raised as a defence to a possession claim by a public body. It seems this is now the only way in which individual circumstances could be raised where possession procedures don’t alow them to be addressed by the County Court.

What does that leave for Human Rights challenges? Not a lot, I think.

Possibly in Connor style termination of licences for Gipsy/Traveller cases, where there are strong merits. But the specific law in Connor has been amended to give some discretion to the Courts, so a duplicate challenge may now fail.

In an article in the May 2006 LAG, after the decision in Kay, it was suggested that a challenge to Ground 8 1988 Housing Act claims may be possible, at least where arrears are solely due to housing benefit errors. I’m not sure about this, for two reasons. Firstly, this looks like considering specific personal circumstances in relation to housing benefit, and secondly, because the challenge would surely have to be against Ground 8 as incompatible with Art. 8 tout court, against an absolutely express intention of parliament. Plus, of course, it wouldn’t benefit the occupier who would still have possession given against them. (It may be that a putative public law defence would be an option here: Housing Association as a functional public authority and making an unreasonable decision to pursue a mandatory ground in view of housing benefit issues. The Housing Corporation guidance on ground 8 could help here. But this is also untested).

Whilst on the Housing Act 1988, the other big ground of non-discretionary possession, this one against private tenants – s.21 Notice and the accelerated possession procedure, might similarly lack procedural consideration of circumstances, but this one has already been tackled and dismissed by the Court of Appeal in Donoghue v Poplar Housing [2001] EWCA Civ 595.

No doubt there will be further challenges, but given Doherty’s confirmation of the majority view in Kay, these are likely to be in quite exceptional areas. Mainstream possession claims, where in accordance with statute and the law, are beyond human rights defences.

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An exercise in avoiding the point

Published
by
NL
on 28/01/2007
in Various (non-housing)
. 0 Comments

In an adjournment debate on Legal Aid reforms on 11 January 07, the following exchange took place:

Ms Karen Buck (Regent’s Park and Kensington, North) (Lab): The Minister said that 60 per cent. of cases will generate more income, and that is the key point, which I suspect will be reiterated several times by those who are lucky enough to catch your eye, Sir Nicholas. Our core point—certainly for those on the Labour Benches—is that the 40 per cent. of cases that do not generate more income will be disproportionately concentrated in areas where providers deal with the most vulnerable people and the most complex cases. Sadly, we have not yet heard any convincing evidence to lead us to believe otherwise.

Vera Baird: That is not, on the face of it, the case at all. My hon. Friend’s constituency, for instance, is very deprived, but about 51 per cent. of the suppliers in her constituency now do such work at below the fixed fee rates, so her argument does not follow at all. There are suppliers in the regions who cost more for the same job than suppliers in London, there are suppliers in some areas of London who cost more than those in other areas and there are suppliers who cost less. It is not, therefore, about regions, but about costs and about rolling out best practice so that we can get the best and the most out of all suppliers. We are reasonably confident that we have pitched the fees at roughly the right level.

As far as I can see, Vera Baird’s figures actually back up Karen Buck’s point. Nationally 40% of suppliers will be worse off, but in Karen Buck’s deprived constituency 49% will be worse off, which is a disproportionate concentration.What Price Justice

And what are those 49% to do? Why naturally, they are to provide more advice at a lower cost. It is worth noting that all these figures include Not-for-Profits, not just firms, which affects the proportions as well.

It is worth reading the whole debate, not least because Baird’s repeated response to questions about fixed fee levels is simply to say the the questioner’s constituency contains providers who currently charge less than the new fixed fee. This is quite possible, but does not make the fee any less of a problem for very large numbers of firms. Baird knows this, of course, but evades the point at every opportunity.

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The way we live now

Published
by
NL
on 27/01/2007
in Various (non-housing)
. 0 Comments

I left this search query out of the last post because the more I thought about it, the more it seemed that this query, and the fact that someone put it into a search engine, somehow crystalised something of Britain in the noughties…

supervising the passive agressive employee

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Obvious filler 3

Published
by
NL
on 26/01/2007
in Various (non-housing)
. 0 Comments

I’m having a think about a post on housing law and human rights, but I am busy, tired and having to stand up on the train.

In a week that brought us exposed judges, the inadvertent end of solitary confinement as the jails fill up, John Reid begging for non-custodial sentences and senior judges objecting to reforms of rape trials, naturally I am reverting to part several of the lazy (busy, tired) blogger’s standby, questions that brought people here, woven into a zeitgeist by Nearly Legal.

First, I am of course proud to have a blog that brings in searchers for

copyright problem of originality in photographs

as well as

it is unlikely that proprietary estoppel will assist where constructive trust has failed

Unfortunately, my polymathic abilities sometimes fail, usually in the face of the Beckettian bleakness of our current existence. For instance,

busted spit up

can only be a cry of despair at the mind trapped in a body prone to all forms of eructation. And then the black humour of the hope that things might, one day, be better…

how much are solicitors paid in stoke on trent?

