Housing law news and comment
Very very busy and very tired, I currently come home and just stare blankly at the demanding voracious maw of the blog monster-child. Being too shattered to come up with anything to stuff down its greedy gullet, I can only feel guilt at its piteous cries of abandonment. It’s like Eraserhead, honest.
Which is one way to say that I may not be posting for a while, depending. But I will at some point soon-ish, hand on heart.
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Sorry for another Times story reference, but I felt myself slipping into bewilderment with this story. Third party financing for bringing a case, OK. But it is then denied that there is any resemblance to encouraging personal litigation because:
Helping one company to sue another and possibly profiting from it is simply not the same thing as helping the victim of a car accident to sue the driver at fault. One is a personal dispute that may have involved tangible human suffering; the other involves a business managing commercial risk.
Eh? Colour me stupid but what, precisely, is the difference? “I fund you to bring a case and take a cut of your winnings” is strictly disallowed in personal claims, but should be allowed in business claims because…? Apparently it is ’simply not the same thing’, although both (hopefully) end in damages.
The rest of the article attempts a comparison with ‘forward contract’ arrangements, which strikes me as simply bollocks. Third party funding is not about minimising risk – because not taking legal action in the first place is about minimising risk.
Let us be honest – third party funding is exactly like ‘no win no fee’, it is about assessment of risk and according returns on investment. The only difference is that third party funding takes its rewards from the winner, where a CFA takes it from the loser. Frankly this article smells of special pleading and obfuscation. But what do I know, I’m not a commercial lawyer. I’m sure commercial lawyers will love third party funding.
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Now call me a cynic, but how much like PR nonsense does this article in the Times about the programme for the Bar Conference 2007 sound?
Ah, yes. Human Rights pervade all aspects of the profession, that and an ability to export legal services. Well yes, acting for vulture funds indicates a remarkable regard for human rights, so no contradiction there.
The organiser of the conference, Catherine Addy, a ‘young’ Chancery practioner is apparently terribly au courant with human rights. Heavens knows how it affects a Chancery practice, but never let it it be said that a lack of practical knowledge impedes a member of the bar. I’m also delighted to see that a concern for rational argument has won out over seeking desperate reaction-prodding sensationalism by inviting Melanie Phillips to a panel discussion.
If somebody wishes to inform me how Human Rights inform a Commercial or Chancery Bar practice, or indeed the practices of a large part of the Bar, other than the obvious ones, I would be delighted to be put straight.
In further shock news, ‘I had no problem gaining access to the Bar’ says the comprehensive educated, northern, Cambridge graduate Chancery Barrister organising the conference. ‘As one of the themes of the conference is access to the Bar, I don’t feel at all used as a token’, she didn’t say.
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This has nothing to do with law, but sometimes a personal howl of frustration must be let loose.
The topic is crappy internet service providers. To be specific, Pipex Internet. I am a Pipex subscriber, although not for very much longer. I have been for years. It used to be a reliable and not overly expensive provider for a 1Mps ADSL connection.
Over the last year or so, things have gone badly wrong.
First was the upgrade fiasco. With the introduction of new subscriptions and the promise of ‘up to’ 8Mps connections, I was naturally interested in transferring – paying less for a faster connection. The online upgrade application page was mysteriously ‘coming soon’ for months. Eventually I called. It appears my connection has been Local Loop Unbundled (LLU), where Pipex take control over the equipment in my local telephone exchange. Ah, I thought, surely this is a good thing. Haven’t all the internet providers been telling us that LLU would enable them to upgrade the connections far more easily and provide a better service?
Not according to Pipex. They couldn’t upgrade the LLU equipment to an ‘up to’ 8 Mps connection because of ‘technical problems’, although the remainder of the BT controlled exchange was already at 8 Mps. When would these ‘technical problems’ be resolved? They had no idea, there was no projected timescale. So, I asked, was I in a worse position that if I had a BT account or a non-LLU account? Yes, they said. Why was I paying more than their 8 Mps offering then? They agreed to reduce the price of my account to the mid range 8Mps account price (I wanted to retain the unlimited useage). Did they upgrade my account to a 2 Mps one, which the current equipment supports? No.
Fine. Begin researching about switching.
