Archive for May, 2009

Article 6, outsourced reviews and bias.

Published
by
NL
on 31/05/2009
in FLW case note, Homeless and Housing law - All
. 0 Comments

The outsourcing of s.202 Housing Act 1996 reviews by local authorities to private, commercial bodies came under scrutiny in Charlotte Augustin v London Borough of Barnet, Central London County Court, 22 May 2009 (no report available online yet). There are a couple of Court of Appeal cases on the same issue coming up, so we will be revisiting it.

This was a s.204 appeal, heard by Mr Recorder Hollington QC, of a s.202 review decision, purportedly by Barnet, upholding their decision that an offer of temporary accommodation had been suitable. The s.202 decision was actually made by Mr Minos Perdios, the director of Housing Reviews Limited (HRL), a private limited company.

The s.204 appeal was on grounds that:
1. The review was a breach of Art. 6, as it was not a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law
2. Alternatively, the review was vitiated by common law bias, as a fair minded observer would perceive there to be a real possibility of bias towards Barnet.
3. The decisions should be quashed on its merits as failing to take into account the level of support the appellant received from family, making errors of fact on traveling times, unreasonable in its decision that the appellant did not need the help of her family and unfair in not giving the appellant a chance to respond to the finding that the appellant could have found a new local nursery. (The issue of suitability turned on the location of the property).

The Court held that the review was vitiated by the appearance of bias on the part of Mr Perdios, but went to to consider the other grounds of appeal, including finding that there was an Art 6 breach in delegating the review decision to an independent contractor, and that the decision was flawed in that all material factors relating to family support had not been taken into account.

On apparent bias, the Court noted that the website for HRL stated:

We have dealt with over 3,500 reviews with unparallel [sic] success. Out of these cases 158 have been appealed in the County Court with 95% of cases successfully defended.

and under ‘course aims’:

The course will also provide ideas on writing s.184 decision letters. Too often courses do not provide homeless officers with the tools needed to make adequate enquiries, be able to obtain all the relevant information during the crucial initial interview through effective questioning and use the information obtained to write a ‘watertight’ s.184. The course also provides practical advice on how to write a ‘watertight’ s.184.

The Court found that the references to ’success’ and to ‘watertight’ decision-making could only be references to findings adverse to the applicant. It was wrong for a person acting in a quasi-judicial capacity to be focussing on such cases. In a position where the only relationship with Barnet was commercial, there were no professional constraints or procedural safeguards beyond those in the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, and no evidence of Mr Perdios’ skills or experience beyond a mention that he used to be a local authority review officer, there was a clear appearance of bias in his choosing to promote himself in these terms.

[A list of Councils for which Mr Pedios/HRL has provided services is on HRL's site, here. The site has been edited a little, removing the reference to success in appeals, but the passage on 'watertight' s.184s is still there.]

On Article 6, Barnet had relied on the Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996 and the 1999 Regulations, arguing that it was permitted by Parliament to contract out the review functions and no other safeguards had been imposed other than the 1999 Regs. The court should be very reluctant to hold Parliament’s intention fell foul of Art 6.

However, the Court found that, while there is a power to contract out the s.202 function, it depends on the terms and circumstances of the sub-contracting as to whether there is an Art 6 breach. The 1996 Order contemplates that the Local Authority will exercise its sub-contracting power in a manner as will avoid a breach, e.g. by not contracting to an organisation whose integrity, competence and experience were clearly deficient, even leaving bias out of the picture. No compliance with the procedural safeguards in the 1999 Regs nor any power of judicial review could cure the manifest defects in such a case. And deciding Art 6 compliance requires a view to the composite decision-making process, including but not limited to the judicial review process (R (Alconbury Developments Limited) v SS for the Environment, Transport and Regions [2003] 2 AC 295, Runa Begum [2003] 2 AC 430 and Adan v Newham LBC [2002] 1 WLR 2120. Ironically, in Adan, the applicant’s submisison was that the LA was obliged to contract out, to ensure independence. This was rejected by the Court of Appeal).

Hale LJ and Brooke LJ in Adan agreed that the constitution and procedures of the body to whom reviews were contracted out would be relevant to judging compliance with Art 6. In Runa Begum, the Lords expressed concerns over the Art 6 compliance of the independence of ‘a contracted fact finder, whose services could be dispensed with’ (Lord Hoffmann) and Lords Bingham and Millett doubted that ‘the exercise of quasi-judical powers is a function of the authority within the meaning of the 1996 Order’ and doubted that a person ‘appointed ad hoc by the authority directly concerned and lacking any kind of security of tenure could constitute an independent tribunal established by law for art 6(1)’. These were all dicta in those cases, though.

