Archive for March, 2008

Allocation Judicial Review 2

Published
by
Nearly Legal
on 30 March 2008
in Housing law
. 2 Comments

This is the second of the two judicial reviews of Southwark’s allocation scheme and arguably the more significant of the two. (The first case is in the previous post.)

R(Faarah) v Southwark LBC [2008] EWHC 529 (Admin) concerned Southwark’s managment of the transition from a points based scheme to a CBL scheme and specifically the award of priority dates in the new Bands.

The applicant had 20 points under a medical assessment pior to the introduction of the CBL scheme in September 2005. Southwark’s points based scheme had four categories - 10, 20, 30 points and ‘urgent medical need’. The CBL has four bands, A to D (no priority). The applicant is now in Band 2 for cumulative medical and overcrowding needs. The dispute was over the priority date - which gives priority over later entrants to a Band in bidding and is therefore of considerable importance.

The applicant was (after some intervening notifications) given Band 3 in August 2006, with a priority date of 19 September 2005, the date of the introduction of the CBL scheme.

However, Southwark had not set the priority date for all applicants transfered to the new scheme to be the date of the introduction of the scheme. many had priority dates from their application under the prior scheme.

The published scheme said that registration date within the Band was the priority date. The applicant challenged on the basis that this was not the policy actually being operated.

Southwark maintained that there had been a transitional scheme in which those with 21 or more points under the old scheme were placed in category A and given a priority date of the date under the old scheme they were awarded 21 or more points. Those with 10-20 points were in category B and given no medical priority under the new scheme, N was for those with 10 points or less.

There was a broader challenge on the rationality of Southwark’s CBL bidding scheme, on the basis that by permitting only one bid in a cycle, housing was allocated according to random choices of the applicants, not greatest need.

HHJ Mackie QC held that:

  1. There was no difference in the wording defining the requirements for 20 points under the old scheme and Band 3 under the CBL scheme. The Defendant was not entitled to treat people differently at different times when the criterea were the same.
  2. The scheme gave some applicants priority from the date they qualified for a band even before September 2005, but failed to give those who reached Band 3 priority back to the date upon which they qualified for that band (20 medical points). This was not published and was not in accordance with the published scheme and was therefore in breach of s167(8) Housing Act 1996.
  3. The broader challenge on the rationality of the bidding scheme was without merit. All systems for allocating resources throw up anomalies.

Of the two cases, Faarah is likely to have the most impact, as the unlawful practice potentially extends to a large number of people with 20 points medical priority under the old scheme. It also highlights the need for local authorities to ensure that transitional provisions actually accord with published allocation criterea.

It also appears from both cases that broader challenges to the rationality or fairness of Choice Based Letting schemes are in for a very steep up-hill struggle.

Counsel for the applicant was Robert Latham, instructed by Southwark Law Centre.

Allocation Judicial Review 1

Published
by
Nearly Legal
on 30 March 2008
in Housing law
. 0 Comments

I’ve been waiting to post on the outcome of two judicial reviews of Southwark’s allocation scheme for a while, hoping they would appear on BAILII. They haven’t, but Garden Court have briefly set out the cases in their 24 March bulletin. So, here is the first of two posts on these cases.

R(Yazar) v Southwark LBC [2008] EWHC 515 (Admin) concerned Southwark’s inclusion in the Choice Based Letting (CBL) Scheme of a Band 1 (highest) priority for a ‘Social Services Nomination’. The applicant had been recommended for Band 1 priority by her social worker, but housing and social services then denied that a nomination had taken place. Southwark initially denied that there was a formal process for social services nominations, then stated that there were criteria that were in addition to those given in the published allocation scheme. Southwark did not give reasons for refusing a social services nomination until immediately before the hearing of the judicial review, in the form of a witness statement.

The challenge was on three grounds:

  1. The scheme failed to identify procedures for making social services nominations and the persons by whom decisions are made;
  2. The decision not to make a nomination in the applicant’s case was unlawful in that there were no proper procedures for determining the nomination, issuing reasoned decisions or offering a right of review
  3. The scheme failed to provide a rational mechanism for ensuring that an assessed need for a ground floor property with a garden is given a head start over those with no such assessed need.

On 1. Mr Justice Simons held that the Allocation Scheme was defective in relation to the making of social services nominations. Until the clarification in evidence, the basis on which such nominations were made, and by whom, was unclear to the point of obscurity. Defendant to add a clear explanation to the published scheme.

On 2. the Court held that, although a local authority was not bound to express its reasons for not making a nomination in every case, it was bound to give its reasons if asked. However, given changes in the applicant’s circumstances, it was not necessary to quash the decision in her case.

On 3. the Court was not prepared to entertain what could be construed as a challenge to the Choice Based Letting scheme as a whole, Lambeth LBC v A. and Lindsay [2002] EWCA 1084 followed.

The rejection of the broader based challenge was a common theme in this case and the next, R(Faarah) v Southwark LBC.

