Archive for February, 2008

Green Ink and old Olivettis

Published
by
NL
on 11 February 2008
in job and whatever
. 5 Comments

With my usual and frankly uncanny ability to be a couple of days ahead of the zeitgeist, I posted on litigants-in-person a few days ago, only to see the Guardian do a feature piece on LiPs today. Granted they put a little more effort into it, and actually interviewed people and things like that, but we say pretty much the same things.

In addition, my post is much, much shorter, and so, brevity being not only a virtue but a mark of elegance, I can only pity the poor Guardian having to play catch up by substituting a modicum of effort and research for pith.

The Guardian article is actually quite an interesting piece. It cites a 2005 survey that found many that LiPs considered that:

lawyers were not necessary or not best placed to advance their interests. They saw themselves as more factually expert in their dispute and more able to manage their case than a lawyer - or they just wanted to “have their say”. Less constrained by legal notions of relevance, they could advance arguments or raise issues that a lawyer would not.

But of course, they can’t, because that is not how the Courts work. The result is, as the survey showed, that:

those who handle their own litigation make more mistakes than lawyers do - and more serious mistakes - and that the outcomes of their cases are generally worse than for those who are legally represented.

Nonetheless, their numbers are on the increase, driven by income limits on legal aid. Apparently Family matters have the largest proportion, which should come as no surprise.

There is one quote, from an Appeal Court Judge, that eloquently sums up the view of the LiP at appellate level. Forgive me quoting at length:

There is no sight more depressing than that of a litigant in person, borne down by frustration, anger and plastic bags filled with unsorted paper, staring up at the judge in the expectation of some quietus. What he wants, no court can give: some public acknowledgement and satisfaction for a deeply felt grievance, some release from the anger and misery induced by a resentment growing ever stronger as the years have passed. If only someone had listened and appreciated the hurt early on.

But by the time the litigant in person gets to court it is all too late. The time for listening has passed. The court, often faced with vituperation expressed in green ink or inadequate spacing between the lines typed on an old Olivetti, cannot hear what may have been a genuine cause for complaint because the complaint is lost in the sound and fury, and the litigant won’t listen because no one has been prepared to listen to him in the years gone by.

What is needed is not only understanding but therapy. The courts grapple with the former, but they inevitably fail to provide the latter.

This is unfair to many LiPs, who are doing it because they have to. However, the desperate and hopeless appeal, made in the conviction of the utter rightness of the cause, is the mark of the archetypal LiP, and, going by my visits to the Admin Court office or the Court of Appeal office, there are no shortage of those at present. The real question is why are they always in front of me in the queue?

The CAB at the RCJ is also mentioned in the piece. Given the number of what might be euphemistically described as ‘interesting’ calls we get from people who say that this CAB has ‘referred’ them to us, their daily work must be extraordinary.

Later on, I ended up browsing the list of vexatious litigants at the HMCS site. Now there is a documentary waiting to happen. How about:

ARNOLD, Dorothy Mignon (aka Gracie) who became a vexatious litigant on 17 December 1956

or BEBBINGTON, Ann Marjorie (aka EASTON, Ann Cholmondeley) - 31 January 1969

or O’NEILL, Thomas (aka Lord Charles Leslie Falconer of Thoronton) - 9 June 1998

The idea is going cheap…

Oliver Twist

Published
by
NL
on 10 February 2008
in Housing law and law blogs and blogging
. 2 Comments

Charon QCNot being satisfied with putting the boot in only once to Caroline ‘Workhouse’ Flint, I’ve had another go, this time in a podcast with Charon QC, now available for your listening pleasure.

I hope and trust that this is giving the proposals more attention that they require.

New news

Published
by
NL
on 9 February 2008
in Housing law and tech
. 0 Comments

I’ve been having a bit of a play. You may notice a new page tab for “Housing News Feeds” above. This has the RSS feeds of various housing related sites and blogs, so they will be constantly updated with any new items. Hopefully, it will be worth checking whenever you stop by.

The problem is that so few sites actually have RSS feeds for their news pages. I’ve done what I can with various tools that try to turn fixed web pages into RSS feeds, with limited success.

Remarkably, the Communities.gov.uk site is very well provided with news feeds and Inside Housing has one. But other organisations, like Shelter, don’t have a feed, even on their ‘latest news’ page. I haven’t been able to scrape Shelter’s news page with any success. Somewhat perversely, the Shelter Chief Exec has a blog with RSS feed, so I’ve included that. After considerable trial and error, I’ve managed to successfully scrape Shelter’s news page into a feed.

Chambers often provide updates, but none of these that I could find have feeds either, and in the case of Garden Court, once again I can’t successfully turn it into a feed it was tricky to turn it into a working feed. Arden Chambers ‘eflashes’ list turns into a feed- but the links are to PDFs.