The Court found that the review was ‘a classic administrative decision, involving a high degree of discretion and subjective judgment’. The decision maker must be expert and also take into account policy considerations,, such as local housing and financial constraints. The ‘was a decision that Parliament had delegated to a democratically accountable institution, not the courts.’ Article 6 respected that democratic principle (per Lord Hoffmann in Alconbury, para 69).

When Barnet contracted out the review function to a person such as Mr Perdios and HRL, the decision-making ceased to be that of a democratically accountable institution. The respondent had relied on that very independence in arguing no breach of Art 6. It follows that all the reasons for the deference to the Local Authority’s judgment and discretion that are present in Article 6 fall away.

In order to comply with Art 6, contracted out review functions would either have to mean greater powers of review on merits for the courts than are given in s.204 or greater safeguards in the procedure of the review process than those in the 1999 Regulations. The review process in this case breached Art 6.

[Edit: It should be noted that it was common ground in this case that it did involve a determination of civil rights, but Barnet expressly reserved the position to argue to the contrary in the House of Lords.]

This is, of course, just a County Court s.204 appeal. It is also primarily decided on the appearance of bias rather than the article 6 point, but the argument is interesting and clearly has further to go. Two previous s.204 appeals on the issue are mentioned in relation to Mr Perdios’ review decisions and Art 6 – HHJ Dedman at Southend on Sea County Court in April 2008 found no objection, while HHJ Barnett QC at Colchester Couty Court in October 2008 held there was a valid objection. We’d be happy if anyone with any further information on those cases would contact us.

So, we’ll see what the Court of Appeal makes of the issue this time round. Again, any information on those forthcoming appeals gratefully received.

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"Something of a mess"

Published
by
J
on 29/05/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 1 Comment

We first noted Defence Estates v L and another [2009] EWHC 1049 (Admin) a few weeks ago and now the transcript is available.

The history

L was married to an army officer. He was a violent alcoholic who abused both his wife and their daughters. In 1989 he resigned following a court martial which found him guilty of ungentlemanly conduct. The Army then (in September 1989) – on compassionate grounds – arranged to house L and her two daughters in Leeds, where the children attended school.

The premises in Leeds were said to be temporary until L could secure housing from the local housing authority. In September 1990 the licence to occupy was said to be terminated and in July 1993 a possession order was made (I pause here to note that the effect of para. 11, Sch. 1, Housing Act 1988 is to prevent any security of tenure from arising). Following the possession order, an attempt was made to secure alternative accommodation but this came to nothing. L also removed herself from the Leeds City Council priority housing list. It should be noted that, by this stage, it was clear that L, one of her daughters and her granddaughter, had a variety of physical and mental illnesses and disabilities.

In 1996, the Ministry of Defence reorganised the way in which it managed its property and undertook a sale and lease back agreement with Annington Homes. In October 1999, a decision was taken that L’s property was surplus to requirements and a fresh notice to quit was served. A warrant was then sought pursuant to the 1993 order but that was refused as it was held that there had been a fresh grant since 1993. A third notice to quit was then served in 2005.

Having resolved to seek possession, the MOD “recognised that there was a duty to consider if and how [it] could assist the defendant through the process of recovery of possession” and arranged meetings with Leeds. The upshot of those was that unless and until a possession order was granted, there was very little that could be done as regards re-housing. Possssion proceedings were issued in the Leeds county Court in June 2007. A defence and counterclaim was served in September 2007 which contended inter alia, that the decision to seek possession was unreasonable and unlawful so as to amount to a violation of Article 8.

s.49A Disability Discrimination Act 1995

L also sought to argue that s.49A Disability Discrimination Act 1995 gave her a defence in that no or no adequate regard had been had to her various health needs and disabilities. Collins J dismissed that point shortly, holding that “to suggest that section 49A enables someone who otherwise would fail to have any defence to a possession order… is to take that much too far.” (at [23]).

