Archive for March, 2008

Hierarchy of Need

Published
by
NL
on 16 March 2008
in Legal Aid and job
. 4 Comments

I haven’t posted about the Shelter staff dispute until now, partly because I was hoping it would be resolved and partly because I had little to add.

I have been prodded into posting by a comment by Mark P. As he observes, Shelter management are in the vanguard of the NfP sector in ‘ensuring competitiveness’ in the chase for future competitive bidding for LSC franchises. Shelter’s management rather disingenuously argue that as the frontline services are the major recipient of state funding, it is frontline services that should bear the brunt of the ‘efficiencies’ (link goes to a .doc, courtesy of Nik Nicol).

What Shelter are doing today will inevitably be a model or rationale for the NfP sector (and quite possibly private firms as well). It is therefore of much broader significance than ‘just’ Shelter, if that wasn’t enough.

After 2 days of strikes (4 and 10 March), things have clearly got nasty, with tales of high pressure individual interviews pushing the new contracts under threat of dismissal.

But there is still amusement to be had. Witness Adam Sampson, Shelter CEO, claiming support, via a link, to be found in a post by Bridget Fox, Lib Dem candidate for Islington South. Then note that Fox’s post doesn’t offer support for Shelter management, it just opposes Ken Loach’s call to stop donations. Next, observe Fox backing frantically away from having to say anything contentious in the comments to the post as she is confronted by a couple of Shelter staffers explaining the dispute and highlighting heavy-handed treatment by management.

It appears that this was the most supportive link that Mr Sampson could find.

Follow-ups

Published
by
NL
on 13 March 2008
in Housing law and Legal Aid
. 0 Comments

There have been some very interesting comments on posts from the last week, and further news on the stories, making a catch up post worthwhile.

In no particular order…

I am delighted that Tony Fearnley commented on the Helena Housing v Molyneaux & Mower post. Tony, whom a quick google reveals is from Stephensons Solicitors, acted for Molyneaux and Mower (good work there) and also brings news that Knowsley v White has been joined with L&Q v Ansell for hearing in the House of Lords, listed for 3 days in October 2008. Helena Housing and Payne v Young is getting a lot of attention at the moment (Garden Court North have an article out -PDF). I have been told that the presiding Judge at one of my local county courts has said at a hearing (regrettably not a trial on the point) that he found Payne v Young very interesting indeed, that he would be bringing it to the attention of the other Judges at the Court and hoped it would feature in Ansell in the Lords. I also know a few solicitors who have pounced on the case and are actively using it already. I really want the time to have a proper look at Payne v Young, but it won’t be for a few days, at least.

Colin Yeo comments on Not for Profits in trouble, post fixed fee, mentioning the difficult circumstances of the South West London Law Centre. (Guardian story). The Gazette today has an article giving more detail, with a survey suggesting 20% of Law Centres are in major trouble and a further 49% in serious debt (article not available online yet). Discussions about amending transitional provisions are apparently taking place, but are late and may not be enough. This is very, very serious indeed. The LSC’s helpful comment was that they ‘had seen no evidence that law centres take on more complex work than other providers’ and ‘fixed fees were an important part of achieving value for money’. Yeah yeah, whatever.

Starting from my post on an unclear mention in Inside Housing, it quickly became clear via the comments that R (Weaver) v London & Quadrant has been a full-on JR application on grounds that Housing Associations (or L&Q at least) are public Mauthorities exercising a public function as landlord, and that a policy of using Ground 8 is unlawful (Thanks to J). The substantive hearing took place in late February. I wait with trembling anticipation.

Lastly and considerably less seriously, I hear there is some speculation being bandied as to my secret identity. Heavens above, how immensely flattering. I blush with pleasure. But I am a creature of mystery and shadow, at least in my Fritz Lang-addled imagination, and must perforce remain in the misty darkness…

Right to Buy and suitable alternative accommodation

Published
by
NL
on 13 March 2008
in Housing law
. 0 Comments

Where a possession order is sought under Ground 16 Schedule 2 Housing Act 1985 (under-occupation on succession), what happens to the tenant’s right to buy? And is this a factor in weighing the suitability of alternative accommodation and the reasonableness of making an order?

Manchester City Council v Benjamin [2008] EWCA Civ 189, a Court of Appeal judgment out today, has some answers, but far from all of them.

