With grateful thanks to JacquiG at Bloody Relations. I couldn’t resist, what with this apparently being exam season for the wannabe lawyers and all..
Archive for April, 2008
Thanks to a reader, I have just noticed that another blog, albeit one now apparently defunct, had used significant chunks of a post of mine unaltered, without attribution and as if the material was theirs.
I’m used to the spam blogs that rip off content in its entirety. These are annoying, but usually short-lived. I’ll aid in shortening their life span where possible. It is a bit different where it is a genuine blog or site taking the material. It is, of course, a breach of copyright, but worse, it is downright rude.
I’ve never actually set out any conditions of use for my material, letting default copyright stand. Until recently, it never occurred to me that the need might arise. But this seemed like a good time to think about it. So…
I am happy for people to quote or otherwise use my material from this blog on condition that:
- If it is for non-commercial use, the material is given an attribution and/or link to this blog.
- If it is for commercial use, or for use in a paid-for product, permission has been requested and obtained from me.
I’ll put something to this effect in the About page. I doubt there will be that much call for it, though.
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Apparently Wandsworth are very very unhappy with the Court of Appeal judgment in Wandsworth v Randall on underoccupation possessions via ground 16 HA 1985. So unhappy that they are lobbying Caroline Flint to change the law via the Housing and Regeneration bill.
There are, of course, extremely good policy reasons for underoccupation possessions. Multiple bedroom council properties are in extremely short supply and demand is high.
Wandsworth, however, are putting more than a little spin on this. Martin Johnson, Cabinet member for housing said:
Our concern is the Court of Appeal judgement provides an incentive for underoccupying successor tenants to artificially increase their household as a way to defeat such a possession application.
The judgment expressly said that artificial inflation of numbers of people living in the property would be an issue for reasonableness at the hearing. It is fully open to the landlord to present evidence on the issue. So to say
the case left landlords with ‘very little power’ to pursue ground 16 repossessions.
is nonsense.
But Mr Johnson is trumped by Brian Reilly, deputy director of housing, who fumes that this is
clearly a case where there has been an interpretation of the law that is simply wrong-headed.
Call me an old stick-in-the-mud, but that would be for the House of Lords rather the deputy director of housing of the frustrated claimant to decide.
I take it that this sound and fury means an application for permission to appeal to the Lords will not be forthcoming, but why ever not, Mr Reilly?
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The Court of Appeal has effectively given guidance on the application of Stack v. Dowden [2007] UKHL 17 where one is faced with a transfer into joint ownership and no express statements as to shares in the property in Fowler v Barron [2008] EWCA Civ 377 (23 April 2008).
At 21:
To recapitulate, the important points decided by the House for the purpose of this appeal were as follows. The legal technique that the court will use to ascertain whether both joint owners who had been co-habitees had a beneficial interest is that of the common intention constructive test, rather than that of resulting trust. This will enable the court to take a holistic view of the whole of the parties’ conduct so far as it illumines their shared intentions about the ownership of the property. The court will not impose any particular allocation of property on the parties. It is not a question of the court deciding what is fair as regards the division of ownership but of determining what the co-owners’ shared intentions were as regards beneficial ownership. This was a deliberate policy choice to make the law respond to current needs: see per Baroness Hale at [60]. Where, as here, a house is transferred into the joint names of two individuals as their home, without any declaration of trust, the transfer will indicate that the parties intended to own the house in equal shares and thus the onus will be on the one (here, Mr Barron) who asserts that property is owned by them other than in equal shares to show that they had a shared intention to own the property in some other shares. The conduct that the court will take into account will include, but is not limited to, the financial contributions that they made towards the acquisition of the property or repayment of any loan raised for such purpose. The onus will not be easy for that person to discharge.
Evidence purporting to rebut the presumption of joint beneficial ownership must be of the parties shared intentions, or of a later shared change of intention.