Article 8 and possession proceedings

His Lordship then turned to consider the law on Article 8 and possession proceedings. The law was, he observed “far from as clear as it should be” (at [24]). The position was:

(a) that public law defences based on the alleged irrationality of a decision to seek possession could be raised as a defence in the county court - Wandsworth LBC v Winder [1985] AC 461

(b) that Article 8 could not be relied upon to defeat a proprietary or contractual right to possession – Harrow BC v Qazi [2004] 1 AC 983

(c) that decision had been doubted by the decisions of the European Court of Human Rights in Connors v UK [2005] 40 EHRR 185 and Blecic v Croatia [2004] 41 EHRR 13, which had suggested that Article 8 might come into play in situations were the decision to evict was “manifestly without reasonable foundation” or “manifestly disproportionate”.

(d) the decision of the House of Lords in Kay v LB Lambeth [2006] 2 AC 465 had attempted to deal with these two ECtHR cases and had concluded that the right of a public authority landlord to enforce a claim for possession would, in most cases, automatically be justified under Art. 8(2). Parliament was entitled to strike the appropriate balance for Art. 8(2) purposes but, in an exceptional case, the defendant should be able to assert that the power to recover possession should not be used.

(e) in Doherty v Birmingham City Council [2008] 3 WLR 636, the House of Lords had concluded that, in order to raise an exceptional defence of the sort contemplated in Kay, the defendant would have to show that the decision to seek possession was Wednesbury unreasonable. (His Lordship was minded to agree with Lord Mance, in the minority in Doherty that, if the decision to evict would amount to a violation of a persons human rights, then the decision must be unreasonable, but his Lordship accepted that this argument was not open to him).

(f) in Doran v Liverpool City Council [2009] EWCA Civ 146, the Court of Appeal had held that any challenge must be to the decision to bring possession proceedings, not to the possession proceedings themselves. In this regard, the court’s powers of suspension were relevant.

The decision

In the present case, what was said was that it was irrational to bring the proceedings because of the lengthy period of occupation and the personal circumstances of the defendant and her children. However, there was no obligation on the claimant to make enquiries of this nature and, in any event, a personal disability could not afford a defence to possession proceedings. Moreover, whilst there had been an unacceptable delay in bringing the proceedings, the Ministry of Defence had adduced  evidence of the need to recover possession and make use of the property.

It would be a rare case where it truly was irrational to recover possession,given that most decisions to seek possession were only based on partial information known at the time (at [55}). In any event, the county court would be obliged by s.6(1) Human Rights Act 1998 to make a possession order in any event. The value to making factual findings was, however, that it would assist with deciding how long to suspend the order for (although, as this was a notice to quit case, the court was limited to 6 weeks). In addition, the decision to seek a warrant could be challenged (presumably by JR), relying on those findings of fact (at [56]).

However, his Lordship did accept that “there may be cases where it wold be incumbent upon the relevant authority to assist, insofar as they are able, in seeing that alternative accommodation would be provided” (at [49])

Where does that leave us?

His Lordship – rightly – criticised the decisions in Qazi, Kay and Doherty for failing to give any clear picture of the law, but does his Lordship’s judgment help any more? Why, for example, does he take the view that there may be a duty to assist with providing alternative accommodation? Is this part of an Article 8 duty or a freestanding public law duty? Why would it not be a defence to show that a decision to seek possession was Wednesbury unreasonable? Surely the whole point of Kay and Doherty is that it is a substantive defence? If it isn’t, then how on earth can the UK contend that domestic law ever complies with the procedural safeguards required in McCann v UK and Cosic v Croatia?

I’m also surprised that it was not argued that possession pursuant to a notice to quit violates Art. 8, following McCann and Cosic.

Finally – and I think this is quite a big one – it is wrong to say (as His Lordship does and as Doran did) that Kay, Doherty et al are authority for the proposition that a challenge to the decision to seek possession has to be framed as a Wednesbury unreasonableness challenge. The challenge can be on any of the grounds of public law, irrationality, illegality or procedural impropriety (see CCSU and “Doherty: The Facts of the Matter” Andrew Arden QC [2008] 11 JHL 98).

Wednesbury itself is not just about perversity but includes bad faith, dishonesty, failure to take into account relevant factors and the like. In Kay, Lord Brown expressly stated that Connors could been argued as an “unfairness” challenge in the domestic courts and in Doherty, Lord Hope makes clear that the challenges are not confined to Wednesbury grounds.

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Not interesting enough

Published
by
NL
on 28/05/2009
in FLW case note, Homeless and Housing law - All
. 0 Comments

McKenzie, R (on the application of) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin) was a Judicial Review initially brought on grounds that the local authority refused to provide the claimant with temporary accommodation following her notification by the hostel she was living in that she would not be able to remain once her baby was born. In fact she was served notice to quit for three months after her due date. The hostel accomodation meant sharing a bathroom with another, male, resident.

