Archive for July, 2008

Disrepair protocol costs

Published
by
NL
on 31/07/2008
in Disrepair, FLW case note and Housing law - All
. 6 Comments

Birmingham City Council v Lee [2008] EWCA Civ 891 concerns claimant’s costs incurred while following the disrepair pre-action protocol.

It is not uncommon for a landlord to do repairs after an early notification letter, or letter of claim, but pre issue (not that common, but not uncommon). This leaves the claim as for damages only. Where repairs are outstanding, the small claims limit is £1000 in damages or cost of works. But a damages only claim hits the usual £5000 limit. There are the small claims unavailability of costs consequences, and there is no public funding for small claims. Thus, doing the repairs would often kill a disrepair claim. In the meantime, costs would have been racked up following the protocol steps – which are necessary, with a potential costs penalty for not doing so.

Lee decides that, given the nature of the protocol, a claim begins at the start of the protocol steps, not at the commencement of litigation. Pursuant to CPR 44.9(2), the Court has the power to make a costs order for pre-allocation period, unrestrained by the limitations of whatever track the claim is allocated to.

Where a claim at pre-action protocol stage would be a fast-track claim (works not done), the Court can make an order that the Claimant have their costs, up to the date of the works being done, at the fast-track rate. This is still subject to establishing notice, liability etc., so will likely be ordered as costs in the cause.

The Claimant should apply for such a costs order with allocation questionnaires.

Now, although this leaves the claim ongoing as a small claim, with the remaining costs issues that this implies, it does mean that:

a) the principle is established for the purposes of negotiating costs in settlements, even pre-issue. There is the stick of a threat to issue and seek the costs order to use.

b) depending on the specifics of the case, it may be possible to continue a case that was initially publicly funded on a CFA basis, once it turns into a small claim. The statutory charge for the pre-action period should be covered by the pre-action fast-track costs order, meaning that the client’s damages won’t vanish into the statutory charge. But that is going to take careful evaluation of the client’s benefit.

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Notes on Doherty v Birmingham CC

Published
by
NL
on 30/07/2008
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 10 Comments

So, Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57

Well, well, and once more for effect, well. This is a very interesting result indeed, although I use the word result in a non-definite kind of way.

The headline is simple enough, the case was remitted to the High Court for determination of the domestic judicial review issues raised as defence to possession. Court of Appeal overturned. The majority would also have made a declaration of incompatibility in regard to the Mobile Homes Act 1998, if the incompatibility had not already been removed by the passing of the Housing and Regeneration Act. Their Lordships declined to vary or amend Kay v Lambeth in the light of this appeal or the last minute submissions on McCann v UK.

Behind the headlines though, there is a hell of a lot of devil in the details. In particular, I think it is safe to say that there has been some movement on Kay v Lambeth, enough to make the situation not quite so bleak as it then appeared.

I’ll start with the majority and the judgments of Lords Hope and Walker, agreed by Lord Rodger

For those with attention spans of less than a year, the majority in Kay v Lambeth held to a formulation on Human Rights challenges to possession claims where the landlord’s right to recover possession is unqualified that was set out by Lord Hope in para 110 of Kay. To wit, the only situations in which it would be open to the Court to refrain from proceeding to summary judgment are:

(a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it to do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable: Wandsworth London Borough Council v Winder [1985] AC 461.

These will be called gateway (a) and gateway (b) below. In Kay the majority view was clearly that gateway (b) would mean a challenge on the basis of domestic public law grounds, not broader Convention grounds. The minority in Kay considered that there may be exceptional cases where the particular personal circumstances of the occupier may give rise to an Art. 8 defence.

In his judgment, Lords Hope held that the facts of Doherty – a gipsy family faced with summary possession after a Notice to Quit from a site that they had occupied for many years – were distinct from those of Connors v UK, Kay and indeed McCann, although most similar to Connors.

Here too was a unqualified right to possession by the local authority, where the decision to exercise that right was unchallengable under s.6(1) HRA 1998 as it was acting to give effect to the provisions of statute – s.6(2)(b). (Both Jan Luba QC for Doherty and Philip Sales QC for the Secretary of State challenged this point and it was not uniformly accepted – see below).

This was not a common law possession issue, but, because of the specific exception of local authority caravan sites from the Caravan Sites Act 1968 and the Mobile Homes Act 1998, an exercise of a specific right to common law possession given by statutary enactment – such that common law rights are effectively permitted by statute. (Again, not uniformly accepted).

