The Joy of Housing Law
Or strictly speaking the ad for me.
I’m due to qualify at the end of September and so I’m hunting for a newly qualified post. Anyone interested in employing an experienced, enthusiastic, dedicated and, casting false modesty to the winds, frankly damn good housing/landlord and tenant solicitor is very welcome to email me at the contact (at) nearlylegal.co.uk address.
Oh dear, oh dear. That could have gone better.
I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.
The headline result is that:
This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.
Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[...] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.
The issue is s.24(1) which defines discrimination for the purposes of s.22(3) - the eviction clause. S.24(1) reads:
For the purposes of section 22, a person (‘A’) discriminates against a disabled person if -
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment is justified.
However, exactly the same formulation appears at s.5(1) - employment; and s20(1) - Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.
Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.
For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.
The specific problem for services and premises - which was the provision facing the Lords here - is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.
Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.
What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn't, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) - no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]
The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 - 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view - the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.
The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did - the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.
Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.
The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.
[I should point out that in all of this, I agree with Francis Davey's comments on my 'Malcolm in brief' post. Link below]
Belated, I know, but this is the first chance I have had to really look at the judgment in Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).
Ground 8 and Legitimate Expectation
First the substantive ground of challenge - that the use of Ground 8 mandatory possession claims by L&Q Housing Trust amounted to breach of the claimant’s legitimate expectation and/or convention rights.
This was based upon LQHT’s terms and conditions, which said that they would comply with the Housing Corporations regulations and guidance. Housing Corp guidance says that ‘before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt’. The Claimant argued that reasonable alternatives included agreement on paying arrears, money judgment, or discretionary possession claim on grounds 11 or 12. Seeking to avoid Postponed Possession Orders was, in effect, saying that the judicial discretion would not be properly exercised. LQHT’s practice, it was claimed, was solely to use Ground 8.
L&Q denied that they had a policy to only use Ground 8. That use of Ground 8 resulted in a high level of payment of arrears prior to hearing and was thus an effective tool. L&Q denied that the contractual term involved could give rise to legitimate expectation - it was a statement of intent or target duty. It was not specific enough to give rise to an expectation - the specific guidance was not prescriptive and the language vague. In any case, there was no evidence of reliance.
L&Q said they had pursued all reasonable alternatives in this case, and use of grounds 11 or 12 prior to the use of ground 8 could not be considered to be a required reasonable alternative.
On the facts of this case, where there was a history of substantial and repeated defaults on agreements, the Court found that L&Q was entitled not to consider using ground 11 or 12.
Moreover, the Court found that the wording of the guidance was too broad to allow solely the claimant’s interpretation and, as the passage in the terms and conditions was not contended to be contractually binding, it could not be treated as having the qualities that would justify enforcing it as a legitimate expectation, particularly as there was no evidence that the Claimant was even aware of the term.
The claim failed.
Comment
I think L&Q were, to some extent fortunate in the challenge they faced. Legitimate expectation was always going to be difficult to establish on the back of Housing Corp guidance. I was rather surprised to see it as the sole ground of challenge. I suspect that L&Q also managed to obfuscate their actual practice somewhat in evidence. Certainly what was put forward in evidence differs from what tenant-side advisors encounter. But there we are.
There may be enough in the specifics of this case to distinguish it in future, as LQHT’s behaviour in regard to this specific tenant clealry shaped the Court’s attitude to the overall challenge - there had been repeated attempts to recover arrears and come to agreements, as well as repeated NSPs, sufficient to bolster LQHT’s claim that this was a weapon of last resort.
There may also be further evidence on L&Q’s use of ground 8 that may support challenges on other bases. I don’t think that this one ends the JR and ground 8 possibilities.
Subject to Judicial Review
More significant in the broader scheme of things, of course, is that L&Q were found to be a Public Authority amenable to judicial review in its housing function.
L&Q’s argument was that they were not a public authority. While certain functions were certainly public, such as its statutory function in relation to anti-social behaviour orders, or specific statutory delegations by local housing authorities, the main function of managing and allocating its own housing stock was not public.
Public funding grants were received but this was not determinative of public function. Provision of housing is not a public function like provision of education or social care. Moreover, the relationship between Claimant and LQHT was contractual, which was at the core of R v Servite Houses, ex p Goldsmith [2001] LGR 55, as approved in YL v Birmingham City Council [2007] 3 WLR 112. RSLs have private law status and being subject to detailed regulation does not point to them being public authorities, as found in YL v Birmingham.
LQHT argued that even if allocation was a public function, the termination of tenancy was not. it was a management decision governed by contract. Since the decision in Peabody Housing Association Ltd v Green (1978) 38 P&CR 644, only Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 had suggested that termination of a tenancy by an RSL could be a public function, and Poplar Housing turned very much on its specific facts.
The Claimant argued that Peabody was prior to the explainsion of Judicial Review and Servite was decided prior to the introduction of the HRA. The Claimant applied YL v Birmingham and argued that LQHT was carrying out a overnmental function, the management and allocation of stste-subsidised housing (cf Novoseletskiy v Ukraine (2006) 46 EHRR 53). LQHT received substantial capital grants from public funds. RSLs were established under the Housing Act 1996 in order to deliver affordable housing and funded by Government to that purpose. Management of housing, including the setting of rents, is subject to the Housing Corp guidance.
The Claimant also pointed out the LQHT irself allocates and manages public housing resources in the public interest, albeit not strictly by delegation of functions, but Strasbourg case law on delegation of powers (e.g. Wos v Poland) was relevant. LQHT was entrusted with public funds and required to use them in the public interest. Unlike Southern Cross in YL, it is non-profit-making and not acting out of private, commercial motivations.
Deciding to grant or terminate tenancies are therefore decisions concerning the allocation of public housing resources.