The claimant applied to the LA as homeless and was told she was not homeless. She then brought judicial review proceedings on the basis that it was never reasonable, except in exceptional circumstances, for a pregnant woman in her third trimester to continue to occupy accommodation where any of the facilities were shared with a male who was not a member of her family, so she was homeless under s.175(3).

After issue but before hearing, the claimant had been housed by the LA, at about the time of the birth of her baby. The claim was therefore academic for the claimant, but she wished to pursue the claim on principle, for guidance, on the basis that

it is in the public interest to obtain the court’s guidance as to how local authorities should approach homeless applications by pregnant women by inviting the court to answer seven questions and to make nine declarations. At the core of the application is the contention that it is never reasonable (except in exceptional circumstances) for a pregnant woman in her third trimester (or even before) to continue to occupy accommodation where any of the facilities (bathroom, lavatory or kitchen) are shared with persons of the male sex who are not members of her family, with the result that she satisfies the requirement for homelessness in section 175(3) and the section 188(1) duty to provide interim accommodation is triggered, even though she as yet has no baby.

The Court found that Claimant must establish that two conditions are satisfied, the first being that a large number of similar cases exist or are anticipated and the second that her claim involves the resolution of a discrete issue which does not require detailed consideration of the facts, R (ex parte Zoolife International Ltd. v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) applied.

In this case, the Claimant had adduced no evidence on the first condition, merely asserting that a large number of similar cases existed.

On the second condition, the issues would either be fact sensitive or, as put by the claimant, require the Court to substitute its view for the words of s.175.

The Court therefore declined to decide the academic points raised.

There is a stern lesson there for anyone who casually thinks their JR application has merit in itself, regardless of merit to the client. If claiming broader point of public interest, you will need significant evidence on the scope of that interest, and put the questions to be determined very, very carefully.

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Why bother in the first place?

Published
by
J
on 25/05/2009
in Housing law - All and Leasehold and shared ownership
. 0 Comments

Since the Leasehold Reform, Housing and Urban Development Act 1993, leaseholder owners of flats in certain categories of building have been able to “collectively enfranchise” and force the freeholder to convey the freehold of the building to a nominee purchaser, normally a company formed by the leaseholders for this purpose. One of the (many) weaknesses in the 1993 Act is that it is possible for an otherwise qualifying leaseholder to be excluded from the enfranchisement process by other leaseholders.

The Commonhold and Leasehold Reform Act 2002 was supposed to prevent this problem by creating the “Right to Enfranchise” company. In outline, any attempt to enfranchise would have to be through the mechanism of an RTE company, with all leaseholders given the opportunity to join the process.

However, the RTE company provisions as provided for under the 2002 Act have never been brought into force. The Government was concerned that there would be practical difficulties in determining disputes between members (or potential members) of the RTE company and that it would be inappropriate for the company to resolve such matters itself via a general meeting; secondly, there was nothing to stop discrimination between members (or potential members) of the company in the distribution of the costs of the RTE company and, finally, potential members were entitled to join at any stage up to the purchase, thus making it almost impossible to determine the purchase price in advance.

The Government has now started a consultation process, to close on 3 August 2009, to decide how best to deal with these problems. The consultation paper is here and the ministerial statement is here. At the moment, the Government is minded to deal with these problems by repealing the RTE parts of the 2002 Act and starting again. .

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Straws in the wind

Published
by
chief
on 22/05/2009
in Benefits, FLW case note and Housing law - All
. 2 Comments

Yesiloz v London Borough of Southwark [2009] EWCA Civ 415 was concerned with whether a Turkish asylum seeker was entitled to housing benefit.

Ms Yesiloz arrived in the UK in the late 1990s and claimed asylum.  She moved into premises in Camden and claimed HB on 11 April 2006.  Her claim was rejected on the ground that she did not have a right to reside in the UK.  In January 2007 an Appeal Tribunal held that she was entitled to HB, but the Social Security Commissioner allowed the local authority’s appeal in June 2008.  Ms Yesiloz then appealed to the Court of Appeal.

In February 2008 she was granted exceptional leave to remain and was then succesful with a new claim for HB, so at issue was her entitlement from April 2006 to February 2008.

Legislation

The Immigration and Asylum Act 1999, s. 115 excludes entitlement to benefits, including HB, for persons subject to immigration control, “unless he falls within such category or description, or satisfies such conditions, as may be prescribed”: s. 115(3).