Counsel for the applicant was Robert Latham, instructed by Anthony Gold Solicitors.

S v Floyd and a disability defence

Published
by
Nearly Legal
on 27 March 2008
in Housing law
. 7 Comments

This post started as a response to a detailed comment by David Giles, Counsel for Floyd in S V Floyd, on my case report. But his comment and the report by Michael Paget mentioned in my last post - to the effect that Floyd contained a clear rejection of the very idea of a DDA ‘defence’ rather than compensation claim - have sent me back to have another look at S v Floyd. I recommend a look at David Giles’ comment, then reading this post (which is rather hurried and may well be edited over the next day or two)…

David, I agree that Malcolm was distinguishable from Floyd on the non-relation of disability to non-payment of rent point. That by itself would not mark a breach with Malcolm.

I think the distinction made between a statutory mandatory claim and the ‘contractual’ (actually common law - thanks J) claim in Malcolm doesn’t stand up, because if the suggestions in the Floyd judgment were carried through, it would make no difference - both would be lawful possession claims with no DDA ‘defence’.

I noted the scepticism to the idea of a DDA ‘defence’ at 48. and meant to comment on it in my original post. But as I did say in that post, I think that the Court has got rather confused about the very idea of a ‘defence’.

The judgment in Floyd does not put forward an argument that gets around s.22(3)(c) DDA 1995. If the eviction is unlawful by reason of being unjustified discrimination, what does the Court suggest? The implication of 48. would be a claim for compensation. So, the County Court is to aid an unlawful act by making the possession order, but it is OK because the ex-tenant then has a claim for compensation? This makes no sense.

The objection appears to be that an otherwise lawful possession claim cannot become unlawful by operation of the DDA. But that is the point of the DDA in general - otherwise lawful acts are unlawful if they constitute disability discrimination.

It is hard to escape the logic of Malcolm, once it is acknowledged that an otherwise lawful possession claim can constitute ‘less favourable treatment for a reason related to disability’ in comparison to ‘others to whom the reason would not apply’, to paraphrase s.24(1)(a).

The Floyd judgment does approach this in 57 and 58, as you say, by reference to Taylor v OCS Group Ltd [2006] EWCA Civ 702. Taylor v OCS at 72 says:

“In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer’s mind) which is related to the employee’s disability.”

This is a major difference to the interpretation of ‘for a reason’ set out by the Court of Appeal in Novacold. The judgment in OCS distinguishes Novacold by saying that the treatment in Novacold was clearly for a reason related to disability, so the judgment offers no aid on ‘reason related to…’. But this dismissal doesn’t actually stand up. If it did then the whole logic of the comparator set out in Novacold would make no sense at all, as it is based on an analyis of what the term ‘reason’ actually means, and it is not the meaning that is set out in OCS.

The stakes become clear at this point. It is not, in the end, about whether the DDA applies to mandatory possession claims. As far as I can see Floyd gives no reason at all why it would not - while not actually having to decide the issue in this case. The argument - or significant difference of position - is about the interpretation of ‘for a reason related to his disability’ tout court, pitting OCS against the line of Novacold judgments, including Malcolm and Romano, and affecting the entire application of the DDA.

But even if the OCS approach was right, and I’m sure the House of Lords will hear it in Malcolm shortly, that would not stop the DDA having potential application in mandatory possession claims. For example, what of a s.21 possession that could be shown to have been undertaken because the landlord did not want a disabled person to remain in the property? Is the only recourse of the ex-tenant to be to a claim for compensation, while the County Court aids an unlawful act?

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series: :Next in series

HALPA almost live.

Published
by
Nearly Legal
on 26 March 2008
in Housing law and law blogs and blogging
. 2 Comments

As an experiment, nearly live blogging from the HALPA AGM fell foul of having my mobile turned off. So this is ‘on the way home from HALPA’ blogging instead. Useful talks on Housing Benefit, particularly on the new Local Housing Allowance, in force from 7 April.

Also news that the draft Housing bill due for passage in the autumn contains retrospective provision that all tolerated trespassers still in occupation would gain `replacement` tenacies, and that the Courts would be given discretion to allow either landlord or tenant to claim on breaches of tenancy agreement during the retrospective period of trespasser status. So historic disrepair would be in! No word on RTB status though.

There was also a report on S v Floyd which means I have to go back over the judgment for another careful look. I may have missed something very important, according to Michael Paget.

Nothing for the weekend

Published
by
Nearly Legal
on 20 March 2008
in Housing law, law blogs and blogging and whatever
. 2 Comments

It is about time for a break - 13 detailed posts in the last two weeks, coupled with a frantic time at work, has left me lacking oomph, as devoid of oomph as an omphless thing on a bad day. So there will be nothing more here until after the holiday weekend.

Meanwhile, James Stark of Garden Court North has put up a briefing note on the rejection of Payne v Cooper in Porter v Shepherds Bush (he is not happy). Hat tip to Tony Fearnley.