The Claimant also argued that providing housing to priority applicants under the LA allocation scheme was pursuant to s.8 Housing Act 1996 and a duty under s.170 HA 1996. The Court found this misconceived, a duty to co-operate under s.170 is not a statutory duty to grant a tenancy.
Likewise, the Court ignored arguments on the government accepting that RSLs were ‘bodies governed by public law’ for the purposes of EU directives on procurement. The government’s view did not determine the position and EU law was not Convention or human rights law.
The Court found that LQHT was a public authority in its housing function, citing the following reasons:
For these reasons LQHT is a public authority in the meaning of s.6(3)(b) Human Rights Act 1998.
If it is a public authority for the purposes of the HRA, then it should be equally amenable to judicial review on conventional public law grounds.
Comment
I don’t think that this list should be taken as a set of necessary conditions for public authority status. Clearly some elements were more persuasive to the Court than others. For instance - the ex-local authority housing stock point. This is clearly a different point to that made in Poplar Housing, as here it is, in effect, simply further support for the idea that RSLs are performing the same type of housing function as local authorities. So, I can’t see how much, or indeed whether, ex-local authority housing stock is in possession of an RSL being a crucial determinant for their status as public authority. The main point is surely the level of public funding/subsidy and the level of state guidance/direction involved.
It would be difficult, I suspect, for any RSL to argue that its position is so significantly different to that of LQHT as to not be a public authority. But no doubt some will try.
While the headline is susceptibility to Judicial Review, it is also worth noting that, at almost the same moment that an amendment to the Housing and Regeneration bill to make RSLs subject to the HRA failed, this judgment states clearly that, in their housing functions, RSLs are indeed subject to the HRA.
A few months ago, this might not have been a big deal, but post McCann, it may turn out to be significant. Proportionality in the mandatory possession process anyone?
I know that a number of RSLs have been quietly settling prospective JR claims, precisely to avoid a full hearing on their status as public authorities. I suspect L&Q are not very popular at the moment with their fellow RSLs. There will no doubt be an appeal of that finding, which also opens the prospect of a cross appeal by the Claimant. Interesting times.
I’m afraid that detailed comments on Weaver and Malcolm, let alone anything else will have to wait until the weekend, just in case anyone was looking for them. Actual and very urgent casework has intervened, involving quite the most ridiculous reason given for a s.184 decision of intentional homelessness that I have ever come across. That has accounted for the last couple of evenings.
LB Lewisham v Malcolm [2008] UKHL 43
Court of Appeal thoroughly and unanimously overturned.
The reason for the treatment is the reason in the mind of the landlord, or one which can be imputed to them. So the landlord must be aware or be imputed to be aware of the disability, and the reason for the treatment in the landlord’s mind must be related to the disability.
Clark v Novacold mostly disapproved. The Court has some problems with the comparator issue, but mostly settles for the comparator for less favourable treatment being someone who has done the same thing but is not disabled (Thus, in Malcolm, someone who has illegally sub-let). Marvellous passage on the blind man and guide dog hypothetical at 35.
Baroness Hale alone disagrees, holding that the Novacold interpretation was what Parliament intended and approves Novacold for that reason. But she also finds that the landlord must or ought to have known of the disability and that knowledge to be a reason for the treatment.
Baroness Hale also argues for the introduction of a discretion on granting possession orders where there is apparent unlawful discrimination, balancing occupier and landlord interests.
Mandatory/unanswerable possession procedures can still have a DDA ‘defence’, it appears, but discrimination must be established as above.
Before I even have time to get to grips with Weaver, the House of Lords judgment in Malcolm v Lewisham is out. No time even for a quick look now. Hopefully I’ll get to post something later on.
Judgment just out
Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin)
Full notes tomorrow, but the headline is:
L&Q is a public authority in its housing function for the purposes of Judicial Review.
Use of ground 8 possession claims is not a breach of legitimate expectation.
I managed to miss an anniversary, a bit like my own birthdays these days. Nearly Legal was two years old on the first of June. Two years! That is positively middle aged in internet years, fittingly making the blog roughly as old as I am.
It has been quite a trip. I can safely say that I didn’t plan what Nearly Legal has turned into at all, nor did I expect what was always going to be a very niche blog to get the range of readers and calibre of commentors that it has. For all who comment and email, my thanks. It is, quite honestly, what keeps the blog going.
It isn’t just this blog that has changed, the surrounding world of UK law blogs is also very different. When I started, all the UK blawgs could comfortably fit on my blogroll link list, without it looking particularly lengthy. That is thankfully no longer so. There have been departures, some lamented, but also a lot of newcomers and, much to my delight, increasing numbers of very good specialist blogs have appeared.
There has also been an increasing amount of fun to be had with page scrapers, RSS and aggregators over the years, which has hopefully made Nearly Legal more of a resource than just a blog.
When I started Nearly Legal, I was a paralegal in search of a traineeship. Thankfully that has changed too. I’ll be qualified in a short while, of which more in a few days.
Like all anniversaries, though, this has brought on a minor bout of navel gazing. Whether Nearly Legal sees another anniversary, or even six months, depends on what will be dramatically changing circumstances, none of which I can safely predict. Where I want to take it, assuming it does keep going, is also not certain at the moment. It has been a lot of fun, but also a lot of effort, over and above my full time work. In the meantime, though, normal service will be maintained as far as possible…
The world domination plan is on schedule as another housing law blog starts up…
A warm welcome to ‘The snail in that legal bottle‘, by Ethan, a ‘housing sector legal person’.
Unfortunately, by way of greeting I popped over late last night and left an inadvertently pompous hatchet job in a comment to a post. I was under the initial, but brief, impression I was doing friendly discussion. Well done me.
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