The situation was, briefly, that the Defendant had succeeded to her mother’s secure tenancy of a six bed house. The only occupants, post succession, were the Defendant and her one child, although evidence was heard that she intended to foster. The Claimantserved an NSP on grounds that the property was more extensive than the tenant reasonably required, the Claimant applied under the right to buy shortly afterwards.

At first instance, there was no dispute that the property was more extensive than required. Alternative 2 and 3 bed accommodation was offered (but this was due to be transferred to a housing association under a stock transfer some months later).

The Defendant maintained that the alternative property was neither suitable nor reasonable and counterclaimed for an order compelling the Council to convey the property to her.

Proceedings were under s. 85 HA 1985:

“(1) The court shall not make an order for the possession of a dwelling house let under a secure tenancy except on one or more of the grounds set out in Schedule 2.

(2) The court shall not make an order for possession–

…

(c) on the grounds set out in Part III of that Schedule (grounds 12 to 16) unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect;

The Defendant held that if her tenancy of the property was ended by possession order, she would not be entitled to the right to buy at the new property until a fresh qualification period had expired (5 years) or, if the new tenancy was an assured tenancy, under more limited and less advantageous terms.

S.121(1) HA 1985 provides:

“The right to buy cannot be exercised if the tenant is obliged to give up possession of the dwelling-house in pursuance of an order of the court or will be so obliged at a date specified in the order.”

The first instance Judge held that this meant that the Defendant would have to start afresh and the 5 year period would not have expired by the time of the transfer to the HA. This in itself was enough to render the alternative accommodation unsuitable.

On reasonableness, the Judge found that the Council had not provided sufficient evidence to make clear that possession was required for the better managment of its housing stock, or the length of the waiting list for such properties. Instead it looked like the Council was simply seeking to avoid the loss of the property under the RTB provisions and, following the statement of Neuberger J in Basildon District Council v Wahlen [2006] 1 WLR 2744, held this was an impermissible jsutification.

At first instance the claim was dismissed and an order for conveyance made. INitial permission to appeal by the Council was refused, and again on the papers, but a renewed application to Arden J suceeded.

The Court of Appeal, in three separate judgments, found that it was both reasonable to make a possesion order and the alternative accommodation was suitable.

S.121(1) did not mean that the right to buy was extinguished by a possession order under Ground 16. Apparent findings to the opposite in Basildon v Whelan and in Kensington & Chelsea RLBC v Hislop [2004] HLR 434 were not part of the ratio of the decisions in those cases. LJ Dyson found that:

56. The use of the definite article in the phrase “give up possession of the dwelling-house” is significant. It is in respect of that dwelling-house that the right to buy cannot be exercised. If it had been intended that an order to give up possession should be a bar to the exercise of the right to buy any dwelling-house, then the subsection would have been drafted rather differently. It would have provided that, where a tenant is obliged to give up possession of a dwelling-house in pursuance of an order of the court, the right to buy cannot be exercised in respect of any dwelling-house.

Sir Peter Gibson gave the lead judgment, finding that the right to buy was not extinguished and the the first instance Judge had not performed the balancing exercise of ‘reasonableness’ properly. In particular, it was not right to set out a stark distinction between the better managment of the housing stock and the wish to avoid a reduction in that stock, particularly in the circumstances of a single person and child occupying a six bedroom property (para 37)

Sir Robin Auld agreed with the conclusions of the others, but considered that there was an issue that had not been addressed, at first instance or in the appeal, which is whether the loss of the right to buy would, per se, render alternative accommodation unsuitable. The circumstances, he considered, may well arise where alternative accommodation is offered that does not carry the right to buy (para 47).

I must confess myself puzzled here, as para 1 of Part IV of Schedule 2 requires that any alternative accommodation proposed must be consist of premises to be let as a separate dwelling under a secure tenancy. Surely, it would also therefore carry the right to buy?

So, as far as I can see, loss of right to buy is gone as a defence to Ground 16 possession claims, but, on the plus side, the right to buy already established is preserved into the new tenancy.

Not for Profits in trouble?

Published
by
NL
on 10 March 2008
in Legal Aid and job
. 3 Comments

Madeleine Bunting has an editorial in the Grauniad decrying the civil legal aid reforms, in particular for the effect on the Not for Profits, as well as the ‘paralegal in call centre’ approach.

Apparently Gateshead Law Centre went into receivership last week and Devon (Plymouth?) is on the brink.

As far as I recall, these are both examples of the ‘Not London’ areas that the LSC was insisting would actually see an increase in income from the £171 fixed fee Legal Help. Hmm.

Somehow, I suspect we’ll see more Law Centre closures before too long.