35. In determining whether the presumption is rebutted, the court must in particular consider whether the facts as found are inconsistent with the inference of a common intention to share the property in equal shares to an extent sufficient to discharge the civil standard of proof on the person seeking to displace the presumption arising from a transfer into joint names.
36. The emphasis is on the parties’ shared intentions. As Lord Diplock said in Gissing v Gissing [1971] AC 886 at 906B-C, “…the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.” This would be broadly consistent with the principles applicable to the interpretation of a written document, if that had set out their intention.
When assessing evidence, attention should be given to Lady Hale’s warning at para 68 of Stack:
In family disputes, strong feelings are aroused when couples split up. This often leads the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle and is warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs. In joint names cases it is also unlikely to lead a different result, unless the facts are very unusual.
In this case, the lower Court’s finding of no interest for Ms Fowler in the property (on the basis of contribution to purchase and mortgage as a resulting trust issue) was overturned, and a 50% interest found. In particular, shared household expenses, although none directly related to property expenses, were found sufficient to infer that it was not important to the parties who paid for what specifically or respective size of contribution. Evidence of mutual wills also played a part.
It was noted that Stack v Dowden involved a quite unusual separation of finances.
From this, it is clear that the presumption of joint beneficial interest is to be taken seriously. Rebuttal evidence will have to be pretty strong.
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Honeygan-Green v London Borough of Islington [2008] EWCA Civ 363 (22 April 2008)
A quick note on this Court of Appeal case. What happens when a secure tenant who has begun the right to buy process subsequently has a suspended possession order made against them, and then later has the SPO discharged?
The Court of Appeal’s answer, following Enfield London Borough Council v. McKeon [1986] 1 WLR 1007 and Lambeth London Borough Council v. Rogers [1999] 32 HLR 361 and indeed Burrows v. Brent London Borough Council [1996] 1 WLR 1448, was that a revived tenancy brought with it retrospectively all of the rights of the tenant as if the tenancy had never ended. So s.121(1) HA 1985 is of temporary application, while the SPO is in effect.
The upshot is that a right to buy procedure begun before the possession order is merely suspended and revives with the tenancy – so that the original market price valuation still applies.
However, there are some oddities in this case. Firstly, Ms Honeygan was very lucky to have her possession order discharged before Swindon v Aston [2003] happened, as she had breached the terms of her SPO, and under Aston, would not have been able to have the possession order discharged.
Secondly, the Court of Appeal judgment expressly approves the broad discretion of the Court under s.85 HA 1985 in Rogers
Simon Brown LJ made the point that the court’s order reviving the secure tenancy could have been made subject to a condition that the tenant’s damages claim should not be pursued
Hmm. I haven’t got access to the details now, but I seem to recall a recent appeal from a County Court decision at Lambeth County Court that said that conditions set on a s.85 revival/postponement of possession could only be related to the grounds of the original possession order – e.g. rent arrears, where the DJ had set a ‘no disrepair’ condition. It was in Legal Action, I’ll try to find it tomorrow.
Plus, as far as I can tell, this will only apply to discharged SPOs and – presumably – paid off PPOs.
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A Court of Appeal case, concerning eligiblity for housing assistance via EU status
London Borough of Harrow v Ibrahim & Anor [2008] EWCA Civ 386 (21 April 2008)
The facts are, briefly, Mrs Ibrahim is a Somali national, married to a Danish national. He came to the UK in 2002 and worked until 2003, when he claimed incapacity benefit to 2004. He was then declared fit. He didn’t take up work and left the UK shortly afterwards. he returned in December 2006 and remained without work.
Mrs Ibrahim and their four children joined Mr Ibrahim in the UK in Feb 2003. The children started school in Harrow and have remained in school ever since. Mrs I is separated from her husband, has not worked and relies on benefits. In January 2007 she applied as homeless. Neither Mr nor Mrs I qualify as having a right to reside as worker, work-seeker or self-sufficient. So, unless the children had a right to reside, they would be subject to immigration control and not eligible for housing assistance. Mrs I as carer relied upon her children’s right to reside.