Given this, and the Dohertys’ position as gypsies, the Connors issue of gateway (a) incompatibility applies – unjustifiably discriminatory statute. Because s.6(2)(b) applied, there was no possibility for the Courts to interpret the statute in accordance with the HRA (s.3(1)), leaving a declaration of incompatibility as the gateway (a) resort. As a result of the passing of the Housing and Regeneration Act, which corrects the issue, a declaration is not neccessary.

But gateway (b) could also apply. In Kay, the defence on public law grounds was limited to whether the decision to claim possession was ‘one that no reasonable person would consider justifiable’. Lord Hope points to his own comment at para 114 of Kay that the grounds of challenge to a decision to bring a claim were whether it was ‘arbitrary, unreasonable or disproportionate’. So gateway (a) and (b) work together to address the incompatibility of lack of procedural safeguard. If the statutes can be effected by the court in accordance with article 8 under gateway (a), fine. if not then it is open to the defendant to argue that that court must be satisfied that, on the basis of the grounds the claimant gives for its decision to seek possession, the decision is not Wednesbury unreasonable [para 53] (What grounds given for the decision? – this is summary possession!)

On the facts of this case, gateway (b) might have give an effective defence to the appellant. Gateway (b) provides an effective procedural protection. But, at para 55. Lord Hope says:

I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim which it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.

Lord Hope’s address to McCann, at paras 15-21, is solely in terms of the issue of incompatibility and ‘objective standards’ of an arguable case. There is no address to the issue of whether domestic judicial review grounds and a consideration or proportionality are commensurate, despite McCann’s express view on this. But Lord Hope’s suggestion that judicial review grounds could address disproportionate decisions [para 52] and the hints at para 55 may indicate a broader set of grounds for public law defence to unqualified possession claims than just Wednesbury unreasonableness.

Lord Walker’s judgment broadly ends up at the same point. However, Lord Walker spends some time to point out that the statute/common law distinction was not at issue in Kay, in order to support the view that s.6(2)(b) applies in the present case – implementation of statute not common law is at issue. Accordingly, Lord Walker agrees on a declaration of incompatibility via gateway (a) and also that it is not now required.

On gateway (b) Lord Walker, who was in the minority in Kay, is not happy about the distinction between HRA grounds and ‘traditional public law grounds’ [paras 108 -110]. He remains unsure that s.6(2)(b) applies to what are common law possessions. In view of McCann, he is even more concerned about the separation of HRA and JR grounds [para 116]. In fact, the circumstances where a viable defence appears may not be as exceptional as he thought in Kay, in view of Local Authorities looking to avoid contested possession claims via ‘relinquishing notices’ as in McCann (Birmingham and others should rethink their policy).[para 121-122]. The Court’s consideration of any gateway (b) defence should be focussed on the Local Authorities’ decision making process.

Lord Rodger agrees with Lords Hope and Walker, with nothing further.

Lord Scott’s judgment suggests that traditional judicial review procedure should be amended to allow considerations of disputed fact [para 68] as a part of gateway (b), and also that the defendant’s personal circumstances might well be a factor to which the local authority should have regard in making the decision on a possession claim, and therefore open to an examination by the court of whether the decision was unreasonable and disproportionate.[para 70]

Lord Scott did not see the need for a declaration of incompatibility in the present case, Kay having removed any Art 8 incompatibility found in Connors [para 80]. There is also a spectacularly ill-humoured and, in my immensely humble opinion mistaken attack on McCann at paras 82 – 88.

Lord Mance agrees on remitting the case to the High Court for gateway (b) consideration, but does not agree on an (abortive) declaration of incompatibility. Although the possession claim was a statutory matter [ para 132], the availability of gateway (b) means that the statute is not incompatible with Art 8, although the statute may well have been incompatible per se. In any case, the challenge in Doherty was that if Art 8 was not available to him to rely on in one form or another, this was incompatible with convention rights. No incompatibility of specific statute was raised [para 154]. 

On gateway (b) Kay excluded convention grounds [para 136] but this case was not the same as Kay. In Kay, the challenge was to the local authority’s decision to enforce its undoubted right to possession. In Doherty, the challenge was to the validity of the decision to give a notice to quit, which is a pre-condition to any right to possession [para 157].