The Pyramid Scheme

Published
by
NL
on 10 March 2008
in Legal Aid and job
. 3 Comments

This post is about paralegals and barristers in legal aid work. Which means that it will mostly turn out to be about solicitors.

The latest Legal Action (March 2008) has a rather dispiriting, but unsurprising piece  on the results of a Young Legal Aid Lawyers’ survey into working practices pay and conditions. For paralegals in legal aid practices, pay turned out to be bleeding awful, with some on as little as £7500 pa. Virtually all were doing casework (over 90%), virtually all received no formal training. Many found themselves in the paralegal/trainee post hell that I encountered nearly two years ago (there being no traineeship, save as a carrot/stick).

Such is is the way of the future. If the current reforms proceed, the paralegal factory is how firms will have to go. A swathe of paralegals, with limited training (and even more limited prospects) doing advice work, with a ’supervising’ solicitor ensuring standards (cough) and picking out the more complicated matters (cough).  Some firms have a version of this in place already, although not mine.

Naturally, I mean no offence to paralegals (I was one for quite some time) when I say that by and large they are just not up to giving detailed adequate advice, spotting essential detail or running cases. It is a matter of training and the time to properly consider what they are doing. There are, of course, many exceptions, but I am talking about a general situation rather than individual practices.

One slightly surprising side effect of this is the effect on barristers. One counsel I was chatting to recently, while grabbing a coffee in lieu of lunch during a day hearing, said that it was a) often noticeable when a brief came from a paralegal, as much of the necessary detail was missing and the overview of the merits and issues of the case absent, and b) Counsel had to spend quite a bit of time pretty much running the case from chambers, giving instruction on the work and documents needed. On the basis that Counsels’ aptitude rarely extends to running cases, I’d agree that this is a bad thing.

Why is this actually about solicitors? Because this displacement of skilled work - to cheap paralegals and via them, unpaid, onto counsel in some cases - is from the work that used to be done by legal aid solicitors. It is the position of solicitors, or more accurately firms, that is key.

Unfortunately, while in most pyramid schemes, broadening the base level results in a increase in income for the top level, that isn’t so here, where broadening the base is a survival tactic for legal aid firms. (One suspects that this base broadening effect will extend beyond paralegals to associate solicitors in due course).

As the YLAL article points out, the impact of the spread of the paralegal factory is significant: one the quality of assistance to clients (whatever anyone says about ensuring standards); on the job role of the supervising solicitors - which is likely to become akin to the PI processing plants; on the next intake of legal aid solicitors (what are the odds of actually getting a traineeship in such a situation?); and even on the work Counsel find themselves doing.

But there will be more ‘acts of advice’, probably, so that’s all perfectly satisfactory.

Making Good and homeless figures

Published
by
NL
on 10 March 2008
in Housing law
. 1 Comment

Via Garden Court’s 10 March 2008 bulletin.

Birmingham (yes them again) have had their tenancy agreement found to be misleading by the Ombudsman in terms of their liability for making good damage resulting from repairs.

Homeless figures are out for the last quarter of 2007. Decreases in both decisions (6%) and acceptances (1%) on the previous quarter.

There are a couple of interesting case reports in there too, not yet reported elsewhere:

Hassan Omar v City of Westminster [2008] EWCA Civ, [2008] All ER (D) 38 (Mar)

and

R(Niypo) v Croydon LBC [2008] EWHC Admin, [2008] All ER (D) 24 (Mar)

both on aspects of homelessness, so read the bulletin…

Birmingham: “Everybody does it”

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

Apparently, Birmingham are still furious about the Court of Appeal decision in Aweys, with the Tory cabinet member for housing showing marked signs of not actually getting it.

In the course of a rant about the CLG offering ‘advisors’ to help with homeless at home duty, the delightful sounding John Lines said:

It is common practice across local authorities to use “homeless at home” to alleviate disruption to families and this practice is acknowledged, recorded and reported by Communities and Local Government.

John, it is unlawful. And any other Council engaging in this ‘common practice’ is acting unlawfully. That Birmingham may not be the only offender doesn’t make it any less, well, unlawful.

Housing Associations and public function to be tested?

Published
by
NL
on 7 March 2008
in Housing law
. 38 Comments

[Edit 30 June 08. The judgment in the following case is now out. For a detailed comment, see this post.]

According to Inside Housing, London & Quadrant are fighting an application for Judicial Review in Susan Weaver v London & Quadrant Housing Trust. It appears that the applicant is making the full-on challenge - that Housing Associations are public bodies - as a defence to a ground 8 possession.