After a negative s.184 decision and s.202 review, the Recorder in a s.204 appeal found for Mrs I, that the children had a right to reside under art 12, Regulation (EEC) No 1612/68 (the 68 reg). Harrow appealed.
The issue is deceptively simple. It has long been held that children of an EU citizen (or the spouse of an EU citizen) who at one point had the right to reside, as a worker or otherwise, and who entered education in the host country when that right was being exercised, had the right to reside in order to continue that education, via Art 12 of the 1968 regs. This was regardless of whether the initial person had ceased to have the right to reside or had left the country. Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091
However:
- Baumbast concerned people who were self-sufficient, without specifically referring to or addressing the fact.
- More importantly, the 68 reg had been, at least largely, supplanted by the Directive 2004/38/EC of 29 April 2004 (the “2004 Directive”) and the corresponding provisions of English law in the (European Economic Area) Regulations 2006 (the “2006 Regulations”).
The 2004 Directive was intended as a unifying of the previous piecemeal right to reside provisions. But it did not expressly repeal art 12 of the 68 regs, when it did expressly repeal other articles (10 and 11) in the same Regulation.
The 2004 Directive (and the 2006 Regulations) hold;
- that the right to reside to continue education is available when the parent who initially had the right to reside has died or left the country.
- that “Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.” (Art 14 2004 Directive). But residence as worker does not have such a condition, see Art 7(1)(a) 2004 directive.
Mrs I contended that, as art 12 of the 68 reg was not repealed, the broad principle of art 12 and Baumbast remained. Mrs I’s situation was a lacuane in the 2004 Directive as Mr I had not died and had lost the right to reside as worker/workseeker by the time he left the UK. There was no requirement of self-sufficiency to reside as a worker and was none in the 2004 Directive. Baumbast had held no such requirement.
Harrow and the Secretary of State as intervener contended that the 2004 Directive is the sole source of rights of residence and was clearly intended to incorporate Baumbast. That Art 12 wasn’t repealed didn’t matter when Art 10 of the 68 reg was repealed, as Art 10 was the source of rights of residence. In any case, the 2004 Directive made self-sufficiency an over-arching requirement for any other right to residence other than the specific exception of a worker and his family. So Mrs I didn’t meet the conditions as i) she wasn’t self-sufficient and ii) Mr I fell outside the Directive as he was neither dead, nor a worker/work-seeker when he left the UK.
The Court of Appeal leaned towards Harrow’s view, but found that the issues are not acte clair, in particular on the concept of ‘departure’ in the 2004 Directive and how far Baumbast could give an independent right to reside based on Art 12 of the 68 reg alone. So they referred questions to the European Court. Specifically:
In circumstances where (i) a non -EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:
(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;
OR
(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and
(ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;
(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?
Hmm. Interesting. This could affect a fair few people.
Nicola Rogers was instructed by Shelter for Mrs Ibrahim. Kelvin Rutledge and Sian Davies were instructed by Harrow, and a brace of QCs, Clive Lewis QC and Elisabeth Laing QC for the Secretary of State for the Home Department.
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This week’s award for literalism goes to William Lyttle. Mr Lyttle, apparently not realising that ‘fall’ and ‘collapse’ are usually metaphors when applied to property, spent 40 years excavating a labyrinth of tunnels under his Hackney property. Mr Lyttle, the Daedalus of east London, was this week ordered to pay Hackney Council £300,000 for the cost of making the property safe, after they evicted him in 2006. Mr Lyttle’s excavations had previously caused a 15 foot abyss to appear in the pavement outside the house. Mr Lyttle remains subject to an injunction to keep him from his subterranean labours.
The Shelter strike is back on, sadly. Shelter staff are due to strike on Thursday 24 April and Friday 25 April. Details here (hat-tip to Housed for the link). A Shelter staffer has left a comment on this blog about developments.