In Qazi, Connors, Kay and McCann situations, a Local Authority has discretion as to whether it undertakes the steps necessary to resume possession, or whether to bring proceedings. It arguably cannot be described as action ‘to give effect to’ or ‘enforce’ a statutory provision which may be considered incompatible with Convention rights. The Council is giving effect to its own evaluation of the position and in doing so is obliged to respect Convention values. Non-compliant decisions should therefore be challengeable under the Wandsworth LBC v Winder principle [para 158]

In the present case, the decision to bring possession proceedings could not be considered as ‘giving effect’ to statute, so s.6(2)(b) did not apply and would not hinder a challenge on Art 8 grounds to the validity of the notice to quit and thus a defence to the possession claim [para 159].

Kay is distinguishable on the basis that this case was a challenge to the validity of the notice to quit [para 160-161]. This case should be remitted to the High Court to consider an Art 8 challenge to the validity of the notice to quit – a challenge on Convention as well as conventional judicial review grounds. Thus any incompatibility with statute is removed [para 161]. Lord Mance regrets that it was not possible to vary Lord Hope’s ‘para 110′ (above) to enable Convention grounds for challenge.

And there we are. A majority which isn’t, as Lords Hope and Walker have significant differences in their views, with Lord Rodger agreeing with both. Judgments which suggest that the Kay formulation of judicial review grounds for defence have been extended, or not, or maybe should be taken with a bit more latitude than Kay apparently decided, but not so far as full Convention grounds, unless they should be considered.

I’ve no time for a properly considered, critical view, but at the very least, a defence on grounds of unreasonableness of the decision to bring proceedings on a summary possession claim has been acknowledged to be available, to supposedly address proportionality and that it is more likely to be raised and indeed justified than Kay apparently permitted.

A few quick points.

Their Lordships generally regretted that they hadn’t been constituted as a 7 strong panel, in the light of the late arrival of McCann. A 5 strong panel simply could not change the decision of the panel of 7 in Kay.

The gateway (b) defence only applies to summary possession proceedings brought by public bodies (now potentially including RSLs after Weaver).

The proportionality issue is seen as a matter of the decision brought by the landlord – so only applies to public landlords and their decisions – not to the decisions of the court.

Where statute provides specifically for a mandatory procedure, it is likely that a full challenge to compatibility is the only option – and extremely unlikely to be successful.

There is much else to digest, whether obiter or not part of the ratio decendi. I may well return to this shortly. For the moment, I going to start work on the public law defence for a summary possession case that has just dropped into my lap, and I’m grateful that Doherty at least gave some wriggle room on that.

Any CLP people care to contribute views?

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Aaargh

Published
by
NL
on 30/07/2008
in Benefits, Housing law - All, Possession and Trusts and Estoppel
. 6 Comments

Started on Doherty, but on closer inspection, the Lords have also given me R (On The Application of M) (Fc) V Slough Borough Council and R (On The Application of Heffernan) (Fc) V The Rent Service to deal with, and possibly also Yeoman’s Row Management Limited and Another V Cobbe. All here.

Damn them, damn, damn, damn. Thankfully, the Court of Appeal held off handing down anything of interest – for here at least.

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Doherty handed down – more later

Published
by
NL
on 30/07/2008
in Housing law - All, Licences and occupiers and Possession
. 3 Comments

Doherty (FC) (Appellant) and others v Birmingham City Council (Respondent) [2008] UK HL 57

That’s 79 pages of reading to do…

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Children Act – 'requires accommodation'

Published
by
NL
on 29/07/2008
in Community care, FLW case note, Homeless and Housing law - All
. 13 Comments

This is a significant case on whether Social Services or Housing Departments have a duty to accommodate a homeless child and whether a s.20 Children Act duty arises.

G, R (on the application of) v London Borough of Southwark [2008] EWCA Civ 877 was a case in which a 17 year old child, G, who was initially living with his mother following a successful asylum application, could no longer stay at that home. He presented to Southwark Social Services and after assessment, was referred to the HPU for accommodation under Part VII.

The issue in the judicial review and in this subsequent Court of Appeal hearing was the validity and meaning of the distinction between ‘requires accommodation’ and ‘requires help with accommodation’ as set out in the Circular LAC (2003) 13 as guidance on s.17 and s.20 of Children Act 1989 as amended.

