Archive for August, 2009

Kathirkmanathan revisited

Published
by
NL
on 30/08/2009
in ASB, FLW case note, Housing law - All and assured-tenancy
. 0 Comments

Circle 33 Housing Trust Limited v Kathirkmanathan [2009] EWCA Civ 921

We first reported on this case in July 2009, on the basis of a lawtel note, which was all that was available at the time. In this quiet time for new judgments, there are a few such cases for which full transcripts are now available, so we can fill in some details (and give the proper citation).

This was an appeal of a committal for breach of undertaking. The undertaking was following complaints of noise nuisance from Mr K’s downstairs neighbours. Mr K was Circle 33’s assured tenant and lived in the first floor flat with his wife, an adult cousin who is in or close to his twenties, and two children, 2 and 3 years old at the relevant time. The specific undertaking given to the County Court in September 2008 was as follows:

…not to, whether by himself or by instructing or encouraging any other person:-

1. Engage or threaten to engage in conduct capable of causing a nuisance or annoyance to [2 named ladies] to include (but not limited to) playing ball games and riding bicycles or scooters in 63 Peel Close.

2. create excessive noise, such that a reasonable person would consider it anti-social, inside 63 Peel Close between the hours of 9 pm to 7 am to include (but not limited to) running, jumping, talking loudly, slamming doors, dropping objects on the floor, playing ball games and riding bicycles in 63 Peel Close.

There were further incidents of noise -’constant running jumping and banging’ – and Circle 33 brought committal proceedings.

At the County Court, HHJ Mitchell found breaches of the undertaking and committed Mr K for 3 concurrent terms of 8 weeks. An appeal was immediately made and Mr K was released that evening. This was the expedited appeal hearing.

The appeal was on three grounds. The judge had misconstrued the terms of the undertaking; there was no evidence that Mr K was responsible for the nuisance; and that in any event the sentence was excessive.

On the first ground, the Circuit Judge had found on the terms of the undertaking as follows:

Now that is somewhat clumsily worded but in my judgment it makes it perfectly clear that, as the tenant for these premises, the Defendant is responsible for ensuring that he does not cause noise to his neighbours. Ms Rubens for the Defendant argued that to some extent if he is not — they have got to prove he is encouraging any person. Quite simply it should have said: ‘by himself, his servants or agents must not encourage or permit’ and that it seems to me would have covered it. It is rather clumsy wording but in my judgment it is still clearly aimed at not allowing or encouraging anti-social behaviour to take place and emanate from his flat. Ms Rubens submits there is nothing about failing to control his children. In my judgment the general wording is sufficient to cover the situation which we have here.

At the Court of Appeal, Ward LJ disagreed. The undertaking did not contain the words that would cover the situation:

The language, therefore, is not sufficient to do that which the judge assumed it would do: namely, to make the defendant responsible for ensuring that he does not cause noise to his neighbours. The language does not, as the judge thought, cover allowing antisocial behaviour to take place and emanate from his flat. “Allowing” does not appear in the undertaking, “permitting” does not appear in the undertaking, and the judge has therefore misdirected himself as to the effect of the undertaking and an appeal against his order should be allowed accordingly.

On this point Jacob LJ agreed strongly:

I agree. It cannot be emphasised enough that breach of an undertaking or of an injunction is a serious matter, possibly leading to imprisonment. One cannot go by some woolly spirit of intendment of the language of the undertaking or injunction by the precise language used. The judge did not do that here. Liberty of the subject is involved. The language should be read much as one would read a criminal statute, and it is not enough to say one does not like what went on. Those responsible for drafting injunctions or undertakings should take considerable care as to exactly what is involved, because if they do not then the document may either be meaningless and unenforceable or very simply restrict something which is inappropriate.

Appeal allowed on that basis. On the issue of lack of evidence against Mr K personally, the Court agreed. There was no evidence sufficient to identify the originator of the nuisance and some of the nuisance complained of was unlikely to have had Mr K as its source.