In linked news, concerning as it does LSC funding for not-for-profits, the Mary Ward pro-bono unit is facing closure. The pro-bono unit was supported by the main LSC-funded law centre, but the effect of the fixed fee scheme has been to slash the funding of the Law Centre, so there is no spare cash. Tellingly,
the director told volunteers that because the legal aid caseworkers are working with reduced funds, the centre is having to prioritise simple, short matters and turn away people with complex legal problems.
This is exactly what everyone warned would happen with the funding changes. Sadly, this won’t be the last story of this kind.
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Let us say you were a large US company, looking to throw around your intellectual property muscle for a quick buck by putting a licensing squeeze on small companies. If so, it is probably best not to pick on a small tech company headed by an ex-litigator [link is lengthy but funny].
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Manchester City Council v Moran & Richards v Ipswich Borough Council [2008] EWCA Civ 378
This is a very important Court of Appeal judgment, which will have significant impact on Women’s Refuges and women fleeing domestic violence.
These were two appeals, conjoined, both featuring women whose stay at refuges had been ended following incidents and who faced findings of intentional homelessness on homeless applications as a result. The difference was that Moran had the decision as s.184 decision on application as homeless after leaving the refuge and the other, Richards, had been in the refuge after an application and acceptance of duty, with the refuge as temporary accommodation under s193 HA 1996, so duty was discharged on her making herself intentionally homeless.
In Manchester v Moran, Manchester were appealing a finding on s.204 appeal that the refuge was not accommodation (or accommodation in which it was reasonable to remain) for the purposes of s.193 HA 1996. In Ipswich v Richards, Richards was appealing a .s204 appeal finding that the refuge was accommodation in which it was reasonable for her to remain.
In both cases, if the refuge was not accommodation (or accommodation in which it was reasonable to remain), the findings of intentional homelessness would fall.
In general, local authorities have followed R v LB Ealing Ex p Sidhu (1982) 2 HLR 48 (Sidhu), in which the High Court found that a refuge could not be considered as accommodation for the purposes of the Housing (Homeless Persons) Act 1977, then in force. In addition, guidance from the Secretary of State issued in July 2006 suggests at Chap 8, para 8.34 that it should not be regarded as reasonable to continue to occupy such accommodation as women’s refuges in the medium and longer term; and at Chap 16, para 16.27, in a discussion of suitability (not reasonableness) that placement in a refuge should be a temporary expedient only for the minimum period necessary.
Broadly, the argument advanced by Moran and Richards updated Sidhu, so that a refuge could not be considered to be ‘accommodation’ for the purposes of s.175 and s.193 HA 1996; or if it was accommodation, it could not be accommodation that it was reasonable to continue to occupy. In addition, there were sound policy reasons for such a view. If a woman could not make a homeless application while accommodated in a refuge, the refuges would quickly silt up completely with women waiting on Part VI applications.
The Court of Appeal, in the sole judgment of Lord Justice Wilson, found that Sidhu could not be accommodated with the later judgments in Puhlhofer v Hillingdon LBC [1986] AC 484 and R v Brent LBC ex p Awua [1996] 1 AC 55. Following the House of Lords in Puhlhofer, it was impossible not to consider a refuge to be accommodation for the purposes of s.175 HA 1996. Puhlhofer took a very broad definition of accommodation, refusing a purposive view. (In fact Puhlhofer precipitated the introduction what is now s.175(3) HA 1996 – reasonable to continue to occupy).
Following Awua, the Court held that reasonable to occupy was not equivalent to ’settled’ accommodation. In addition refuges did not fall under any of the statutory exclusions from reasonable to occupy, and there was no order made by the Secretary of State excluding refuges pursuant to s.177(3)(a).
In any case, the nature of refuges had changed since 1982, and they could no longer be equate to short stay or emergency shelters.