Briefly, the facts were that Southwark performed a s.17 assessment (under threat of JR by Fisher Meredith) and concluded that G was in need of help with accommodation, not requiring accommodation under s.20. He would therefore be satisfactorily aided by Part VII homelessness procedures by the housing department. G sought Judicial Review of this decision. The JR application was effectively on the basis that a child who fell under s.20(1)(c), a G did, was owed the s.20 accommodation duty. That claim failed on the basis that Southwark had assessed and their evaluation was that G did not ‘require accommodation’, Simon J citing the 2003 Circular specifically. G also sought at hearing to raise the rationality of the decision, but this was refused permission. G appealed.

At appeal, G argued that

i) the assessment on its face showed that G did “require accommodation”;
ii) it was accordingly unlawful for Children’s Services to decide that he did not require accommodation but only “help with accommodation”;
iii) in any event there was no warrant for drawing any distinction between requiring accommodation and requiring help with accommodation. The only proper distinction was between a child who required accommodation because he did not have accommodation and a child who did not require accommodation because he already had it. [para 15]

In a split decision, the majority of the Court of Appeal decided that the 2003 Circular was lawful. Although s.20 Children Act did not draw an express distinction between ‘help’ and ‘requiring’, s.17(6) enabled provision of accommodation for children that was not under s.20, thus presupposing that not every child, not even every child who meets s.20(1) criterea must require accommodation under s.20. H, Barhanu and B v Wandsworth Hackney and Islington [2007] 2 FLR 822, 839 approved, with the emphasis that:

a local authority should decide whether the child requires to be provided with accommodation or merely needs ‘help with’ accommodation without regard to the implication of his being or not being a looked-after child. [para 23]

That there was a referral to the HPU did not equate to accommodation being required. In the decision letter, the HPU was one agency amongst others that would be addressing G’s needs and it may not be the HPU providing accommodation [This is not a very satisfactory argument at all, as far as I understand what is meant, which is not easy.]

For these reasons there is no challenge to the rationality of Southwark’s decision and the appealed dismissed. This was the majority judgment of LJ Longmore and LJ Pill.

LJ Rix held the opposite view strongly [paras 75-77]. I quote at length, because it strikes me as the more accurate judgment:

I regret that I am therefore unable to see the matter as Longmore LJ and Pill LJ see it. If one addresses the decision letter or the arguments and submissions made by or on behalf of Southwark, it seems to me to be plain that Southwark has attempted to say that it appears to it that G does not “require” accommodation because it can be provided to him by the housing department. It is only in such circumstances that what is said to be needed by G is “help with accommodation” rather than the provision of accommodation itself. It has in truth been recognised that G requires accommodation, but because it is said that that can be provided by the housing department, therefore it is said that all that G needs from the children’s services department is “help” in referring him to the HPU. However, that is, for all the reasons discussed in the jurisprudence which in my judgment is clearly helpful to G, either a side-stepping of Southwark’s obligations, or perhaps proceeds from a lack of understanding about their obligations. For instance, the argument has been addressed that the Housing Act regime takes precedence over the Children Act regime. That, however, is in my judgment incorrect, as seems plain on the wording and history of the statutes themselves, but has in any event been confirmed by Baroness Hale in Hammersmith and Fulham. Moreover, in Wandsworth, Hackney and Islington Holman J, applying the analysis in R v. Barnet, has demonstrated that, where it applies, the section 20(1) specific duty takes precedence over the general powers or duties in section 17.

It appears to me that Longmore LJ has come to a different conclusion because he regards the local authority as having a broad discretion, for the purposes of section 20(1) and the question whether or not the child “appears to them to require accommodation”, of deciding not so much that question but rather the broader one of whether or not the child appears to them to be in need of being “looked after”: see paragraphs 27/28 above. This ties in with passages in the LAC 13 guidance and in Mr Brims’ assessment to which prominence has understandably been given at paragraphs 4, 19 and 25 above. Therefore, it appears to be suggested that in the case of a resourceful teenager of 17, his need for accommodation, however genuine it appears to be for the purposes of the three situations provided for in section 20(1), can be dealt with merely by providing “help” towards the acquisition of accommodation provided by the housing department under the Housing Act regime. Thus, it is said, Southwark’s view of the matter, that “help” is all that is needed, not “accommodation” itself, is a legitimate response.