Whilst on job applications, we have the honest if not enthusiastic

dead-end jobs sociopath

But, as with Sam Beckett, the questions are what can we say?

what can a paralegal say to a witness

Does it mean anything?

cold case schadenfreude torrent

and can we stop saying anything meaningful at all

how to say yes in legalese.

But of course, we still speak, still hope in spite of ourselves, still believe that there is more to us…

legal aid for middle class families

Hey, it’s a means test. As long as you are skint, you can still pretend to be a church goer to get your kids into a ‘good school’ and get legal aid. You can even speak RP. Of course, the kind of case you can get legal aid for is very limited…

And lastly, topical and vaguely on theme, is it just me who finds a very Beckettian (Sam not Thomas a) joke in finding out that Catholic adoption agencies would rather close than entertain gay couples as ‘a matter of conscience’, but will happily consider atheists?

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Difficult decisions

Published
by
NL
on 21/01/2007
in Various (non-housing)
. 0 Comments

This weekend, my partner and I were trying to work out what we were going to do with the salsify that turned up in our organic box. It was a step into the unknown which caused some debate, so I have sympathy with John Reid and Charlie Falconer trying to work out whether the Home Office is better as one unit or two.

We settled for a fish soup for using the salsify. Having made that decision, I feel competent to say that splitting the Home Office is probably a good idea. However, the outcome of both decisions remains to be seen.

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Done and seen to be done.

Published
by
NL
on 20/01/2007
in Various (non-housing)
. 0 Comments

Amidst the detritus of Mayors celebrating evictions for anti social behaviour and the dawn arrest of the PM’s political liasion officer, I was struck by two things.

One is that Ruth Turner, in common with most of the political class, doesn’t know the meaning of ‘refute’. Ms Turner, you didn’t refute, you repudiated.

More seriously, Lord Goldsmith, the Attorney General, announced that he will not stand aside from advising the CPS on the ‘cash for honours’ case and even slapped the wrist of Charlie Falconer, Lord Chancellor, for having suggested that he would.

So, a personal friend of the Prime Minister, who attends cabinet meetings and gives legal advice to the government, is potentially to advise the CPS on whether or not to bring proceedings in a case that may involve charges against associates of the Prime Minister and conceivably, if not probably, the Prime Minister himself.

Regardless of Lord Goldsmith’s probity and ability to objectively assess a case, this is an error. Following hot on the heels of a rebuke to the UK over the yanking of the SFO investigation into corruption in the Saudi arms deal with British Aerospace, this doesn’t look good at all.

And that is the point. No man shall sit as judge in his own cause, and neither shall his mates. Not necessarily because this will not result in justice being done, but because it will result in the perception that justice has not been done.

Of course, Lord Goldsmith knows this. It is within his discretion to delegate or assign the role of advising the CPS to someone else. He should do so and his refusal to step aside is incomprehensible. That this matter is to be considered by him before it reaches a court (or not) is no excuse, other than a technical one.

“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”. Lord Hewart CJ, R. v Sussex Justices Ex p McCarthy.

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Law Search beta available for use.

Published
by
NL
on 20/01/2007
in Various (non-housing)
. 0 Comments

I’ve put a link for the code for the custom search engine on the Law Search page. Anyone is free to add the search box to their own pages, and the graphic if they want. The only conditions are that you do not claim authorship or ownership, and you do not charge for its use in any way.

An email to say where it is being used would be nice, as would an attribution and link.

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La Boheme

Published
by
NL
on 16/01/2007
in Various (non-housing)
. 0 Comments

Amidst the boredom, misery and frustration of handling new inquiries, one way of sustaining interest is identifying the theme of the day. There usually is a theme, frequently repeated. Generally, the theme is a single capitalised word, Desperation, for instance, or Greed, or Incompetence.

Today’s theme was more unusual, Italian Opera. Sex and Betrayal filled my working day. The libretto went something (but most certainly not recognizably) like this:

Act One.
The curtain rises on two flats
A. a husband and wife in their local authority flat. It is a small place, with mismatched and worn furniture, but clearly treated with care and determination to make it a home.
B. a husband and wife and 16 year old son in a small and shabby private flat.
In both flats, the wife stares in horror and disbelief as the husband (A & B in duet) sings that he doesn’t love her and has been seeing another woman for years.
In a desperate duet, Wife A tells her husband to leave and Wife B tells hers she is leaving.
Husband A leaves, telling his wife in recitative that he will be back, as it is a joint tenancy and he has rights. Husband B shouts at his wife that she will not leave him and hits her, she flees together with the son, to stay with friends.