Come on, people. RSS is hardly bleeding edge any more, and just think how effective it would be to have your news releases and briefings instantly circulated to subscribers and further disseminated by helpful elves like me.

This is a work in progress, so any helpful suggestions welcome. When I have some more time, I’ll have a further go at the CSS styling of the lists and layout, which has room for improvement.

Later on. I’ve changed the page scraper for Arden Chambers and other pages, because Feedity was adding adverts. Naughty, they don’t tell you about that. Unfortunately the result for the Arden Chambers feed is not picking up each single entry. I blame their downright erratic html. The css styling is going to be even more tricky now, dammit. I’ll also see if I can remove the branding of a particular page scraper. Branding removal from the page scraper is now done.

Birmingham v Aweys

Published
by
NL
on 7 February 2008
in Housing law
. 10 Comments

Hot off the press - judgment released today.

Birmingham, apparently intent on suicide, appealed the judicial review decision in Aweys. Birmingham City Council v Abdishakur Aweys & Ors [2008] EWCA Civ 48. They lost, badly, on all counts.

Birmingham argued that accommodation that was not suitable under section 175(3) could still be suitable for a limited time for the purposes of section 210 after a duty under section 193 has been accepted. The court held otherwise, the definition of ’suitable’ has to be the same before and after the housing duty arose. Awua (R (ex p Awua) v Brent LBC [1996] 1 A.C. 55) did not help Birmingham because the accommodation in that case was acceptable albeit short life housing.

Birmingham also argued that Collins J had erred in his ruling that the allocation scheme was unlawful because he held that Birmingham a) could not take financial considerations into account in making policy, and b) he purported to determine priorities between the homeless himself. The court said a) no he didn’t, and b) no he didn’t. One other technical point turned out to be based on a typo. And that was pretty much that.

This does leave a rather difficult practical situation, as a council will be in breach of duty unless it finds suitable accommodation immediately someone is accepted as homeless. While this can be waived by consent, this is not something that the council can rely on. Collins J had recognised this by giving a guideline of 6 weeks as a reasonable period in which to secure alternative accommodation. LJ Arden’s judgment worries about the impact of immediate effect, but declines to construe the statute as including ‘a reasonable time’ for the accommodation to be secured. On the other hand, she doubts whether a mandatory order would be made by the court where a council genuinely cannot secure suitable accommodation immediately.

I’m guessing that Mike McIlvaney, the Community Law Partnership and Jan Luba QC are happy bunnies tonight.

By the way, the Court limits its discussion of ’suitability’ to the issue of the homeless at home, because there are two pending cases Richards v Ipswich BC and Manchester CC v Moran, both concerning women’s refuges, that may address the issue of suitability. Something to watch out for there.

They’ll have to wait

Published
by
NL
on 6 February 2008
in Housing law
. 0 Comments

In a sudden rush we have:

Court of Appeal:

Greenwood Reversions Ltd. v World Environment Foundation Ltd. - and - Madhav Mehra [2008] EWCA Civ 47 on forfeiture of lease.

House of Lords:

Majorstake Limited (Respondents) v Curtis (Appellant) [2008] UKHL 10 on definition of premises in the Leasehold Reform, Housing and Urban Development Act 1993.

And one I missed….

Boss Holdings Ltd v Grosvenor West End Properties and Another  [2008] UKHL 5 on the metaphysical question when a house is a house and when it isn’t.

Detailed notes to follow, but frankly, I’m too busy and too tired to do notes tonight. Meh. I’m sure you can wait 24 hours or so. Tomorrow, maybe the day after. But then Aweys v Birmingham has a Court of Appeal judgment due any day (what the hell were Birmingham appealing?) which I’ll need to do in depth…

Let’s just say that at some point over the next 1 to 4 days, there will be some commentary on these cases and, maybe, Aweys in the Court of Appeal, up on the blog.

Caroline Flint speaks her brain

Published
by
NL
on 5 February 2008
in whatever
. 6 Comments

Caroline Flint being brightIn a time when the shortage of social housing is at something of a crisis point, the housing minister has some thinking to share with us. Unfortunately, it is this. (Also BBC news page and the Guardian).

Let us make the rash assumption that this proposal to eject work-shy malingerers from their council tenancies is not an empty piece of vote catching cynicism, in fact let us go so far as to assume she might actually mean it. What we are then left with is something very silly indeed, lacking as it does both carrot and stick for those subject to this return of the un/deserving poor distinction.

The only carrot on display (apart from actually being allowed to have a council tenancy) is employment. That is not necessarily so attractive to those involved as it is to the government. Anyone earning above a very low threshold has to pay a large proportion,or all of their housing costs (rent, council tax), and of course there are the additional expenses of childcare, transport, tax credit overpayment deductions etc.. Tax credits don’t cover the difference, particularly for lowest paid.

