Archive for February, 2008

The hopeful LiP

Published
by
Nearly Legal
on 29 February 2008
in whatever
. 1 Comment

Although the energy to do proper case comments has deserted me until tomorrow, I couldn’t resist this exchange, which is just about all that is reported of Bedi, R (on the application of) v London Borough of Hounslow [2007] EWHC 3311 (Admin)

  1. MR JUSTICE COLLINS: Now, Mr Bedi, as we have discussed, and for the reasons I have indicated, I am afraid I am going to have to refuse permission. As I say, you at least have the advantage that it has not cost you anything, at least not cost you anything so far as court fees and other side’s fees are concerned, and leave it to you to decide whether you wish to pursue it any further. But you can indicate, if there is any problem raised at any lower court, if you do decide to pursue any claim — and I am not saying that you have a good claim; I have not gone into that — that I have indicated that in my view quite clearly this is a matter that is not a public law claim and which should be pursued, if it is to be pursued, as an ordinary civil claim.
  2. THE CLAIMANT: Thank you, my Lord.
  3. MR JUSTICE COLLINS: All right?
  4. THE CLAIMANT: My Lord, you have mentioned I have not lost anything. I would ask your Lordship to grant me to this cost because I’m litigant in person and I believe I’m entitled to it.
  5. MR JUSTICE COLLINS: No, you are not entitled to any costs. You have not succeeded.

Suddenly…

Published
by
Nearly Legal
on 29 February 2008
in Housing law
. 5 Comments

there are quite a few cases to cover.

Ahmad, R (on the application of) v London Borough of Newham [2008] EWCA Civ 140  on determining priority in allocation schemes.

G, R (on the application of) v London Borough of Southwark [2007] EWCA Civ 1506  on accommodation under s.20 Children Act 1989.

London Borough of Lambeth v Debrah [2007] EWCA Civ 1503 on refusal to stay or suspend an ASB possession order.

I also want to do a note on a case reported in the Gazette, but not on Bailii yet, Mansfield DC v Langridge (2008) CA (Civ Div).

But it has been a very intense week and my brain stopped working at about 6.45 this evening, so I’ll try to get notes up tomorrow.

Considering Equality of Opportunity

Published
by
Nearly Legal
on 28 February 2008
in Housing law
. 0 Comments

Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government& Ors [2008] EWCA Civ 141. A Court of Appeal judgment on appeals of refusal for planning permission for the retention of mobile homes on green belt land by Irish traveller families. The appeal failed, but what is particularly interesting is the examination of section 71(1)(b) of the Race Relations Act 1976. The EHRC intervened in this appeal, so the issue of ‘due regard’ to s71 “the need to promote equality of opportunity between persons of different racial groups”, in public authority decision-making got a good hearing.

In the only judgment, Lord Justice Dyson rejects the need for an explicit reference to s.71(1), or required form of words, instead following R (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin). At 37:

The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed.

That said,  a reference to the requirements of s.71(1) and associated codes and guidance would be good practice.

In this case, the decision-maker had clearly had regard to and balanced the relevant issues.

Holmes to the Lords

Published
by
Nearly Legal
on 24 February 2008
in Housing law
. 0 Comments

Thanks to Mark P for noticing that Holmes-Moorhouse v LB Richmond is going to the House of Lords. Richmond sought and have been granted permission. I think this could be a tricky one, not just on the residence/staying with issue, but also on the differences between residence orders by consent rather than contested orders. No hearing date set yet.

The Crown as squatter

Published
by
Nearly Legal
on 20 February 2008
in Housing law
. 2 Comments

A more than a little unusual Court of Appeal judgment on adverse possession has just been handed down. Roberts v Crown Estate Commissioners [2008] EWCA Civ 98. I won’t go into the details - it involved a challenge to Crown possession of an area of foreshore and river bed of the Severn by the purchaser of an ancient manorial title. The result - the Crown can gain property by adverse possession. ‘The same law of limitation applies to both Crown and citizen’.

Time limitation on disability discrimination defence?

Published
by
Nearly Legal
on 19 February 2008
in Housing law
. 5 Comments

This is definitely a specialist question, for which I seek housing people’s opinions.

A semi-hypothetical situation:

A suspended possession order made against the client, a secure tenant, two years ago on grounds of rent arrears. Client didn’t attend hearing. Client had contact with mental health services at the time, but it is now clear, on expert’s report, that the client has for some time, including the relevant period, suffered from serious mental health problems and that these are, at the least, related to the the accrual of rent arrears (benefit problems).

Post Malcolm, or even post Romano, there is a prima facie case for an application to set aside the SPO either as unlawful as Disability Discrimination, or as client has a defence and didn’t attend hearing for a good reason.

But.. Schedule 43 Part 2 para 6(1) DDA 1995 says:

6 (1) A county court or a sheriff court shall not consider a claim under section 25 unless proceedings in respect of the claim are instituted before the end of the period of six months beginning when the act complained of was done.

Section 25  states that

(1) A claim by any person that another person—

(a) has discriminated against him in a way which is unlawful under this Part; or

(b)…

may be made the subject of civil proceedings in the same way as any other claim in tort or (in Scotland) in reparation for breach of statutory duty.

(2) For the avoidance of doubt it is hereby declared that damages in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not they include compensation under any other head.

So, the question is:

Does an application to set aside in extant possession proceedings where the client is a tolerated trespasser  amount to a claim for the purposes of s.25 DAA, such that Sch 3 Part 2 6(1) limitation would apply?

My sense is no - there is no free-standing claim or claim for damages involved. It is a defence to a possession claim, not a even a counterclaim. But I am not at all sure. So, opinions very welcome, particularly if they go beyond ‘yes’ or ‘no’.