In my respectful judgment, however, that is not the case. The test under section 20(1) is not the broad test of whether the child in question needs to be “looked after”, but the much narrower test of whether the child appears to require accommodation as a result of finding himself alone in any of the three situations set out in that sub-section. The need for accommodation in those settings is the test for taking the child into the looked after system. In this respect section 20(1) can be compared, for instance, with section 20(3), where the local authority has a somewhat wider discretion (“whose welfare the authority consider is likely to be prejudiced”). Similarly, section 20(4) gives to the local authority a discretion (together with a power rather than a duty) to provide accommodation “if they consider that to do so would safeguard or promote the child’s welfare”. In neither of those sub-sections, however, is it a statutory ingredient of the local authority’s powers or duties that the child should have found himself alone (to gloss thus the effect of the three triggering events under sub-section (1)). In Wandsworth, Hackney and Islington Holman J rejected the argument: it was essentially the argument addressed in the Wandsworth case itself (at para 53), but rejected; it was also an argument sought to be supported by reliance on a passage in the LAC 13 guidance quoted by Holman J at para 63 but commented on by him adversely at para 64 of his judgment (see at para. 68 above).

I would have to say I’m with LJ Rix on this one. Even if one accepts the existence of a ‘requires’ v ‘help with’ accommodation distinction, neither LJs Longmore or Pill deal with what the distinction might actually mean in practice, aside from some references to Southwark’s report discussing G’s ‘resourcefulness’. After all, if the decision is to be made ‘without regard to the implications of being or not being a looked after child’ then having identified housing as a primary need in the assessment pretty much sorts the matter for s.20, but apparently not…

From the account of the pleadings, it seems as if LJs Longmore and Pill had restricted the issue that they were prepared to consider unduly – to an appeal on permission for JR on grounds of irrationality – and having reached the view that Southwark’s decision was not unlawful apparently decide that it was not irrational for that same reason [para 28]. LJ Rix sees the appeal as on the issue of whether accommodation should have been provided under s.20 generally.

I hope Fisher Meredith can take this one to the Lords. It is a messy judgment that leaves Local Authorities at liberty to avoid s.20 accommodation duty by referral to the HPU and a Part VII Housing Act 1996 duty.

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A modest proposal

Published
by
NL
on 29/07/2008
in Housing law - All and Various (non-housing)
. 9 Comments

October, new post qualification job and all, is going to be something of a crunch point for this blog. Time, which has been very tight for the last few months, is simply not going to be available to keep Nearly Legal going in the same way. There are three options that I can see:

1. Nearly Legal stops updating and the archive just sits here. Not a good option – I find the blog useful and interesting and I hope others do.

2. Things totter onwards at a much reduced rate. This would be difficult to keep up and means missing out useful content.

3. Nearly Legal becomes a collaborative project. After all there is no requirement that this be a one person project. Although I do receive information and updates from a number of people both on the blog and behind the scenes (thanks – you know who you are), I wouldn’t have thought of this a year ago, or even a few months ago. But I have been assured in various recent off-blog conversations that Nearly Legal now has quite a widespread readership in the housing law sector – solicitors, barristers, advice workers, and local authorities. This is immensely gratifying and I hope means that people find the blog of use and interest. Of course, unless people comment or email, I have no idea at all who is reading, just the numbers. But the numbers have gone up quite dramatically over the last few months as well. The blog as a whole now regularly gets over 12,000 separate page views and something like 6,000 unique visitors each month. (Of course that 6K includes repeat visits, but not by me. That would add another 1000 or so). For an extremely specialist blog, those aren’t bad figures at all, I think.

With a couple of months to go before the likely deadline, I would like to get people’s – your – views on two proposals for new developments at Nearly Legal. Please let me know what you think, either in the comments or via email – the address is on the ‘about’ page.

Proposal 1. What I am considering is a group of regular contributors. Not guest posts, although that could also be fine, but regulars able to take on a proportion of the updates (whether chosen by rota or by subject, I’m not sure). I intend to keep on posting in part and to serve as editor otherwise.

I have been and will likely remain anonymous, at least in the short term. But this would not be a requirement. Contributors would chose their attribution, anything from anonymity to full attribution, including firm or chambers. So firms, barristers and chambers could view contributing as helping to add value to the brand – hint, hint. Contributors would retain their copyright in their posts, subject only to a licence for posts to be used in relation to the blog, obviously.

