Archive for July, 2007

Legal Aid, one Judicial Review down…

Published
by
NL
on 23/07/2007
in Various (non-housing)
. 0 Comments

The Society of Asian Lawyers and the Black Solicitors Network judicial review of the LSC proposals has been settled after an adjournment on the basis that the LSC carry out a full retrospective and prospective cumulative Race Equality Impact Assessment. (See the Law Society press release here).What Price Justice

Top work all round. The assessment should have some interesting results, unlikely to be good news for the LSC.

Also, there is an early day motion set up. EDM 1961 calls on the government to postpone the regulations and meet with all stakeholders to find an alternative future for legal aid. Get your MP to sign it.

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Waiting for Counsel

Published
by
NL
on 17/07/2007
in Various (non-housing)
. 0 Comments

(With apologies to Samuel Beckett, Literature, and everyone else)

Act 1
Darkness. Lights up. Trainee sitting on a worn vinyl bench, to the right a board on the wall, with sheets of tattered A4 paper pinned to it. To the left a swing door. Trainee wrestles with zip on case with wheels next to bench. Sits back exhausted. Looks over at the board.

Trainee: Listed for 10.30 [pause, eyes to the front] In the 10.30 list. [slumps further down on bench] Fifth on the 10.30 list. [reaches towards case] Can’t be helped and the usher [looks longingly to the left] said [mutters] two applications and two CMCs. [Long pause, reaches down case and tugs at zip, fails. Sits back and sighs. Brightly] No family cases. We will be heard. [Checks watch. Looks around. Hopefully] We. [Pulls mobile phone from pocket, looks at it, shakes head and puts mobile on case]. Just an interim application [pause] interim [laughs shortly].

Client, facing away, half raises into view over back of bench.

Client: [groans, drops below back of bench]

Trainee: Don’t go off on me now, We may need you. [Hopefully] We. [leans forward to look at mobile phone, shakes head, sits back] and we will be heard [long pause, looks at board]. A necessary step [pause] one we are required to make, in order to [stops. looks longingly to the left] in order to take the next step [leans back over bench] there is movement still. [pause, slumps forward]. He attends, can’t ask more than that. [reaches for case, tugs at zip, fails. Sits upright] the robing room! [pause, slumps. Mutters] there or elsewhere, not here yet.

Client: [groans, out of view]

Trainee: He wearies [shrugs] he hopes to see the end. [slumps further] There must be hope of an end. For there has been a beginning [pauses, looks at case] or an opening at least. And that is a start, for there must be a beginning for there to be an end at all. That step we have accomplished to the satisfaction [pause] no, not that, the acknowledgment of all. [Brightly] So we have begun. [Anxiously] We [leans forward to look at mobile, shakes head, sits back]. There is then a possibility of an ending [pause, considering] Perhaps. All things are possible, the rest is mere quibbling over probability, a chalking up of the odds, better left to bookies and divinities. [Pause] Shall I mention Sisyphus? [pause] No, save that for later. Only in extremis, remember that.

Client: [whimpers, out of view]

Trainee: [mutters] Or if not an ending, a closing [kicks case, stubs toe.] And a drawing up of accounts. That would suffice. [Pause. Looks longingly to left] I swear I saw an usher before. [Pause. Firmly] We are on the list. [checks watch, looks quickly around. Nervously] We. [starts to lean forward to look at mobile, halts, sits back]

Lights down. Darkness

Act 2
Lights up. Scene as before. Trainee alone, lying on bench

Trainee: [despairing sigh] The afternoon list. [pause] I suspected as much. Once something has not happened then it is too much to hope that it will not not happen again.

Client: [hand appears on top of bench, clutches weakly then falls back]

Trainee: [feebly] We are on the list. [Glances around. Hollowly] We. [Case on wheels falls over].

Lights down.

End.

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Double-take Corner

Published
by
NL
on 15/07/2007
in Various (non-housing)
. 0 Comments

We can categorically state that we have not released man-eating badgers into the area.

And

“MR JUSTICE PETER SMITH: No, if you are going to say my conduct in court is quite remarkable, you have to say why. In which way do you think my conduct has been remarkable?
“MR CRAMPIN: It is a remarkable proposition that a judge should cross-examine a witness in the basis of what is in the judge’s head, which no-one else has seen.

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Brownfields to Brown homes?