Three months later – a few days ago – I received an email stating that, as I had not responded to ‘previous communications’ about a missed direct debit, my account would be cancelled in 10 days unless the problem was sorted. I had received no previous communications, either by phone or email.
I called the next day – but to the main number because this ultimatum looked like a phishing attempt. After 21 minutes on hold, (I timed it and have a record), I found out that it was a credit card expiry date issue. Fine, easily sorted. But why was the first I knew about it an email threatening disconnection?
It’s an automated email.
I guessed that, but why does it refer to previous communications?
There was a first email.
When? I did not receive it.
It’s an automated process.
Well, it failed.
Anyway, now you have sorted the payment out, your account will be taken off suspension.
Suspension? What suspension?
It was suspended this morning.
I knew nothing about this. There was no warning.
It was in the first email.
I didn’t receive the first bloody email
Sorry about that. The account should be unsuspended after 2 hours. you will need to restart your router.
I get home some 5 hours later. Restart router. Nada. Restart router. Nada.
Call Pipex, explain situation.
Yes it is on the list to be unsuspended, it will be done within 24 hours.
I was told 2 hours.
Yes, 2 to 24 hours.
So where is it on the list?
Within 24 hours.
The connection came back up about 11.30 pm, so I suppose it was only 11 hours.
What can I say, at least without spitting invective. I can’t blame the call centre monkeys, I can only blame the stunning incompetence of Pipex in managing, organising and running both their customer service and their technical departments. What I have had from them is cheap, lazy nonsense. They were happy to take my money for an over priced, out of contract, out of date connection, but they can’t actually put any effort in to sort out their own technical cock-up on the LLU or to make sure their automated ’service’ systems actually work. Plus they resort to an automated threat (that resembles phishing) at the earliest opportunity. I’m a litigator, I don’t respond well to threats.
In the face of this colossal arrogance and abrogation of responsibility, I’m off to a service provider that actually provides a service. I await the conversation with Pipex’s rentention department with interest, as they are already on record as fibbing to people that no other service provider will accept a transfer of their LLU accounts. Not all will, granted, but there are plenty of exceptions.
A pity. Pipex used to be a good company. Still they were purchased by Tiscali, so there should be no surprise that it is now crap in all regards.
16/08/08] Comments on this post are now closed. But think on, Pipex, think on.
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In one of the least surprising outcomes of a CPS consideration of merits of prosecution since, oh let’s say the cash for honours flasco, ‘Klara and Edda bellydancing’ has been decided to be ‘not indecent‘.
So, a photo previously ‘investigated’ for indecency in 2001 and found not indecent then, that has repeatedly been published in the UK, and that was to be exhibited in a contemporary art gallery has required a 6 week investigation to be ‘cleared’. Stunning work.
Perhaps it took 6 weeks because the prosecutors had apparently to address the utterly metaphysical dilemma of whether ’standards of propriety’ had changed since 2001. Is there no minimum period for the re-consideration of standards of propriety? Could it conceivably be a month by month or week by week task? What if there is a long trial? Could standards of propriety have changed by the end of the trial? And if so would the CPS be under a duty to disclose the change in standards?
However, the CPS did give deliver the understatement of the week:
Even if the photograph was now considered to be indecent, a defendant would be able to raise a legitimate defence, given that the photograph was distributed for the purposes of display in a contemporary art gallery after having been deemed not to be indecent by the earlier investigation.
That much was clear from the beginning, so what the hell was everybody wasting their time for? And the great unanswered question, why did the idiots at the Baltic call in the noted cultural critics of the Northumbria Police for their views in the first place?
A farce in a teacup, frankly.
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Just a quick note on the Admin Court decision in Gilboy, R (on the application of) v Liverpool City Council & Anor [2007] EWHC 2335 (Admin).
The Anti-Social Behaviour Act 2003 modifies Housing Act 1985 and 1996 to allow a secure tenancy to be changed to a ‘demoted tenancy’ via an application by the Council to the Court for a ‘demotion order’, on the basis of anti-social behaviour. The demoted tenancy has lesser security and rights. In fact, in most ways, a demoted tenancy is functionally identical to an introductory tenancy.
