Housing law news and comment
I am really not sure what on earth I’m going to do with it, but because Nick Holmes seems fairly sure that it is worth trying out uses for Twitter, I’ve signed up. As has John at Family Lore. Where it goes from here, apart from wasting time that I haven’t actually got, we shall see. But, oh get behind me Satan, it works fine on my mobile’s browser…
nearlylegal is the twitter ID, unsurprisingly.
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Lusamba, R (on the application of) v London Borough of Islington [2008] EWHC 1149 (Admin) concerned a judicial review application on failure to decide on provision of interim accommodation pending review of a negative s.184 HA 1996 decision. It raises interesting procedural issues and a few issues on dependency of family members for priority need.
The application for judicial review on grounds of failure to make a timely decision on interim accommodation was made on 10 April 2008, after a review request on 4 April 2008. On 15 April 2008 at oral hearing, which islington missed as they had not been notified by the court, permission was granted and temporary accommodation ordered. On 28 April, Islington made a decision and refused interim accommodation. Islington applied on 1 May to discharge the interim injunction. The interim relief sought had been temporary accommodation pending not just decision but until the s.205 review decision, which this Court notes extends considerably beyond the final relief sought.
This hearing was of Islington’s application, which was also made on the basis that permission had been granted before the time for an acknowledgment of service had expired, with no abriding order, and that Islington had not had notice of the hearing.
The Court found that as the decision on interim accommodation had now been made, the proceedings as issued must fail. The application for interim accommodation pending review could not now be based on the allegation that the required decision had not been made. In fact interim accommodation could only have been ordered on the basis that it was until the decision on interim accommodation was made.
The Court’s options were either to treat the hearing as the full hearing or dismiss the application and discharge the application. But this did not take into account what was effectively a further application, via the Claimant’s response to the Defendant’s application to discharge. Not a formal application but one in substance, that the decision of 28 April not to provide interim accommodation was unlawful, meriting interim accommodation until review decision as relief. The Court then considered this de facto application on its merits on the basis that both parties had in any case consiered their positions on the decision letter.
The original homeless application was made on the basis that the applicant had a dependent, her 18 year old sister, both French nationals. The sister was a full time student and the applicant was apparently receiving child benefit and child tax credit for her on that basis. The Council’s refusal for interim accommodation emphasised that, although an 18 year old in full time education can be a dependent, the guidance suggests that the relationship should be akin to a parent and child relationship. In addition, the sister had been in the UK for a year or so before being in education and before receiving any support from her sister.
The Court found that the applicant had not provided any new material after the s.184 decision and one would expect detailed material on dependency to be provided. There was nothing to include the present case iside what the guidance envisaged as dependency. The Court had real difficulty in seeing how the s.202 review would be succesful, but for its purposes, there wasnothing to suggest that the decision letter refusing interim accommodation was anything other than a proper response or contained an error in law.
On that basis, there was no point in formally amending proceedings. This was to be treated as the full hearing of the judicial review application and it was dismissed and injunction discharged.
There is an illustration here of the importance, but also the difficulty when in a hurry, of getting application, grounds, final relief and interim relief all lined up properly when making an urgent application. But also an illustration of the convolutions that the problems the Admin Court is facing can sometimes result in, when one effectively turns out to be applying for something else altogether, simply through time and events.
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Update on this case from Friday 24 May. No judgment available yet that I have seen, but there is a further new story on the Hounslow case at 24dash.com, which gives a few more details.
Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.
Damage of £97K, suspended pending appeal.
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On the very crowded naughty step this week are the Solicitors Regulation Authority, the Law Society and, umm, firms of solicitors in general.
Shahrokh Mireskrandari, senior partner of Dean and Dean, has launched a claim for £10 million against the SRA and the Law Society at an employment tribunal, alleging racial and religious discrimination, harassment and victimisation by pursuing ‘numerous’ complaints against the firm over the last 5 years, only one of which produced a, minor, adverse finding. He accuses the Society and SRA of acting
unjustifiably, oppressively, disproportionately and outside their powers.
Meanwhile the SRA has, under pressure, set up a working party to investigate why 62.8% of interventions by the SRA in 2006 were against black, asian or unknown ethnicity solicitors, while 37% were against white solicitors, who make up 78.6% of all solicitors. (I’m very curious about the remaining 0.2% of interventions.)
On the topic of unjustifiable conduct, the Law Society’s own equal pay review revealed the shocking results that the median income for ethnic minority solicitors was 20% less than that of white solicitors. Even once factors like grade, gender, firm size, region, post-qualification experience and hours worked were taken into account, the gap remained at 17%.
Women solicitors earned 32% less than male solicitors. Even after grade, firm size, PQE, hours worked, work breaks taken and area of law were taken into account, the gap remained 7.6%.
The figures are appalling, way beyond any ‘accidental’ disparities. If they are accurate, the figures are a pretty damning indictment of our ‘meritocratic’ profession.
That said, a closer look at the sample size might cause a small doubt over the reliability of the survey.
Researchers quizzed 1,201 solicitors, 9% of whom were BME solicitors and 43% were female – described as a representative sample after weighting. The overall response rate was 76% and 52% for the salary questions.
On my maths that means 109 BME solicitors, of whom 56.7 answered the salary question. That strikes me as small sample and one that is pretty easily distorted, even using a median. This doesn’t mean the findings are wrong though, not at all.
It also suggests a sample of 516.3 women solicitors of whom 268.5 answered the salary question, which ought to be more reliable.