Published
by
NL
on 15/07/2007
in Assured Shorthold tenancy, Housing law - All and secure-tenancy
. 0 Comments

I’ve been adopting a wait and see approach to the Brown government, but if this report in the Observer is true, it is most certainly a good thing. Councils are apparently to be permitted to build more housing stock and possibly have rent income released back to them to do so.

I’ve called for this before. The reasoning  is simple. Housing Associations can’t and/or won’t invest the capital on anything like the scale required. The private sector was always going to be hopeless in providing housing for the low income (and only the most utterly deluded of Thatcherites ever thought otherwise). Historically and for the foreseeable future, it takes state support via local authorities to provide sufficient half-decent homes.

Also interesting is a suggestion of a crackdown on Buy to Let properties being left empty. That is going to be an intriguing one to pull off.

We now expect a housing green paper in a week’s time. I can hardly contain my excitement.

Now, to make this housing lawyer (to be) very happy, how about implementing the Law Commission Renting Homes report (pdf) via its Draft Bill (pdf) at the same time? C’mon Yvette, talk to Jack and Gordon

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Publawyer on public function

Published
by
NL
on 13/07/2007
in Community care and Housing law - All
. 0 Comments

Just a quick note that Publawyer has posted an excellent discussion of YL v Birmingham and the broader impact on thinking about functional public authorities for the purposes of the Human Rights Act. Sure, it’s a bit late, but he’s been away. It makes a good counterpoint to Head of Legal’s view.

Personally, I side with Publawyer. As the duties and activities of public authorities are increasingly contracted out to private sector and not for profit organisations, and often at arm’s length to boot, an open view of ‘public function’ strikes me as increasingly required. Head of Legal’s worries that something as simple as being a regulated industry, or a private body in any way supported by public funds, e.g. housing benefit, would come to fall under the HRA, strike me as unsustainable.

For example, housing benefit may sometimes be paid directly to the private landlord, but the entitled person is the tenant. This is significantly different to a payment made to a care home by a local authority to provide services which are pursuant to a duty of the local authority. One is a simple subsidy of the tenant, the other is the contracting out of a service provision which the authority has a duty to provide. But for the moment, I guess I’m on the losing side.

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The horse's mouth

Published
by
NL
on 12/07/2007
in Homeless, Housing law - All, Licences and occupiers and Possession
. 0 Comments

I was delighted to see some comments from members of the Community Law Partnership on this blog today, adding to my notes on some of their Court of Appeal cases.

The comments are detailed and very helpful, adding a lot to my scanty commentary, so, for the housing lawyers amongst us, it is well worth reading their comments on my posts on

Shala v Birmingham

Aweys v Birmingham

Omar v Birmingham

and now

Doherty v Birmingham (House of Lords bound, apparently)

And to the CLP people, lovely to see you here, what took you so long? And where is your website?

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McGonagall

Published
by
NL
on 08/07/2007
in Various (non-housing)
. 0 Comments

Corporate Blawg’s Blawg Review is up. I believe the word that I am groping for is “awe”, possibly “shock” as well, but definitely mostly awe.

[For anyone bewildered by the title of this post, enlightenment may be found here]

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UK 'surprisingly interesting' shock

Published
by
NL
on 05/07/2007
in Various (non-housing)
. 0 Comments

There I was, coasting along in a post-blawg review Euro Dragonsmugness, when this post on Appellate Law & Practice popped up as an inbound link:

There is a Blawg Review going on at Nearly Legal. The guy is a Brit, but he says a lot of interesting things about criminal procedure and enforcement of judgments in the dark continent of Europe, where dragons dwell.

I adore that. If I can figure out how to have different blog taglines depending on the geographic origin of the browser, “A Brit, but says interesting things” would greet every US reader, credited to Appellate Law, American, but sometimes amusing ;-)

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Be good to your mother

Published
by
NL
on 05/07/2007
in FLW case note, Homeless and Housing law - All
. 0 Comments

So, Denton v London Borough of Southwark [2007] EWCA Civ 623.

This won’t take long, as the case rests almost entirely on its own facts.

Applicant, a 21 year old male, applied as homeless after being thrown out by his mother. First decision, upheld on review, was that he was intentionally homeless because his bad behaviour had led to his mother telling him to go.

The County Court apparently thought a bid of leeway should be given to a 21 year old man living with his mum – some friction and chafing at rules was to be expected, and the decision had erred in not considering the behaviour as part of a history of friction between mother going back to when he was 18 or so. The reviewer had also failed to consider the mother’s situation and actions as a cause of his leaving. (The Court heard the argument that the son was entitled, as an independent person, to distance himself from his mother’s rules) Decision overturned as Wednesbury unreasonable.