And if you are in search of further housing goodness, a new blog has just started up. Housed is by the person who has been commenting here as ‘housinganger’, a CLS housing caseworker at a CAB. Housed is still unpacking the box marked ‘kitchen’ in search of the kettle, but should be good. I am delighted to be able to welcome another housing blog to the UK law blog scene

At this rate of increase, by the end of 2009, the world will be ours (laughs maniacally). Assuming, that is, that William Flack manages to get his blog working again and finds the time to post something…(hint hint).

DDA and mandatory possession

Published
by
Nearly Legal
on 20 March 2008
in Housing law
. 5 Comments

S v Floyd [2008] EWCA Civ 201 is a Court of Appeal case in which the Disability Discrimination Act 1995 is considered in relation to a mandatory Ground 8 possession claim by a private landlord.

In some ways, there is nothing particularly surprising in the case - the Court found that the DDA was not engaged as there was no relation between the appellant’s disability (OCD in this case) and the rent arrears. No DDA defence had been raised at first instance, nor should it have been ‘obvious’ to the Judge that there may be one. In fact the appellant had given specific reasons for withholding rent to the first instance Court that were not connected to the disability.

On that basis, there was no need to inquire further into discrimination (including comparator) or justification.

So far, nothing out of step with Lewisham v Malcolm. As I have always maintained, against some scaremongers, Malcolm did not mean that a possession claim against a tenant with a disability was discriminatory per se. ‘Relation’ of disability to reason for eviction is a real test. As I also suggested in discussing Malcolm, appeals raising a DDA defence for the first time would get a tough hearing.

However, there is an issue raised by the Court that is of significance, but to my mind not adequately considered or argued. Does a DDA defence - (presumably ‘defence’ in the terms of Romano, rather than a DDA claim) apply to mandatory possession proceedings.

The sole judgment distinguishes Malcolm as follows:

  1. As for Malcolm, although neither judge had the benefit of its guidance, as it was decided subsequent to their decisions, a number of points may be made showing that it does not govern this case.
  2. First, the mandatory provisions of section 7(3) of the 1988 Act, which give the tenant a statutory right to a possession order against the tenant who is more than 8 weeks in arrears with the rent, did not apply in Malcolm. The local authority relied on its contractual right to possession.

Nothing further is said on this point, as the Court concludes that no disability discrimination arose in this case. But at 71 the Court asks the House of Lords to answer the urgent need for clarification on the scope of the 1995 Act.

I don’t see how Malcolm can be so simply distinguished, certainly without any further reasoning. I suspect that the Court is complicating issues for itself by casting disability discrimination as a ‘Defence’ to a possession claim, particularly in relation to circumstances where there can be no defence by statute (mandatory grounds).

Romano said that an argument of discrimination could be raised as a defence, under resonableness, in discretionary possession claims (at least against secure tenants), but this has led to it being conceived of as a defence per se, where Romano actually said that this was a matter of practical efficiency, rather than having to mount a counterclaim of unlawfulness.

Malcolm thoroughly confused matters by discussing disability discrimination as a ‘defence’ of unlawfulness against a non-discretionary possession order. In some ways, it would have been clearer if Malcolm had said that in such circumstances it should be conceived of as a counterclaim of unlawfulness, although, in practice, formally making the counterclaim would surely be unneccessary.

So when, as here, the Court is troubled by the idea of the DDA adding a defence to a ‘lawful’ mandatory claim, where statute actively rules out a defence, one answer is that the DDA doesn’t add a defence. It adds a counterclaim that the mandatory claim isn’t lawful, which, for reasons of practical utility is treated as a defence in hearing the claim.

There were some other issues on the District Judge not adjourning the hearing - principally on the basis that an issue of the appellant’s capacity was raised. The Court of Appeal found that:

There was nothing before the District Judge to suggest that S did not or might not understand the comparatively simple and straightforward issues raised in the proceedings on which his input was likely to be necessary.

And there was nothing before the Court of Appeal to suggest lack of capacity, either.

The Court’s ‘Exceptional Circumstances’ power to adjourn even a mandatory possession claim was not considered or exercised by the DJ. The Court of Appeal said

i) Non-receipt of housing benefit was not an exceptional circumstance, North British Housing Association v Matthews [2004] EWCA Civ 1736,;

ii) No application was made to the DJ for an adjournment on exceptional circumstances.

And that was pretty much it. There may be a further case, Bernstein v Tate, on s.21 possessions soon. Malcolm is to be heard in the week of 28 April by the House of Lords.

Article Series - Disability Discrimination

  1. Catching up - Disability Discrimination and possession
  2. Disability and tenancy - More on Malcolm
  3. On impotent landlords and disability.
  4. Disability discrimination - the comparator
  5. DDA and mandatory possession
  6. S v Floyd and a disability defence
  7. Adjourning pending Malcolm in the Lords
  8. And now Malcolm!
  9. Malcolm in brief
  10. Comments on Malcolm in the Lords
Previous in series: :Next in series