This will be very interesting. Clearly, housing associations can be capable of being public bodies where fulfilling the function of a public body. But the circumstances in which that might be said to be the case have been highly arguable, and in any case appeared to be quite severely limited by the implications of the care home decision in YL v Birmingham in the House of Lords. What isn’t clear from the Inside Housing note is the circumstances in this case. Is it transferred local authority housing stock, for example?

I would have thought that YL v Birmingham would have put a strict limit on any attempt to have housing associations be taken as public bodies tout court, so more details would be good.

Needless to say, L&Q are apparently aiming to fight this tooth and claw. As one of the largest housing associations to use ground 8 in possession claims frequently, I’m not surprised that they are. The reasons for bringing ground 8 possession claims would all too often be susceptible to judicial review.

Much more, of course, when this one reaches a public result.

Inside Housing’s news feed is currently broken on my feeds page and the feed fails to validate, all because of the Q in L&Q. I smell a conspiracy…

Permanent trespassers - a fan letter

Published
by
NL
on 5 March 2008
in Housing law
. 8 Comments

A very interesting case report and article by James Stark of Garden Court North in the current Legal Action (March 2008) presents a possible solution to the permanent trespasser problem, at least in part.

Permanent trespassers are those who have paid off the arrears and court costs of an old style form N28 suspended possession order, so have no chance to apply to vary the terms of the possession order under s.85 HA 1985 (or the HA 1988 equivalents). Marshall v Bradford [2002] EWCA Civ 594, Swindon BC v Aston [2002] EWCA Civ 1850 and London & Quadrant v Ansell [2007] EWCA Civ 326 (see below for previous posts) established this position - no new tenancy created, no possibility of revival of old tenancy.

Now in a Liverpool County Court Circuit Judge decision in Helena Housing Ltd v Mower and Molyneux gives an alternative argument.

The N28 in this case contained the term ‘when you have paid the total amount mentioned, the plaintiff will not be able to take any steps to evict you as a result of this order’.

Payne v Cooper [1958] 1 QB 74 was a Court of Appeal decision. It addressed the extended discretion given to the courts under the precursors to the Rent Acts, which was in terms identical to s.85 HA 1985. Payne held that the effect of a term in an order - that the plaintiff could not evict the defendant as a result of the order if the arrears were paid off - was that the order for possession was discharged, there being no other source of power to make such an order other than the discharge power in the section.

Now that is a very nice and shiny precedent, and the line of descent of the extended discretion through the Rent Acts to HA 1985 is clear enough (see James Stark’s article for precedent decisions on this issue). But what to do about the conflict with the more recent line of Court of Appeal cases above?

At first sight, a County Court case would have to be referred up to the Court of Appeal or possibly the Lords to resolve it one way or another. But, in a nifty piece of footwork, Baker v R [1975] AC 774 sets out that where an inferior court is confronted by two directly conflicting decisions of a higher court, the inferior court was entitled to chose the decision that appeared the most logical. In Mower and Molyneux, the Circuit Judge decided that, given the surely unintended effects of the legislation as interpreted by Marshall v Bradford et al, and the obvious injustice that may result, Payne was the most logical decision.

Helena Housing apparently aren’t appealing and are treating paid up tolerated trespassers accordingly.

Now, whether this provides a satisfactory or widely deployable answer to the permanent trespasser problem is, of course, open to question. To some extent, until the Court of Appeal or HoL get their hands on such a case, it will be down to the individual District or Circuit judges at individual hearings, and that variability is not desirable.

But may I just say Wow.

That is a seriously impressive piece of footwork and James Stark (and his sadly un-named instructing solicitors - do speak up if it was you) have a fanboy in Nearly Legal.

Article Series - Tolerated Trespassers

  1. Tolerated Trespassers - the aftermath
  2. Tolerated trespassers: A Luta Continua
  3. Postponing Possession. Are you now and have you always been a tenant?
  4. Assured trespassers?
  5. Assured tenant or trespasser? The waiting begins.
  6. Postponed assured trespassers verdict soon(ish).
  7. Permanent trespassers and enforceable possession orders.
  8. More on London & Quadrant v Ansell
  9. White v Knowsley - Court of Appeal Judgment
  10. Reincarnation of Tenancy?
  11. S.85 Application Randomness
  12. Permanent trespassers - a fan letter
  13. Payne-less
  14. Post mortem revival of tenancy
  15. When does enforceability end?
Previous in series: :Next in series

Accidentally Secure

Published
by
NL
on 4 March 2008
in Housing law
. 3 Comments

And so to the last of the marathon of housing case notes I’ve knocked out over the last few days….