I’ve not seen any multi-contributor law blogs other than those produced by a particular firm. I think that a ’sector’ based blog would be a very interesting proposition. I’m not going to pretend that there isn’t quite some effort involved in turning out posts, so potential contributors need to be aware of that.

I would be delighted to hear from anyone and everyone who would consider becoming a regular contributor – no commitment at this stage, honest.

Proposal 2. This follows on from thinking about a ’sector’ blog. I’ve been struck by the way in which some posts here have ended up with comment threads that took discussion and information far beyond the original post. But, because of the structure of a blog it is currently only me that gets to post and so to start a topic.

Given that a fairly large part of the sector now read Nearly Legal (I just love saying that) and quite a few of those comment or pass on information, I was wondering whether an online forum, in addition to the blog, would be a useful thing.

It would need to be members-only for posting, to avoid a mountain of spam, although anyone could join and reading would be open to all. The idea is that anyone could post news, information, practice issues, questions and answers on just about anything sector related.

I want to hear from as many people as possible on whether or not this is a good idea – whether a forum would be used. A lively forum could be of great value to people, but there is nothing more depressing than a forum without responses, as the tumbleweed blows through.

These are my modest proposals for a great leap forwards. Something will have to change, as unfortunately Nearly Legal has taken off in an exciting way just at the point that I won’t be able to sustain it alone. The possibility is there that the blog will just peter out. On the other hand, I think there is also the possibility that Nearly Legal (we may have to change the name) can turn into something rather more than a one person blog, something quite new in terms of involvement and value.

What do you think? Or are you all on holiday?

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Incoming

Published
by
NL
on 29/07/2008
in Housing law - All and Possession
. 3 Comments

The House of Lords is due to hand down judgment in Doherty v Birmingham tomorrow (30/7). This will include their Lordships’ first take on McCann v UK.

I’m aiming to have some sort of case note up by tomorrow night. It will be the start of a busy patch for judgments.

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Mentioned in dispatches

Published
by
NL
on 25/07/2008
in Community care, Housing law - All and Leasehold and shared ownership
. 0 Comments

A couple of cases came up today, one at the Court of Appeal, one Judicial Review, that are of marginal or tangential relevance to housing law, but may well be of interest to some. I’m not doing reports but the cases are:

Liverpool City Council, R (on the application of) v London Borough of Hillingdon [2008] EWHC 1702 (Admin) on when and more specifically where a local authority’s duty to a ‘vulnerable young person’ arise under Children Act 1989. At issue was which local authority owed a duty where there was an initial refusal to accept the person was under 18 by one local authority and an intervening detention as asylum seeker, before release to the emergency care of another authority. The factual history is quite extraordinary. [Edit 28/7. Garden Court North have a useful commentary here]

Goldeagle Properties Ltd v Thornbury Court Ltd (Rev 1) [2008] EWCA Civ 864 on leasehold enfranchisement and specifically the notice period for applying to the Court for an order vesting interests in the nominee purchaser or deeming the notice withdrawn after an LVT determination pursuant to s.24 Leasehold Reform, Housing and Urban Development Act 1993.

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Homeless maladministration

Published
by
NL
on 24/07/2008
in Homeless and Housing law - All
. 7 Comments

Garden Court’s bulletin for 14 July (I’m catching up after the holiday) mentions a couple of interesting Local Government Ombudsman’s reports on the operations of Homeless Units in Lambeth and in Haringey.

Complaints 07/B/01138 & 07/B/05232 against Lambeth [link is to Word Doc] concerned delays by Lambeth in deciding on homeless applications. The Code of Guidance states that decisions should be made within 33 working days of application. In the case of one complainant, the decision had taken 9 months, leaving her in hostel accommodation with her baby. In the case of the other, the decision took 10 months while she and her child lived with family and friends.

The reason, the Ombudsman found was that:

In 2007 Supply and Demand underwent a “root and branch” reorganisation resulting in significant changes to the way in which all services are arranged and delivered, including the creation of an enhanced Prevention and Options Service. New structures came into effect in April 2007 and included the movement of six former Homelessness Assessment Team officers to the new Prevention and Options Service. However, the outstanding cases, approximately 250 in all, remained with the Homelessness Assessment Team, which also experienced a lack of leadership and guidance following the changes.

This resulted in a large backlog. Despite assurances to the Ombudsman that the backlog had been identified as an issue and a start made in December 2007 to clear it, Lambeth were saying in May 2008 that the backlog would take a further 18 weeks to clear.