Regulation 2(1) of the Social Security (Immigration & Asylum) Consequential Amendments Regulations 2000 (SI 2000/636) states that s. 115 does not apply to people within four categories.  The fourth category includes people who are nationals of states that have ratified the European Convention on Social and Medical Assistance (ECSMA) and are lawfully present in the UK.  Turkey has ratified ECSMA.  Therefore Ms Yesiloz is saved by the Regulations from disentitlement under s. 115 of the 1999 Act.

However, that is not the end of her problems as it does not automatically qualify her for HB under s. 130 of the Social Security Contributions & Benefits Act 1992.  At the material time this was governed by Housing Benefit Regulations 2006 (SI 2006/213).  Regulation 10 of these Regulations provides that an individual who has no right to reside in the UK shall not be treated as habitually resident.  They are therefore a “person from abroad” for the purposes of Paragraph 1 of Regulation 10 and should not be treated as liable to make payments in respect of a dwelling.  It follows that they would not therefore be entitled to HB.

Paragraph 3B of Regulation 10 specifies a number of categories of people who should not be classified as “persons from abroad”.  Nationals of ECSMA countries are not included in this list.

So the central issue is whether Ms Yesiloz had a right to reside.

Right to Reside

It was accepted by Camden that Ms Yesiloz was lawfully present in the UK, but in Abdirahman v SSWP [2007] EWCA Civ 657 the distinction between a right to reside and a right to admission (or lawful presence) was drawn by Lloyd LJ, when considering a different set of regulations:

It seems to me plain that UK law makes a distinction between a right to reside … on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of … a “right to reside”.

On behalf of Ms Yesiloz it was argued that as people in the first three categories identified in the 2000 Regulations had a right to reside, then people in the fourth category should be treated the same way.  The exclusion of ECSMA nationals from the groups of people who should not be classified as persons from abroad was accidental and there was no public policy reason to exclude those in the fourth category from having the right to reside.  Pill LJ disagreed with this line of reasoning:

31.  Whether the appellant has a right to reside in the United Kingdom depends on the construction of the appropriate statute or statutory instrument, in this case regulation 10 of the 2006 Regulations. The appellant must establish that she has a right to reside. Otherwise she is a “person from abroad” and not entitled to housing benefit. Regulation 10(3B) specifies many categories of persons who are not “persons from abroad”. It was, and was intended to be, a comprehensive list. The need, in this context, for a clear and specific classification is obvious.

32.  The categories do not include nationals of states party to ECSMA. In those circumstances, such persons cannot be said to have a right to reside either because of their position in the schedule to the 2000 Regulations, or because the introduction of the concept of right to reside was primarily aimed at nationals of A8 states, or because there is no powerful reason in public policy for depriving them of the right to reside, or by reason of any combination of those factors. The inclusion of paragraph 4 in part 1 to the schedule to the 2000 Regulations, whatever its purpose, does not, in my view, carry for paragraph 4 persons the implication of entitlement to a right to reside.

33.  The points relied on are straws in the wind and, well though Mr Berry has attempted to make the most of them, they do not permit the words “right to reside” in regulation 10 of the 2006 Regulations to be construed so as to include the appellant.

Smith and Wall LLJ agreed with Pill LJ.  Appeal dismissed.

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And… relax

Published
by
NL
on 21/05/2009
in Assured Shorthold tenancy and Housing law - All
. 0 Comments

After the rather pressured posts of the last few days, time for a quick tiptoe through the Nearly Legal search logs for the search terms that brought people here that, let me be honest, are beyond even our considerable collective power to answer:

law on rabbit infestations

Unless you live next door to an inadequately secured rabbit farm – in which case nuisance is your friend – I suspect that you’ll find that housing law is, well, limited on bunnys and a surfeit thereof.

secret ways to break assured shorthold tenancy agreements

Secret? The mind boggles. Ways to break an AST that nobody except a shadowy hidden cabal of tenancy voiders know about? Alas, where is the Dan Brown of Landlord & Tenant? But of course, as a possessor of the hermetic codex of private sector tenancies, I would say that, wouldn’t I?

kafka housing what is

Look, I have spent years immersed in central European modernist literature. I have subsequently spent years frolicking through housing law. This is probably the only website on which your question would have a chance of being understood, let alone answered. But I haven’t got a clue, unless it is about a cockroach infestation.

i am a subtenant and i use the property for the sexual properties would i be liable under english law

Ummm, or in the alternative Ermm?

to operate legally i need to inform croydon council

There is a possibility that this is the same searcher as the previous question. Croydon Council beware.