Many of the people I see who have fallen into rent arrears have done so precisely because they have taken a job without having carried out the complex calculations on benefit eligibility, likely tax credit level etc. necessary to work out if they can afford to do so. It is unsurprising that they can’t do this, as it is apparently beyond the wit and capability of most government departments and benefit authorities. The tenant’s income then turns out to be lower than that needed to replace the removed benefits. In fact, in one of the ironies all too common at the benefit/low pay nexus, it is often being employed that results in Council tenants being evicted. Is the Minister proposing that the minimum wage should be flexible enough to include required housing costs? I thought not.

Sticks are also in short supply. Flint suggests the prospective tenant should sign up to  an enforceable contract to seek work, which would result in eviction if they breach. Of course this would not apply for those ‘clearly’ [sic] incapable of seeking work. If you are vaguely or perhaps mistily incapable of seeking work, tough.

So, we can assume she proposes to re-write both Part VI and Part VII routes to tenancies - via housing list/bidding scheme and homeless application. Oh and remove the statutory duty on local authorities to provide accommodation to the eligible homeless. And then ensure that the DWP and the local authorities are integrated enough to properly decide on when someone has breached the contract. And then face down the inevitable human rights challenges to setting such a condition on access to housing and on a continued tenancy (particularly where no such condition applies to private sector tenancies).

Is this going to happen? No. Unsurprisingly, Downing Street seems to be backing away from the idea at speed, with the Voltaire manoeuvre - ‘I might not adopt this as a firm policy but it is a good issue to have a debate about’. Rather worryingly, Grant Shapps the shadow housing minister, shows such a firm grip on his brief that he appears to actually believe that:

“Ministers and local councils have a statutory duty to house homeless families with children and so they can’t boot them out of their houses without then providing alternative accommodation”.

Somebody please tell the shadow minister about intentional homelessness quick.

That is the practicality out of the way. I think it is safe to assume that this idiot proposal isn’t going to get off the ground. But that isn’t satisfying enough. Let me be clear that this party apparatchik, who displays a classic new labour route to becoming an MP of NUS officer, policy wonk, equal ops officer and union researcher, has come up with a foul and loathsome idea, one that surely a literature graduate should realise has been tried and failed repeatedly since the early 19th Century, that being separating the good poor and the bad poor.

Social housing, like the rest of the welfare state, is based upon the principle of need, not merit.(Good heavens, I’m having to remind a labour minister of the basic principles of the welfare state). It is supposedly there for those who, for whatever reason, find themselves in need.

It may be a deceptively simple ethics, but its genesis was complex and founded on long experience that attempting to distinguish between meritorious need and undeserving need was complex, inevitably unfair and unjust, at the mercy of politics and the whim of those who themselves had no call on welfare provision, and just plain unworkable.

The obvious comparison for Flint’s brain spasm is with the calls for the obese not to get NHS treatment for related illnesses, under the guise of encouraging people not to be obese.

There is a kernel of truth in there, of course. There are areas of a dramatic concentration of poverty and deprivation. These same areas are usually suffering from a lack of services, support, training etc.etc.. Flint should be aware of the difficulty of changing this, and some of the steps required as she has just come from being a junior Employment minister. But rather than actually deal with that, let’s blame the tenants.

Flint, again classically new labour, mistakes cause and effect. Having been ’surprised’ to find that social housing, which is there for people with a low or no income, is occupied largely by people with a low or no income, she decides that clearly the problem is that these people have actually got access to housing.

Perhaps we should have a contract for ministers, to actively seek good policy ideas and not succumb to the temptation of Daily Mail ‘proposal’ farts. When they breach this contract, they have to leave their office. After all, it is the hard working decent people of this country who are paying for them to stay there. Why shouldn’t these ministers have to actually do some proper thinking rather than sitting around appearing on TV all day?

And I’ve just found Polly Toynbee agrees on all counts. This is a daft idea [mp3]. I’m not sure how delighted I am by that.

[Edit 6/02/08. William Flack picks this up and compares Flint to Edwina Curry. Miaow, but true.]

Do you remember the first time?

Published
by
NL
on 4 February 2008
in job and law blogs and blogging
. 5 Comments

Pupil barrister Scribbler encounters a litigant-in-person in action for the first time, and he sounds like a classic of the genre, issuing against multiple defendants ’so they could come to court to explain themselves’, regardless of whether they actually had much to do with the case.

Of course, it has to be said that there are people who conduct their own cases effectively and with considerable ability, but many are on a crusade for justice, ignoring the eminently sensible cautions set out by Jacquig at Bloody Relations (for family cases, but the general principles apply elsewhere), and all too often the lawyers on one side end up more or less managing the whole process. As barristers must recall with a sinking heart, they are expected to assist an opposing litigant-in-person in court (not of course in making their case, but in the conduct of it in court).