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The Housing news feeds page has a couple of new sources added. In addition, although it has taken me a shamefully long time to borrow the example of Nick Holmes Family Law pipe, I’ve finally got around to it it. All eleven sources are now available as a single combined RSS feed automatically listing the 50 most recent items, via a Yahoo pipe.
You can subscribe on the Housing news feeds page or here:
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A case is reported in the Guardian which apparently extends local authorities’ duty to protect tenants from third parties to include vulnerable adults, not only children.
A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.
At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.
I’m looking forward to seeing the judgment on this one.
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Ruthie’s Law dons the mantle of one of the all-too-rare British hostings of a Blawg Review, and a damn fine review it is. More details on Blawg Reviews here.
I believe Geeklawyer is due to be the next British host, so anyone whose business is dependent on cross-atlantic relations would be wise to sell up now.
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A couple of interesting permission to appeal hearings have appeared on Bailii. Permission granted in both cases for Court of Appeal hearing.
Lee v Rhondda Cynon Taff County Borough Council [2008] EWCA Civ 523 concerns whether a Local Authority should have considered the acquisition of a plot for a caravan in the context of a review of an offer of ’suitable’ accommodation following assumption of housing duty to a homeless Romany Gypsy.
City of Westminster v Man [2008] EWCA Civ 532 arose out of a claim for unpaid service charges. It concerns whether a Tomlin Order, staying the proceedings, means that an earlier order for costs in the proceedings, not mentioned in the Tomlin Schedule, is unenforceable due to the stay. Not necessarily of interest to many housing people, but we use Tomlins a lot in disrepair and nuisance claims, so this is worth keeping an eye on.
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Well, McCann v UK certainly seems to have stirred things up. Naturally, most of the speculation is on the effect and extent of the judgment.
I’m still trying to work out for myself what the likely or even possible effects are, so this is a work in progress.
In descending order of certainty…
Common law summary possession by a local authority/public body landlord after Notice to Quit (e.g Ex joint tenants; temporary accommodation under s.183 and possibly s.192 HA 1996; ’successors’ to deceased tolerated trespassers; non-successor occupants; etc.)
Possession proceedings will need to include the potential to consider whether the eviction is proportionate under Art 8.2 ECHR.
Does an assertion that the eviction is not proportionate constitute a defence? I think it is likely to be so. Although alternatives might include compensation, if the eviction is disproportionate, the court would be aiding a breach of Art 8.2 in making a possession order. (The similarity to the ‘unlawful act’ element in Malcolm v Lewisham might mean that the House of Lords judgment in Malcolm has an impact, but Malcolm concerns interpretation of statute, not ECHR).
Where will this leave the tenant? Most likely as an ex-tenant still in occupation. I can’t see much in McCann to suggest that the ending of the secure tenancy per se was taken to be disproportionate, the issue being purely that the possession proceedings could not consider proportionality of eviction.
Mandatory possession proceedings brought by a public body landlord under statute – for instance introductory and demoted tenancies.
Trickier, as to some extent the summary nature of the possession hearing is given in statute. While in common law proceedings, the Court can introduce ‘proportionality’ under its own duty under the Human Rights Act, it is surely different where the process is statutorily limited. Would the best the Court could do be a declaration of incompatibility?
Possession proceedings by non-public bodies, private landlords or RSLs, where summary or mandatory.
There have been suggestions that McCann might hold other than for a public body landlord. Given that private and RSL landlords have no duty to comply with the ECHR under the HRA, there is no duty on them to behave proportionately in evictions and therefore no basis for the court to hold them to proportionality as being their duty.
So, the only way that I can see that McCann would extend beyond public body landlords is if the Courts, as public bodies, are taken as being required to consider proportionality in their decisions to make an possession order – the duty of behaving proportionately being the court’s, not the landlords. Thus there would be a general duty to consider proportionality in all possession claims, whether brought by private landlord, RSL, public landlord, and whether summary, mandatory, or discretionary.
I very much doubt that this can be the case. It is not, after all, the court that is evicting the (ex)tenant/occupier, it is the landlord.
McCann focussed on the procedural ‘defect’ of the summary possession procedure against a local authority (ex)tenant. The LA’s ability to ’sidestep’ the requirements of HA 1985 via the NTQ was specifically raised as an issue by the ECtHR in the judgment. The ECtHR acknowledges that the existing summary procedure, and the availability of JR, provides safeguards to ensure the possession claim is lawful and for a legitimate purpose. If the ECtHR had been concerned with possession claims in general, then the lack of availability of JR against private or RSL landlords could have been mentioned as an even greater defect. But it wasn’t.
The ‘procedural defect’ is therefore a lack of ability to scrutinise whether the landlord’s interference with Art 8 rights is proportionate. This can only be the case where the landlord has a human rights duty to act proportionately.
I would be keen to be shown I was wrong, obviously, but I can’t see how McCann can extend beyond public sector landlords. Even if it does, we are back to the issue of statutorily given processes (s.21, mandatory grounds, etc.) and declarations of incompatibility.
Doherty v Birmingham in the Lords will give some clarification, but it is going to be fun in the County Courts for a while.
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A few bits and pieces…
Gilboy v Liverpool CC has a hearing at the Court of Appeal on 19 or 20 May (thanks J and GCN).
Doherty v Birmingham is at the House of Lords later this year, which should be a big test for the legacy, if any, of McCann (thanks J, again)
Rumour is that Southwark are appealing R(Faarah) v Southwark. Not sure I see what the basis of appeal would be, but we’ll see.
The world of housing blogs expands still further and intriguingly, the latest addition is by a homeless officer. The nothing if not literally named A Homelessness Officers Point of View promises to ’cause comment’.
And a happy birthday to Charon QC. Long may the Rioja flow.
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