And while we are here, may I lay claim to being one of the first, if not the first, to tell an unsuspecting hitherto tolerated trespasser that they now had a replacement tenancy, whatever their Council landlord told them – 9.25 am on 20 May. Any competition?

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Child 'requires accommodation'

Published
by
NL
on 21/05/2009
in Community care, FLW case note and Housing law - All
. 0 Comments

R (G) v Southwark [2009] UKHL 26 was the appeal to the House of Lords of this Court of Appeal judgment. At issue was whether Southwark could effectively avoid its s.20 Children Act duty to accommodate a homeless child by referral to the Housing Department by way of application under Part VII Housing Act 1996. The earlier post gives the factual background, but briefly G was 17 when he approached Southwark Social Services, after being thrown out of his family home and sofa surfing with friends. Southwark assessed him as having primary needs in housing and education, and suggested referrals to the HPU and to other agencies, including social services’ Family Resource Team. G was given hostel accommodation, which Southwark later asserted to be temporary acccommodation under Part VII HA 1996. G sought judicial review, which then went to the Court of Appeal, who upheld Southwark’s view, and thence to the Lords.

Southwark had argued that G did not require accommodation, but rather ‘help with accommodation’ because he would be eligible under Part VII HA 1996. In the Lords, Southwark’s submission, via Mr McGuire, was:

In deciding whether a child “requires accommodation” under section 20(1), the authority are entitled to take into account the other sources of accommodation which may be available to the child and conclude that he does not require social services accommodation at all. All he requires is help to find or acquire that other accommodation, under the authority’s general duty to provide services under section 17. He acknowledges that, before 2002, alternative sources of accommodation would not generally have included the homeless persons unit. Now that they do, however, the children’s authority are entitled to conclude that this will suffice, even if other services are also required, rather than the whole paraphernalia of becoming a “looked after” child. He stresses that section 20 should be read in the light of the local authority’s functions under in section 17, and prays in aid certain passages from the opinion of my noble and learned friend Lord Hope of Craighead, in R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208, at paras 81 and 100. [para 21].

G’s submission was simply that all the elements required by s.20(1) were met in this case. He therefore ‘required accommodation’ within the meaning of s.20(1) even if there was another way accommodation could be found for him.

The Secretary of State, intervening, said that the presumption must be that all lone children who meet the s.20(1) criteria must be accommodated by children’s services authorities “at least until their needs have been properly assessed and plans are in place to meet those needs” [para 20].

Baroness Hale’s lead opinion is very clear and, well, forthright.

It came as ’something of a surprise’ that the case had reached the Lords in the light of R (M) v Hammersmith and Fulham LBC [2008] UKHL 14. In that case the Lords had made it clear that when a child approached the housing authority for accommodation, they should be referred to children’s services for assessment under the Children Act. It had not been contemplated at that time that had M been assessed as falling under s.20(1) she might still have been referred back to the housing authority. As was said at para 4 of M v Fulham, the clear intention of the legislation was that chidren need more than a roof over their head and children’s services cannot avoid their responsibilities by passing them over to the housing authority. [Para 5].

The tone thus set, Baroness Hale points out that while children aged 16 & 17 were expressly included as having Part VII HA 1996 priority by SI 2002/2051, those children to whom a s.20 duty is owed and ‘relevant’ children who have been looked after by the LA are expressly excluded.

So, if a child is owed a s.20 duty, they are not eligible for Part VII purposes. The Children Act takes primacy over the Housing Act. The issue is, quite simply, what do the criteria in s.20(1) mean. As previous case law had shown, if a s.20 duty has arisen and the Council has provided accommodation, it cannot side step the duty by claiming to have acted under some other power [R(H) v Wandsworth BC [2007] EWHC 1082 (Admin); R(D) v Southwark LBC [2007] EWCA Civ 182; etc.]. In particular the LA can’t claimto have been acting under the general s.17(1) CA general duty. So it is only s.20 at issue here.