The Ombudsman found:

That the Council did not take action to prevent these delays, and the fact that it appears to have been unaware of, or unconcerned about, the likely impact of removing half its homelessness assessment officers both amount to maladministration. Moreover, it seems to me that it took the Council almost eight months to realise that a backlog of assessments had developed and required positive action to deal with it. [...] The failure to take prompt corrective action once the backlog started to become apparent amounts to further maladministration.

In Complaint 06/A/12508 against Haringey [Link to Word Doc] something more than a managerial stuff up was at stake. The complainer made a homeless application to Haringey in January 2005. Haringey began making enquires and a month later accepted a duty. However, Haringey did not offer interim accommodation under s.188 on beginning the investigation. When, after a fortnight, the applicant’s solicitors wrote requesting s.188 accommodation as she had no other place to stay, Haringey replied that she ‘could apply for interim accommodation if ’she genuinely has nowhere else to stay’. The applicant was upset at her treatment and refused to make ‘an application’ for interim accommodation.

Haringey told the Ombudsman that:

The opening of a new homelessness application on 11 January 2005 does not imply necessarily that the council has reason to believe that she was homeless. It only indicates that she said she was homeless and we accepted a need to investigate … We had good reason to doubt [Ms David’s] assertion that she had been made homeless from [her address] or had, in fact ever lived there.

Haringey added that it considered:

that to accept an application under Part VII of the Housing Act is not necessarily equivalent to “having reason to believe” that a person is homeless

This, apparently was maintained on the basis of Counsel’s advice that it was a tenable view of s.183. Haringey added that the applicant’s solicitors had not ‘compelled’ the Council to offer interim accommodation on application as they could have done [so apparently it was their fault for not making the LA comply with its duty]. Haringey had apparently invented a whole new category of ‘enquiries’ under s.183, rather than s.184.

The applicant’s solicitors comments to the Ombudsman pointed out that Aweys v Birmingham had confirmed that the threshold triggering the duty to make enquiries is low, and that what is required is a ‘belief’ that the applicant may be homeless, not that the Council be reasonably satisfied that the applicant is homeless.

The Ombudsman states that:

The Council has, at various times during its correspondence with Ms David’s solicitor and with my office, referred to the need to determine that there was reason to believe that she was homeless, and to its duty to provide Section 188 accommodation only where there was reason to believe that a person was homeless.  Sections 184 and 188 of the Act refer only to the need for authorities to have reason to believe that an applicant may be homeless. This is a crucial distinction, and it is of concern that the Council has confused the two tests. Establishing whether a person is actually homeless is part of the purpose of Section 184 enquiries: in line with Paragraph 3.10 of the 2002 Code of Guidance (and Paragraph 6.12 of the 2006 Code) (see Paragraphs 11 and 16), it is only when Section 184 has been engaged that the authority must make inquiries to satisfy itself whether the applicant is homeless or threatened with homelessness. It is therefore of concern that the Council believes that it needs “to satisfy itself that it has reason to believe that a person is genuinely homeless” [my italics] before considering whether it needs to secure interim accommodation for him or her (see paragraph 31). The test that it should have applied involved a lower threshold for the applicant to meet.

Exactly. That sounds like a clear statement of the law. Authorities can’t invent new thresholds of belief required or new ‘preliminary’ enquiries for themselves.

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Plaudit

Published
by
NL
on 23/07/2008
in Various (non-housing)
. 2 Comments

I have been reading Usefully Employed’s blog pretty much since it started. It was always an interesting read on employment matters and broader topics. But I have to say that since March, with a redesign, some added features like an EAT decisions feed, and frequent, superbly clear and well written posts on Tribunal, EAT and statutory employment related matters, it has really come in to its own. Try the post on the contentious Christian Registrar case Ladele v LB Islington as a sample.

I do feel that there are still far too few substantive law blogs existing in the UK, certainly outside those dealing with IP law. Those that do exist should be celebrated, not least because it is hard work to keep one going. When they are done with clarity and elegance, it is worthy of note. I would therefore like to commend Usefully Employed to you as a first rate law blog.

(Disclaimer – I am not an employment lawyer, so make of that what you will, and we both share a fondness for the Wordpress K2 theme. Oh and UE has left a pleasant comment on this blog on occasion. No money has changed hands).

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