But in these days of shrinking availability of legal aid for many matters, and of extremely limited financial eligibility for it, the lawyer’s traditional attitude to litigants-in-person perhaps smacks too much of special pleading.

We tend to assume that access to justice means first of all access to lawyers. For many, many people, those not abjectly poor enough to get legal aid, not rich enough to afford a solicitor let alone a barrister, this will only raise a bitter laugh. If it isn’t suitable  for a CFA, then the only option is DIY. Access to justice firstly and properly means the opportunity to take one’s case to a court and I suspect we will see a lot more litigants-in-person, beyond their current  stamping grounds of the small claims courts, LVT and assorted tribunals.

[Edit 5/02/08. And now the sine qua non of the litigant-in-person, Heather Mills prepares for a five day High Court hearing in her divorce.]

Tenancy and occupation through employment

Published
by
NL
on 3 February 2008
in Housing law
. 0 Comments

Wragg & Ors v Surrey County Council [2008] EWCA Civ 19 is an appeal on the refusal of some Right to Buy applications, but the main issue is when a tenancy falls under Schedule 1, para 2(1) Housing Act 1985, which provides:

“… a tenancy is not a secure tenancy if the tenant is an employee of the landlord or of –
a local authority,
…
and his contract of employment requires him to occupy the dwelling-house for the better performance of his duties.”

Some notes:

An assertion in the contract of employment that the acommodation is provided for the better performance of the employee’s duties is not sufficient to satisfy this provision.

The proper approach is a two stage test. First - is occupation of the accommodation required by the contract of employment? Second- is this for the better performance of the duties?

‘Better performance of duties’ raises a question of fact, outside the terms of the contract.

Where it is clear that occupation is for the better performance of duties ‘it would be surprising if the omission of this express requirement from the contract meant that the statutory exception did not apply.

‘For the better performance’ is not a question of subjective intention of the parties.

“The statutory provision should be construed as including an objective test:  “for” is to be read as “to enable”, the essential question being whether the required occupation of the property is intended to promote, and is reasonably capable of promoting, the better performance of the employee’s duties. (para 44)”

Para 46 sets out what is to be considered in the objective test:

“the court will look at all the circumstances in deciding whether the required occupation is for the better performance of the employee’s duties.  Those circumstances will include the reasons given for the imposition of the requirement to occupy the property and the considerations taken into account in imposing that requirement, scrutiny of which is likely to be particularly important in determining whether occupation of the property was reasonably capable of leading to better performance of the employee’s duties.  It will also be relevant to consider the factual history in so far as it casts light on whether occupation of the property was or was not reasonably capable of leading to better performance of the employee’s duties.  But I would stress that the test is not whether, in the particular case, the requirement to occupy the property has in fact led to the better performance of the employee’s duties.   Thus, if occupation of the property was reasonably capable of leading to better performance, it is immaterial that the particular employee has not used the property in such a way as to produce that better performance in practice. “

The test is to be applied to the situation as at the date notice is given under the 1985 Act (or the relevant date in other proceedings)

“Better” is not a synonym for ‘efficent’ or ‘proper’ performance of duties. It is a comparator, the comparison being with the situation if there was not a requirement of residence in the property concerned. However, there is no requirement for the occupation to be necessary for the performance of duties, unless the residence condition is being implied into the contract.

Adverse possession, Art 1 and acknowledgements

Published
by
NL
on 2 February 2008
in Housing law
. 0 Comments

Ofulue & Anor v Bossert [2008] EWCA Civ 7 deals with an adverse possession case prior to the Land Registration Act 2002.

Some notes:

The (then) law on adverse possession does not breach Art.1 Protocol 1, Pye v United Kingdom [2007] ECHR 44302/02 applied. In order not to fall under the Pye margin of appreciation, a case’s results would have to be so anomalous as to render the legislation unacceptable.

Having made a defence to possession proceedings that the occupant is a tenant does not prevent the occupant from having the requisite intention to possess. A person believing himself to be a tenant may still be in adverse possession. The necessary intention is an intention to possess, not necessarily an intention to exclude the paper owner,  Lodge v Wakefield MCC [1995] 2 EGLR 124.

A defence that the occupant is a tenant does not constitute an acknowledgement of title for the purposes of s.29 Limitation Act 1980 in that, although there may be an acceptance of title, there is not an acknowledgement that the title holder has a right to possession. Such a defence does not ‘re-start’ the 12 year period.

Also worth reading for an interesting discussion on the admissibility of  ‘without prejudice’ correspondence at the end of the judgment.