The case prayed in aid by Southwark, R(G) v Barnet, actually concerned accommodation for a child together with its mother. it was not in issue that the child was owed the s.20 duty, the question was did the duty extend to accommodating the family. The case actually highlights the primary duty owed to individuals under s.20 over the general duty to children and families in s.17. [para 25]

Granted, there may be some homeless 16 or 17 yo who are not owed a s.20 duty. But that is not the same as saying they are not owed a s.20 duty because they are or may be owed a HA 1996 duty. This is circular reasoning. A child who requires accommodation under s.20)1 is exclude from HA 1996 priority.They can’t be put back in to priority need by saying they do not require accommodation when clearly they do. [para 26].

It is not for the LA to decide that, because they do not like what the duty to accommodate involves or do not think it appropriate, they do not have to accommodate at all. R(A) v Coventry CC [2009] EWHC 34 (Admin) disapproved to the extent that it proposed reading into s.20(1) the words ‘under this section’ after requires accommodation. [para 27]. (our note on the case here).

S.20(1) involves a series of judgments, as set out in R(A) v Croydon LBC [2008] EWCA Civ 1445 at para 75:
1. Is the applicant a child?
2. Is the applicant a child in need?
3. Is he within the local authority’s area?
4. Does he appear to the LA to require accomodation?

But there may be cases where the child does have a home to go to, whether on his own or with family or friends, but needs help in getting there, or getting into it, or in having it made habitable or safe. This is the line between needing “help with accommodation” (not in itself a technical term) and needing “accommodation”. [para 28]

5. Is that need the result of:
a) there being no person who has parental responsibility.
b) his being lost or abandoned
c)the person caring for him being prevented from providing him with suitable accommodation or care. (This has a wide construction. Exceptions may include a 16 or 17 yo living independently, with a job and somewhere to live, without anyone caring for him, who then lost accommodation. This would not be s.20 but would be HA 1996 priority need).
6. What are the child’s wishes and feelings regarding the provision of accommodation?
7. What consideration (given age and understanding) should be given those wishes and feelings?
8. & 9. were not relevant here.

Every item in this list had been assessed in G’s favour by Southwark. Therefore the s.20 duty had arisen and Southwark could not side step it. This was enough to decide the appeal. [para 28].

The Secretary of State’s submissions were clear as to the result. But on s.17, while the Local Authority Circular LAC (2003) stressed that the ‘power to provide accommodation under s.17 will almost always concern children neding to be accommodated with their families’, it also said that ‘there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under s.17′. But before deciding this, the LA should carry out an assessment which should first establish if the child met the s.20(1) criteria. The Circular noted that some ‘older asylum seeking children had refused to become looked after although the CA was their only means of support’. In these cases, the Circular suggested that although the S.20(1) duty might appeared to be triggered, the LA might judge him competent to look after himself and provide help with accommodation without making him a looked after child.

Baroness Hale makes clear that, while this specific example might not trigger a s.20 duty by the step by step analysis above, insofar as the Circular suggests that the LA might have a choice between s.17 and s.20 based on whether the child needs to be ‘looked after’, it is incorrect. An evaluative judgment may be involved, but not a discretion [para 31].

The SoS submissions that once assessment has been completed and rehabilitation with the family failed, a child’s long term interests might be best served by support to move to independent living, raised the prospect of the LA deciding that the child was no longer in need. But the whole purpose of the leaving care provisions was to ensure help with moving to independent living of the sort normally expected from families. LAs ’should be slow to conclude that a child was no longer “in need” because he did not need that help or because it could be provided in other ways. [para 32].

Children’s Authorities have the power, under s.27 CA 1989 to ask other authorities, including housing, for help in the exercise of their functions, and that help must be provided if not prejudicial to the asked authority’s functions. This does not mean passing the buck on responsibilities, but assistance with discharging its duties. A housing authority cold be asked to make available a certain amount of suitable accommodation. [para 33]

Appeal allowed. G was accommodated under s.20 and is a ‘relevant child’ for s.23A(2) CA 1989.

Congratulations to Counsel for G, Ian Wise & Azeem Suterwalla, and particularly to solicitor Oliver Studdert of Fisher Meredith for seeing this one all the way through.