This was reported in the Law Gazette, Mansfield District Council v Langridge (2008) CA (Civ Div), (free access at the time of writing) and is not yet on Bailii. This is a pity, because I really want to see the detailed judgment on this one, for reasons that will become clear.

In short, possession proceedings were brought against a secure tenant (on what ground is not clear), but the tenant was hospitalised before the hearing, entrusting the keys to the Council. On his release from hospital the Council refused to give the keys back (!!). the tenant obtained an order that he be allowed to return. The Council, to stop his return prior to the hearing of the possession claim, offered a flat to the tenant on the basis of a detailed licence stating that he would not become a secure tenant of the flat and that the tenancy of the flat would cease on determination of the possession claim against the original property. The Council won a possession order on the property and served notice on the tenant for the flat. The tenant defended on the basis that he was the secure tenant. The defence and first appeal were dismissed, the Council arguing that for the purposes of s.79(3) Housing Act 1985, the flat was not a separate dwelling and that the tenant’s right to occupy had ended, pursuant to the licence when the possession proceedings were completed.

At the Court of Appeal, the Council argued the same, adding that the licence agreement contained the express intentions of the parties; the licence did not fall under s.79(3) as it did not have the characteristics of a tenancy, being a temporary licence.

The Court of Appeal held:

  1. the law supervenes over the intention of the parties
  2. The licence agreement did fall within s.79(3) as it was a dwelling house, with exclusive possession and, because excluded from the original property, was entitled to treat it as his only home.
  3. from the agreement, the structure and location of the flat, it was clearly a separate dwelling for s.79(3) Tyler v Kensington and Chelsea RLBC [1991] 23 HLR 380 CA (Civ Div) and Andrews v Brewer [1998] 30 HLR 203 CA (Civ Div) distinguished.

So the Appellant was a secure tenant.

I really, really want to see the full judgment of this. Because I can’t see why it wouldn’t apply to temporary accommodation provided under Part VII. [Edit 5/3/08 - it doesn't, and I was not thinking straight. See below]

Here are s.79 - 81 Housing Act 1985

Secure tenancies.79.

(1) A tenancy under which a dwelling-house is let as a separate dwelling is a secure tenancy at any time when the conditions described in sections 80 and 81 as the landlord condition and the tenant condition are satisfied.

(2) Subsection (1) has effect subject to—

(a) the exceptions in Schedule 1 (tenancies which are not secure tenancies),

(b) sections 89(3) and (4) and 90(3) and (4)(tenancies ceasing to be secure after death of tenant), and

(c) sections 91(2) and 93(2)(tenancies ceasing to be secure in consequence of assignment of subletting).

(3) The provisions of this Part apply in relation to a licence to occupy a dwelling-house (whether or not granted for a consideration) as they apply in relation to a tenancy.

(4) Subsection (3) does not apply to a licence granted as a temporary expedient to a person who entered the dwelling-house or any other land as a trespasser (whether or not, before the grant of that licence, another licence to occupy that or another dwelling-house had been granted to him).

80. The landlord condition.

(1) The landlord condition is that the interest of the landlord belongs to one of the following authorities or bodies—

 a local authority,

a new town corporation,

[a housing action trust]

an urban development corporation,

81. The tenant condition.

The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.

And here are the Schedule 1 exceptions

1. A tenancy is not a secure tenancy if it is a long tenancy.

1A. A tenancy is not a secure tenancy if it is an introductory tenancy or a tenancy which has ceased to be an introductory tenancy—

(a) by virtue of section 133(3) of the Housing Act 1996 (disposal on death to non-qualifying person), or

(b) by virtue of the tenant, or in the case of a joint tenancy every tenant, ceasing to occupy the dwelling-house as his only or principal home.]

2 & 3 [Employment related accommodation not relevant here]

…

So, given the apparently expansive view of s.79 taken by the Court of Appeal here, how would a licence for temporary accommodation after homeless application or post accepting duty, and satisfying the conditions of being a self-contained dwelling, with exclusive possession, tenant’s only home and a local authority landlord, not be a secure tenancy? [Edit 5/3/08. Of course it wouldn't, as Simon pointed out in the comments, below. It would fall under Schedule 1(4) Housing Act 1985. I can only plead being very tired in mitigation.]