The only difference is that where a local authority decides to move to possession proceedings against a demoted tenancy, there is a necessary procedure to follow, set out in Part V Housing Act 1996. Under s.143E(2)(d) the tenant must be notified of their right to seek a review of the decision to bring possession proceedings. The nature of the review is set out in s.143F:
(1) Before the end of the period of 14 days beginning with the date of service of a notice for possession of a dwelling-house let under a demoted tenancy the tenant may request the landlord to review its decision to seek an order for possession.
(2) If a request is made in accordance with subsection (1) the landlord must review the decision.
(3) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with a review under this section.
(4) The regulations may include provision -
(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision;
(b) as to the circumstances in which the tenant is entitled to an oral hearing, and whether and by whom he may be represented at the hearing.
(5) The landlord must notify the tenant -
(a) of the decision on the review;
(b) of the reasons for the decision.
(6) The review must be carried out and notice given under subsection (5) before the date specified in the notice of proceedings as the date after which proceedings for possession of the dwelling-house may be begun.
There are Regulations governing the review process, but of limited importance to the issue here.
The challenge in this case was to the validity of the review of the decision being carried out by another officer of the local authority – a challenge brought under Art 6 – ‘right to independent and impartial tribunal in determining civil rights and obligations or criminal charge’.
McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129 decided that a similar review provision for determining Introductory Tenancies did engage Art.6, but that there was an adequate remedy in Judicial Review.
The argument here was that McLellanhad been superseded by Tsfayo v UK [2007] ECHR 656, an ECHR case which said the Housing Benefit and Council Tax Benefit Review Board was not an independent tribunal as the officers of a local authority sat in judgment on the decision of the local authority on the entitlement to HB payment by the local authority. On this argument, the 2004 Regulations were incompatible with Art 6.
Outcome…
Mr Justice Burton was deeply sceptical that the review provisions even engaged Art 6, as he did not consider them the review decisive of civil rights and obligations – that was properly the realm of the County Court to determine the tenancy. However, bound by McLellan, Art 6 was at issue.
However, Tsfayo didn’t bind the Court and McLellan was convincing in the response to Art 6. The review decision was not a finding of fact, but of reasonableness of the decision to pursue the possession order. Even if Tsfayo and McLellan did conflict, the Court would be obliged to follow McLellan as precedent.
Suggestions that in this case the review made findings of fact were beside the point, as in order to breach Art 6, the constitution and form of the review must be at fault, not the specific findings of an individual review.
As Judicial Review remained a remedy for an unreasonable review decision, pace McLellan, no breach of Art 6. In any case, Mr Justice Burton added:
that even if I had found that the decision made by Mr Morris infringed the Claimant’s Convention rights under Article 6, I should not have made a declaration that the Regulations are incompatible. There are two reasons for this. The first is that the Regulations do not compel a local housing authority to instruct one of its officers to carry out the review. It follows that it could instruct someone other than one of its officers (such as an officer or another authority, or a solicitor or barrister instructed for that purpose) to do so. Whether that would be satisfactory to the authority in relation to the policy considerations involved in the decision is another question, which is irrelevant to the question of incompatibility. Secondly, I do not see how the requirements of section 4(4)(b) of the Human Rights Act 1998 could be satisfied.
Personally, I think there are some dubious elements in this decision, on binding precedent in particular. However, the basic thrust is clear. Art 6 covers (fact finding) tribunals, determinative of rights and obligations, not reviews of reasonableness. Hmm.
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Right then, Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000.
The scene in a nutshell. A statutorily overcrowded household, in terms of Part 10 of the Housing Act 1985, s.326, which gives rise to a criminal offence under s.327
A homeless application under s.175 “entitled to occupy” and s.175(3) “reasonable to continue to occupy”. A negative s.184 decision, and review decision and s.204 appeal decision on the basis that it was reasonable for the appellant to continue to occupy the property.
The whole case turns on the Code of Guidance issued by the Secretary of State in respect of Part VII applications. This guidance states:
“8.26. Section 177(2) provides that, in determining whether it is reasonable for a person to continue to occupy accommodation, housing authorities may have regard to the general housing circumstances prevailing in the housing authority’s district.