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House of Lords newsflash

Published
by
chief
on 20/05/2009
in Community care, Homeless and Housing law - All
. 12 Comments

The House of Lords has today given its judgment in the case of R (G) v Southwark [2009] UKHL 26.  We reported the Court of Appeal decision here.  A fuller report will follow on Nearly Legal in due course, but as we may not finish it today the headlines are:

  • The House of Lords unanimously allowed G’s appeal, Baroness Hale giving the leading speech;
  • He therefore was entitled to accommodation under s. 20 of the Children Act, not simply s.17 help with accomodation;
  • Rix LJ’s dissenting view in the Court of Appeal (which was preferred in our report of that decision) was therefore the better one.
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Tolerated Trespasser day

Published
by
NL
on 20/05/2009
in FLW article, Housing law - All, Tolerated trespasser and secure-tenancy
. 0 Comments

It is official, orders signed and everything. As of today, 20 May 2009, Schedule 11 of the Housing & Regeneration Act is in force, save for paragraphs 3(3), 8(3) and 14(3), which we are arguing about below. Housing and Regeneration Act 2008 (Commencement No. 5) Order 2009. SI 2009/1261

Also in force today – The Housing (Replacement of Terminated Tenancies) (Successor Landlords) (England) Order 2009. SI 2009/1262

So, replacement tenancies all round, then.

[edit - now confirmed on the DCLG site.]

[Edit: The SIs are not available yet on Gov. sites. Robert Latham has kindly passed on printer’s copies of the SIs but these are, of course, not official. Download the SIs:
SI 2009/1261 HRA commencement
SI 2009/1262 Successor landlords order

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More on tolerated trespassers

Published
by
J
on 19/05/2009
in Housing law - All, Tolerated trespasser and secure-tenancy
. 31 Comments

Following on from our post yesterday (and from a personal conversation with Robert Latham of Doughty Street Chambers) we can shed a bit more light on the forthcoming commencement of Sch 11, Housing and Regeneration Act 2008.

Firstly, the successor landlord order has not changed from the draft, which can be found here. The final order will be online shortly – we hope!

Secondly, the Government will be publishing some guidance and other information here, at some stage on Wednesday.

Thirdly, the reforms will come into force in both England and Wales.

Finally- and as trailed yesterday – the Government will not be bringing paragraphs 3(3), 8(3) and 14(3) into effect. This means that s.85(4) Housing Act 1985 and s.9(4) Housing Act 1988 will be unamended. But what does that actually mean?

s.85(4) as currently enacted provides that “if the conditions are complied with, the court may, if it thinks fit, discharge or rescind the order for possession.”

As amended, it would provide that “the court may discharge or rescind the order for possession if it thinks it appropriate to do so having had regard to (a) any conditions imposed under subsection (3) and (b) the conduct of the tenant in connection with those conditions.”

Now – there is quite an important difference between s.85(4) as unamended and as amended. The amended version is clearly a broader power to discharge or rescind and, most importantly, prevents arguments about the extent of the compliance with the order from being determinative of any application to discharge or rescind.

Let me take an example (borrowed from Robert Latham). Imagine, if you will, that a possession order is made against a tenant due to the ASB of her partner. The order is not an outright order for possession, but is conditional upon there being no further incidents of ASB. The partner then commits a further act of nuisance and, in response, the tenant seeks an injunction to keep the partner away from the property.

In that situation, it is clear beyond any doubt that, under the amended s.85(4), she could apply to discharge the order and the conduct of the tenant in relation to that order (i.e. that it had been an unwitting breach which she had taken steps to prevent) would merely be one factor to be taken into account. What matters under the amended s.85(4) is the conduct of the tenant, not whether there is a breach per se.

However, it is unclear as to the extent to which, s.85(4) as unamended would apply. On one view (Marshall v Bradford MBC (2002) HLR 22 and Swindon BC v Aston [2003] HLR 42), the court would have no power to discharge or rescind the order as there had not been compliance.

That view would, I think, be wrong, since we all now know that s.85(4) as unamended did not require strict compliance (see Knowsley HT v White and other appeals [2008] UHKL 70) nor does it even have to be “substantial compliance” (per Lord Mance, in the minority in Knowsley) but the extent to which compliance is necessary is a matter for the judge in each case (per Lord Neuberger, Knowsley, [107]).

So – the extent to which the conditions have been complied with is a matter of “at large” discretion for the District Judge. Surely this will just provoke more litigation as to how that discretion should be exercised? Some DJs will require greater degrees of compliance than others – isn’t this just a recipe for confusion?

The amendments would have the advantage of clarity and of structuring the discretion of the DJ. Surely this has to be right?

It’s too late now for the Government to amend the commencement orders, but I do confess to some unease at this late decision to only bring parts of Sch. 11 into force. I know that we have quite a few readers at CLG – if you feel that I’m doing your position a disservice, please do get in touch. I don’t pretend that this is an easy matter, but I do fear that the Government has made matters more complicated than they need to be.

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