The Court of Appeal gave this idea a sound spanking and send it to bed without any supper. The rules set by the mother for living in the home were not excessive or unduly harsh. It would have been reasonable for the applicant to remain in the property if it were not for his behaviour, and the mother was indeed prepared to have him back if he behaved. The Authority’s failure to make further detailed enquiries was not unreasonable and did not give a basis for a public law based challenge. And, the Court emphasised, this judgment did not set any general principles for dealing with situations where a young person leaves or has to leave the family home.

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Shala v Birmingham City Council

Published
by
NL
on 04/07/2007
in FLW case note, Homeless and Housing law - All
. 0 Comments

How did I miss this one in the Court of Appeal lists? I swear it didn’t appear in the Bailii list of recent judgments for 27 June 2007. Shala v Birmingham City Council [2007] EWCA Civ 624

This is a very significant decision on Local Authorities’ use of medical advice in homeless decisions, particularly review decisions. The actual matter is too reliant on its facts to go into at length here, but the issue at stake was priority by vulnerability, primarily through mental health issues – depression and post-traumatic stress disorder. As anybody in the field knows, these are very difficult cases to challenge, and usually much turns on the reports from GPs and, where possible, specialist psychiatric doctors.

Here a review decision and negative County Court appeal were overturned. The key points were the response to submitted medical reports, and the reliance on the Council’s medical advisor in the s.202 review decision.

Significant points to note in the judgment:

The Council’s medical advisor was not a psychiatric specialist and lacked any specialist training in the field. Dr Keen is a GP who:

also offers, through a business called NowMedical, medical advice to housing authorities and social providers, a number of whom he lists, as well as to NASS and the Home Office. (Para 18).

Authorities must not presume that in setting a report from a non-specialist against a qualified psychiatric specialist they are comparing like with like, Khelassi v Brent LBC [2006] EWCA Civ 1825 (Para 22). Dr Keen’s advice was accepted as expert evidence in Hall v Wandsworth LBC [2005] HLR 23, however, absent an examination of the applicant, the advice should not be taken as expert evidence of the applicant’s condition. (para 22).

If the medical advisor has not examined the applicant, the Authority must take this into account in making its decision. (Para 23) The authority and advisor may need to consider asking the applicant to consent to an examination, or if not, then consider a discussion between advisor and the applicant’s doctor(s), with applicant’s consent. (Para 23)

The Authority must recognise that the decision as to whether the statutory tests of need are met is theirs, not their medical advisors, and this requires a proper consideration of medical evidence submitted on behalf of the applicant where it differs from that of the medical advisor. (Para 16 & 20)

There is an interesting section on medical reports being directed towards the legal criterea for vulnerability, particularly the Pereira test. At para 21:

… Medical and other advisers, while it is not their task to take the local authority’s decision for it, are helpful only to the extent that they furnish material within their professional competence which addresses issues which the local authority has to decide. Local authorities are doing applicants, and themselves, a service if they direct medical (and legal) advisers’ attention to these issues. But they are not entitled, nor even well advised, to demand that the opinion or advice be couched in terms of their eventual decision. Medical practitioners, on the other hand, need to direct their opinions as nearly as possible to the issue which the recipient has to decide, and may well need to be told by their patients’ lawyers what that issue is. There is no single right way of dealing with this, but in our view there is no harm and some good in medical advisers directly addressing, if appropriate in exact terms, those matters within their professional competence which the local authority has to make a decision about, so long as both they and the local authority recognise that it is for the latter to make its own appraisal of every opinion in the light of the available diagnostic and evidential material.

As far as I can see, this suggests that Authorities’ medical advisors should not be requested to deliver opinions as verdicts on vulnerability under Pereira, while applicant’s advisors may need to direct the applicant’s doctors to what the issue at stake actually is.

The case also indicates a benchmark for what may constitute vulnerability by reason of depression and post-traumatic stress disorder. The terms used by the applicant’s doctors are worth noting.

The judgment is well worth reading in full. These notes are after a quick read-through, but I suspect there is much more to absorb. Well done to the Community Law Partnership (and Counsel E. Fitzpatrick) for pursuing this one. This could be very useful indeed.

[And there is another homeless CoA decision today, a note on Denton v Southwark to come tomorrow]

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