8.27. This would apply, for example, where it was suggested that an applicant was homeless because of poor physical conditions in his or her current home. In such cases it would be open to the authority to consider whether the condition of the property was so bad in comparison with other accommodation in the district that it would not be reasonable to expect someone to continue to live there.
8.28. Circumstances where an applicant may be homeless as a result of his or her accommodation being overcrowded should also be considered in relation to general housing circumstances in the district. Statutory overcrowding, within the meaning of Part 10 of the Housing Act 1985, may not by itself be sufficient to determine reasonableness, but it can be a contributory factor if there are other factors which suggest unreasonableness.”
So, faced with statutory overcrowding in a household, does the local authority have to accept that the continued, overcrowded, occupation is unreasonable to occupy on the basis that a continuous criminal offence is committed?
Or, following the Guidance – which does not have statutory force – does the local authority have the right to consider local housing conditions in deciding whether continued occupation is reasonable, via s177(2) HA 1996 and the Guidance?
The Court of Appeal decides that the Guidance does, ’surprising though it may be’, express the law. At para 20:
There are various ways to test that conclusion. If, as I have indicated, suitability and reasonableness are related concepts, then statutory overcrowding should receive similar treatment whether looking at it for section 175(3) or section 210 purposes. If not, then the ludicrous result is that if statutory overcrowding compels the conclusion that it is not reasonable for the applicant to continue to occupy the accommodation, then there is a duty to find alternative accommodation for her but that accommodation may be suitable even if it is overcrowded. In those circumstances the applicant would be bound to accept overcrowded accommodation and could consequently return to the local housing authority the next day and complain that the property may be suitable for section 210 purposes, but it would not be reasonable under section 175(3) to continue to occupy it. The applicant could once again demand to be rehoused. This could go on forever. That cannot be right. If, therefore, by virtue of the express recognition in section 210 that overcrowding does not necessarily render the accommodation suitable, it must follow if the statute is to be given a coherent and consistent construction that overcrowding does not necessarily prevent it being reasonable for the applicant to continue to occupy the accommodation for section 175(3) purposes.
And therefore, at para 24:
In those circumstances the Housing Review Officer was fully entitled to look at the prevailing circumstances in the borough, including the unfortunate extent of overcrowding in the borough, and, consequently, having properly had regard to the family’s personal circumstances and ill health, he was not acting illegally or irrationally in concluding that it was reasonable to require Mrs Harouki and her family to continue to occupy the flat until it was her turn to be rehoused under Part 6. I see no error of law in his decision. Judge Knight QC was correct in his admirable ex tempore judgment to dismiss her appeal. I must now dismiss this appeal also.
For those of us who have looked to statutory overcrowding as a ‘reasonable to continue to occupy’ issue, this is a serious warning. If local conditions are usually overcrowded, then the Local Authority may well be able to make a negative decision on the basis of HA 1996 s.177(2).
This is not helpful, as, for instance, it means that a local authority in a bad area has a lesser responsibility than one in an area without such a housing problem. If a Local Authority can’t offer a better accommodation than the one that the applicant is occupying in terms of overcrowding, then there is no housing duty seems to be the upshot. Hmm. Not good.
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Thanks to the US Above the Law for the light relief, a Miami law student gets his comeuppance on some US Court show. This does faintly remind me of a local District Judge in attitude, if not in anything else at all.
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A very long, frantic and difficult day, without any lunch, but successful in a way that means the last week and a half of intense busyness was, in retrospect, worth it. I can’t give details, not only for reasons of anonymity, but because matters aren’t yet signed and sealed.
But can I just say – Good Result.
Oh and to my friend the opponent, don’t mess us around for over a year again, because it costs.
I might be able to catch up with a few posts now, depending.
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I’m flat out at the moment. Even my usual posting windows of a Saturday or Sunday have seen me either too tired or working to manage a post. So all I can manage is to point to two cases for Housing people’s attention, to which I will return when I have time.
In the Admin Court
Gilboy, R (on the application of) v Liverpool City Council & Anor [2007] EWHC 2335 (Admin)
Article 6 Human Rights and demoted tenancy possession decision reviews.
In the Court of Appeal
Harouki v Royal Borough of Kensington & Chelsea [2007] EWCA Civ 1000
Overcrowding, homelessness and Part VII applications.
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