The accommodation in the present cases was such that it was reasonable for the women to remain. There was no immediate threat of the termination of their licence. It was expected, as set out in the evidence of the WRA, that women would stay for months, even up to two years, while alternative permanent accommodation was being pursued. It was therefore accommodation that was reasonable for them to occupy.
Manchester’s appeal granted. Richards’ appeal dismisssed.
The Secretary of State’s guidance was wrong and should be reconsidered. If the government wished this situation to change, it would be a matter for statute – an order by the Secretary of State.
The Court was clear that a refuge would not always be considered as reasonable to continue to occupy. The Court set out a list of matters for homeless officers to address in assessing refuge accommodation for homeless applicants. I have added the full list at the end of this post. Clearly they will be of considerable importance for both housing officers and advisors.
(For complete geeks like me, there is an interesting discussion of the distinction between ‘reasonable’ (s.175) and ’suitable’ (s.206) at paras 30 & 31, but nothing turns on it here.)
This judgment places women’s refuges in a very difficult position indeed. It means that they will not be certain whether a woman that they take in will be able to make a homeless application will at the refuge. They will have to consider the list of factors set out in the judgment in each and every case, as what might be reasonable for one woman’s circumstances will not be for another woman. They will have to consider limiting the support that they offer. It effectively leaves them in an impossible position
As far as I can see, there are three options from here:
i) Appeal to the House of Lords. The prospects of success are not great, I would have thought. I suspect that the circumstances of Moran might be a better candidate for an appeal than that of Richards, but the key issues are identical, at least as long as one takes ‘accommodation’ in s.175 to mean the same as ‘accommodation’ in s.193, and I think we have to take that to be so.
ii) Secretary of State makes an order excluding refuges as ‘accommodation reasonable to occupy’. The simplest solution, and, given the SoS was an intervener in the appeal, maybe the most likely.
iii) Refuges and Councils struggle on with the ‘Moran guidelines’ as I shall christen them, as to whether a refuge is reasonable to occupy or not. A whole new swathe of s.204 appeals are born as the application of the guidelines is thrashed out.
The Guidelines – matters to be considered in enquiry under s.175(3) or s.191(1) Housing Act 1996 – are at paras 49 and 50:
49. The general matters which fall to be considered include:
(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;
(b) the terms of the agreement by which it is made available to her;
(c) her ability to afford it;
(d) the appropriateness of its location for her and her child (if any);
(e) the extent of its facilities for her child;
(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;
(g) the length of time for which they have already occupied it;
(h) the state of their physical and emotional health while in occupation of it; and
(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.
50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:
(a) the nature of the refuge;
(b) the scale of support which the refuge aspires to provide to the woman;
(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;
(d) the length of the period for which women generally occupy it;
(e) the extent to which, during her occupation, the refuge has been full;
(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;
(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and
(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.
Jan Luba QC and Adam Fullwood, instructed by Shelter, Manchester, for Moran.
Martin Hodgson, instructed by Anthony Gold, for Richards.
Martin Chamberlain for the SoS.
Clive Freedman QC and Zoe Thompson for Manchester
James Findlay and Wayne Beglan for Ipswich
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Just a quick note to say that Housed has a report on a County Court judgment on a claim for failure to put deposit in scheme and notify tenant within 14 days. (Stankova v. Glassonbury 10th March 2008, Gloucester County Court. Initial report apparently via Consumer Action, no reference or link)
Result – mandatory 3 x deposit award, with no set off against arrears (because mandatory). It didn’t matter that the landlord had very belatedly put the deposit in a scheme, or that the tenant had left after s.21 notice, or that that the landlord raised deductions from the deposit at Court. The court was apparently persuaded that deductions were irrelevant on the basis that a statutory scheme included arbitration for disputes about returning or retaining deposit monies. Apparently the DJ wasn’t happy making the award but found he could do no other.
There is an unaddressed issue about validity of an s.21 Notice, as the tenants had moved out.
Thanks Housed. Useful stuff for many tenants.
[For all tenancy deposit case posts click here]
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