Archive for June, 2007

Housing Duty - stating the obvious

Published
by
NL
on 12 June 2007
in Housing law
. 15 Comments

For once, Birmingham was on the winning side of an entirely predictable Court of Appeal judgment on homelessness law. Omar -v- Birmingham City Council 2007. (7 June 2007. Times Report. Not yet freely available elsewhere)

Birmingham had discharged duty to the appellant after he refused an offer of permanent accommodation, which was found to be suitable on review. Omar appealed on the basis that the offer letter had stated that it was ‘a final offer’ and that this did not comply with the requirements of s.193(7) Housing Act 1996, which states

(7) The local housing authority shall also cease to be subject to the duty under this section if the applicant, having been informed of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses a final offer of accommodation under Part 6.

(7A) An offer of accommodation under Part 6 is a final offer for the purposes of subsection (7) if it is made in writing and states that it is a final offer for the purposes of subsection (7).

The statement that this was ‘a final offer’ was contended not to state that this was an offer of accomodation under Part VI, and so not meet the requirements of (7). The Appeal to the County Court was dismissed and taken to the Court of Appeal.

The Court of Appeal dismissed the appeal, holding that the explict reference to a final offer could only mean an offer under Part VI. The terms of (7) were mandatory, but there was no need to rigidly follow a form of words if the point was conveyed adequately. Here, the addition of words to the effect that this was an offer under Part VI would not add anything useful or necessary for the appellant’s understanding.

Apparently some County Court appeal judgments had gone the other way, which is a surprise. What isn’t a surprise is the Court of Appeal verdict. To be honest, I’ve never seen any client who didn’t understand they were only getting the one offer and that this would be the end of it. What the clients do get very confused about is what constitutes ’suitable’, usually being wildly over-optimistic.

In any case, the Court apparently adds for good measure, the appellant’s refusal also fell under s.193(5):

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

The rolling together of s.193(5) and (7) here is interesting. The way it is done appears to mean that (7) is more or less irrelevant if (5) is to apply to any offer, whether temporary or permanent accommodation (a Part VI offer). If so, this is slightly worrying, because (5) only has a test of ’suitable’, where (7F) gives a two part test - ’suitable’ and ‘reasonable for him to accept’. It is entirely possible for an offer to be suitable but not ‘reasonable to accept’, as this latter is a subjective test (Slater v LB Lewisham (2006) [2006] EWCA Civ 394). I’m awaiting an approved judgment to see about this, because I’m not sure that (5) should apply to Part VI offers of permanent tenancy.

Nearly Legal’s sage words to anyone facing their one offer are take the offer and request a review of suitability at the same time, thus minimising the risk of ending with nothing. There has to be a very significant problem for an offer not to be suitable, on the order of being placed near to a previous abuser, or at a virtually impossible distance from medical support structures, for instance. Not liking the layout of the bathroom or the view from the front window won’t do (and yes, I have heard those put forward).

England expects..?

Published
by
NL
on 10 June 2007
in law blogs and blogging
. 0 Comments

A while ago, I put myself down to write one of the weekly Blawg Reviews, as did Corporate Blawg. I thought no more about it.

The Blawg Review is largely US based, that being where there are most Law blogs. What hadn’t occurred to me was that between us, Corporate and I had effectively kidnapped the Fourth of July. I’m on 2 July, Corporate is on 9 July.

Now the Blawg Review editor has noticed that Brits will be doing the hosting over the Independence Day period and, invoking Paul Revere, has thrown down the gauntlet, adding:

And we’re sure there are even more barristers and solicitors blogging across the pond who will join us in celebrating the best of the legal blogosphere.

So, the stakes have been raised and we may need to put on a good show. Of course, we Brit blawgers are just generally wonderful, but if anybody has any particularly fabulous posts in draft, posting them in the period after 25 June would be appreciated…

Justin Patten at Human Law was the first Brit to host a Blawg Review and now Charon QC has been invited to host in January. Soon the world will be ours.

Spleen 2

Published
by
NL
on 4 June 2007
in Legal Aid and job
. 9 Comments

Commenting about anonymity on another blog a few days ago, I realised I hadn’t posted anything meriting a digital balaclava for ages.