Act 2.
The famous ‘Caseworkers Chorus’
Wife A at the Council housing office. She asks for the tenancy to be put in her sole name.
Wife B at the Council homeless unit. She makes an application as homeless. The individual arias meet in a duet begging for recognition of their plight.
The housing officers, in chorus, – under the relationship breakdown policy there is nothing can be done save with the husband’s consent
The homeless officers, in chorus, – (ignoring the domestic violence) your son is not in full time education so you are not in priority need. We have no housing duty.
All officers together – there is nothing we can do (repeated, with keyboard clatter and shutting doors.).

Act 3.
Wife A sits in the flat with curtains drawn, singing of her anxiousness about her husband’s return and how long she must wait till her tenancy is sorted out by the Court in her divorce.
Wife B sits in a small private flat, with a chair against the door, singing of having to reject the landlord’s unwanted approaches and how, having rejected him, he has told her to leave straight away.

Curtain

If ever I felt like breaking into Che Gelida Manina in interviews, this was it.

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Social landlords seek to avoid disrepair claims. No repairs involved.

Published
by
NL
on 14/01/2007
in Disrepair and Housing law - All
. 0 Comments

Searching for something else entirely, I stumbled across a press release from the Social Housing Law Association detailing their representations to the DCA on funding for disrepair claims, made late last year. Headed “Move to repel tenants’ bogus disrepair claims”, the report says that the SHLA made representations to the DCA to have the Public Funding eligibility cut off for a disrepair claim raised from a claim value of £1000 to £5000 because “It would make it five times more difficult for tenants to access public funding for disrepair claims” and in this way “the majority of tenants making claims for disrepair should be shunted into the small claims court to prevent them from claiming legal aid”.

Naturally it is in social landlord’s interests for this to happen, and the real reason for the proposals was perhaps made clear as “Quentin Paterson, a solicitor and committee member of the SHLA, said increasing the limit should lead to a large fall in the legal costs that social landlords pay to claimants’ solicitors.”

It is worth taking a closer look at some of the SHLA’s assertions.

Firstly, ‘bogus claims’? Given that an expert’s report – ideally a single joint expert – is a necessary part of the Pre-Action Protocol, any issued claim will, of necessity, be on the basis of actual disrepair. If there is dispute about duration and notice, then the Housing Association should be able to rely on their own records, assuming, of course, that they are at all competent. How is the claim bogus?

I would be delighted if the SHLA cared to put forward figures on ‘bogus claims’ and a description of what constitutes a bogus claim. Until then, I’m very sceptical.

Secondly, this level of £5000. General damages in a disrepair claim take the rent payable as a basis for assessment of quantum, considering diminuition of value of the tenancy. For social housing, weekly rent is typically £70 or £80 per week, giving an annual rent in the region of £3500-£4000. If we assume a really serious level of disrepair, such that the Court would give a 100% diminution of value, that had been going on for a year since the landlord was notified of the disrepair, then general damages would still be less than the £5000 proposed by the SHLA even for a full year. Such a serious level of disrepair would mean that the property was effectively uninhabitable, and would quite possibly be suitable for an application for interim injunction for immediate repairs. Nonetheless, for the SHLA, it shouldn’t be eligible for public funding if damages and repair value together were less than £5000.

Thirdly, the SHLA’s approach seriously misunderstands the current basis for awarding public funding. A claim for ‘compensation only’ has to be over the £5000 threshold currently, but also in actuality has to be of a potential level to meet a ratio of at least 2:1 claim value to likely costs, meaning some way over £5000 as a starting point in any case. However, a claim primarily for enforcement of repairs does not necessarily need to show the value to costs ratio. I find it very hard to see how a claim primarily for enforcement of repairs could be ‘bogus’. So the SHLA’s position would remove the most urgent cases where repairs needed enforcing from eligibility for public funding, whilst not actually affecting the compensation only cases. That is nonsense.

Small claims would be virtually impossible for a tenant – they couldn’t afford the expert’s report, just for starters. This is what the SHLA want, of course.

Frankly, I think that these representations to the DCA are more than somewhat cynical. If the housing associations are upset that they “were forced to devote considerable expense and staff time if they wished to resist claims”, the answer is fairly simple. Do the repairs within a reasonable time. Granted, some social landlords are lumbered with poorly built and decaying housing stock, and I have some sympathy with them on that basis, but attempting to make it difficult for people to make valid claims against them is not the solution.

As a postscript, it is worth noting that the Disrepair Pre-Action Protocol was introduced precisely to reduce the need for claims to be issued. Public Funding can be awarded to tenants to take the protocol steps. If social landlords were serious about reducing the amount of staff time and costs to tenants’ solicitors involved in disrepair claims, then they could avoid many claims by actually following the protocol. In my anecdotal experience, they tend to be atrocious at doing so, often doing nothing until a claim is issued.

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