Time to put that right, because I have more spleen to throw at the LSC than ought to be anatomically possible. Not for its policy, although not lacking in reason for that, but for its utter inability to actually manage to perform its day to day operational activities, to wit: issuing and amending funding certificates.

First, a brief moment of reasonableness. I’m sure that the frontline is understaffed and under-trained and that it really isn’t their fault.

Now that is out of the way… How dare this bloody agency presume to lecture us on efficiency? A few months ago, the entire London operation for dealing with certificates was moved to Newcastle, not in itself a problem except that it seemed to come as a surprise to Newcastle, which remains so traumatised that it requires three attempts to get anything done. Was the move not planned for? If it was, who screwed it up?

Lots of lost or misplaced files later, the process is roughly as follows…

A four week backlog before anything is even considered, regardless of the actual urgency. No point in faxing because even if it gets through, as one minion told me on the phone, they don’t bother looking at the faxed stuff.

After four weeks, the APP1, APP8 or whatever will be sent back to us because:

  • you supposedly haven’t filled in bits that you have;
  • they demand irrelevant information;
  • they demand information you can’t provide (and have explained why).

So you send the form back, explaining. Now you are back at the back of the 4 week queue. What do you mean your devolved powers/emergency certificate ran out after four weeks? You should have marked it as urgent. Oh you did. Tough, it is in the pile now.

Now and again, for the sake of variety, when you call Newcastle, you are put through to Birmingham. Why? Has Newcastle got a bit of a headache? Or had a row last night and just isn’t up to taking calls? Birmingham seems eager to help, but can only tell you the application you are chasing ‘isn’t on the system’. Still it is nice to hear a different accent from time to time.

Then comes the decisonmaking, or wildly variable unsubstantiated guesswork, as we call it. While it is nice that the decision makers don’t feel the need to shackle themselves with the funding code and guidance, I personally prefer it when applying for a funding certificate does not resemble doing a lottery scratchcard.

So one often finds it is necessary to submit a reply to show cause, or an appeal, as one might have a hearing in the near future. Then one finds it necessary to submit it again, by fax and DX, because the LSC can’t find any trace of it. And then again, two weeks later, by fax and DX because the LSC has no record of having received it. This time, they might send it to the appeal panel. Who lose it. Can you send it again? By which time, the hearing and the matter is over. (Through gritted teeth, I must point out that this is not exaggeration for comic effect. This actually fucking happened).

This is Kafka, without the unexpected sex. The sheer scale of unattributable, unacknowledged incompetence would be epic if it had anything dramatic about it. But no, epic only in duration, it grinds on relentlessly, like bloody Wagner. This is the banality of evil, for it is malign, oh yes. There is a dark will underlying all this, a twisted spirit that hates light, laughter, kittens and litigation without frustration and despair.

I hate you LSC, there I’ve said it. I hate you and what you’ve made me become. (Exit weeping).

Now we are One.

Published
by
NL
on 3 June 2007
in law blogs and blogging
. 11 Comments

Looking back in the archive for an old post, I realise to my astonishment that this blog is one year old. Granted, the years do whip past more rapidly as there are fewer of them left, but blimey, where did that one go?

One answer to where that one went is 165 posts. That’s more than one every three days, not including holidays. I begin to see what Charon QC meant when he described Nearly Legal as ‘a prolific blogger’. I really must get out more.

But it has been quite a year, both personally and for UK legal blogs.

The events of Nearly Legal’s year are all there in the archive. One of the benefits of a backup digital memory being no need to reminisce at length, I’ll say no more about it.

This blog seems to have started up at what was apparently the tipping point for a lot of people, as pretty large numbers of legal blogs began appearing soon afterwards. A lot of student blawgs, yes, but also some barristers, some fewer solicitors and a very few firms, the PJH and  Impact blogs most notably. Of course, I claim the credit for all this. Apres moi, la deluge.

The success of Lawblog 2007, despite my absence, is an indicator that, although still pretty far from mainstream, this is a rapidly developing and expanding field. Whether the happy communality of the present will continue into an expanded and no doubt specialised future is, of course, doubtful. But I hope it does.

And for the next year of Nearly Legal? That is far too forward thinking. For the time being, I’ll stagger on and see what happens. Much like the legal system at present.