On the excessive sentence issue, if there had been a breach of undertaking, Ward LJ notes that there was evidence before the CJ that the behaviour had reduced and there were no recent complaints. Mr K had apologised and it was a first commital. In view of that and as:

The primary objects of a committal are of course in part to punish for the contempt, but also to use the sanction coercively so as to prevent a recurrence. In those circumstances it seems to me that the right sentence in any event would have been a suspended sentence, and I venture to think that in the first instance four weeks would have been ample to force future compliance with this undertaking.

The appeal suceeded on all grounds, but with the wording of the undertaking being key. Jacob LJ’s words are a clear reminder that for undertakings, where liberty is at stake, going by ‘what must have been intended’ by the undertaking is simply not enough.

Print This Post Print This Post

Changing Horses Midstream

Published
by
chief
on 30/08/2009
in FLW case note, Homeless and Housing law - All
. 0 Comments

Konodyba v Royal Borough of Kensington and Chelsea [2009] EWCA Civ 890 was an appeal against a decision that Dr Konodyba was not entitled to housing assistance as she was subject to immigration control. It turned out to be a cautionary tale about getting rid of your legal advisers at the last minute in order to argue the case a different way.

Dr Konodyba is from Poland, an A8 country. She seems to have worked briefly in a hotel. During this time her child started school. Dr Konodyba made a homelessness claim to Kensington and Chelsea, but this was turned down due to her immigration status. Dr Konodyba argued that she was entitled to reside in the UK as the primary carer of her child on the basis of Bambaust and Article 12 of Regulation 1612/68. Although HHJ Behar in the Wandsworth County Court decided against her, she was given permission to appeal by the Court of Appeal. In his leading judgment in this case Rix LJ quotes what he said when granting permission. In the context of what happened later this is worth repeating:

Although this is treated as a second appeal, it raises an important point on the interrelationship of Community and domestic legislation, and depends on the question of an implied derogation from a Community directive. HH Judge Behar, in his excellent judgment, described it as a “difficult area of the law”, and in another case HH Judge Knight QC came to a different view. I would give permission to appeal on the basis that it raises an important point of law and because there is a reasonable prospect of success for the reasons addressed in the applicant’s skeleton. Because this question must be likely to arise repeatedly, I consider that an element of expedition is suggested.

Clearly this does not suggest that the success of the appeal was a done deal, but it seems that there was not enough encouragement for Dr Konodyba there. At some point in the fortnight before the hearing she disinstructed her solicitors and counsel on the grounds that the submissions on Bambaust were made without her permission, were against her will and were entirely irrelevant. She wanted to argue a different case based on Article 7 of Directive 2004/38/EC. Not only was this not the case that permission to appeal was granted for, but it appeared to be based on a different factual basis. Rix LJ interpreted this as meaning that the present appeal was abandoned and should therefore be dismissed.

Wall and Aikens LLJ agreed.

Print This Post Print This Post

Webb v Wandsworth LBC – Take 2

Published
by
J
on 29/08/2009
in ASB, FLW case note, Housing law - All, Nuisance, Possession and secure-tenancy
. 0 Comments

We first noted Webb v LB Wandsworth [2008] EWCA Civ 1643 in November 2008 when it was discussed in an Arden Chambers eflash. Earlier this week, the transcript was finally released. Slightly later this week, it was corrected so as to make sense. Thus, 9 months after the decision, we can finally tell you what Sedley LJ was actually saying.

Ms Webb was (and, as far as I know, still is) the secure tenant of the London Borough of Wandsworth. One of her children had been engaging in serious anti-social behaviour in and around Ms Webb’s home. By the time of trial, he was no longer residing with Ms Webb although he was not living very far away and would return to visit Ms Webb. At the date of trial it appeared that there had not been any ASB for about a year. The high point of the case for the local authority was that the son had been arrested (but not convicted) on three occasions for breach of an ASBO.

It was common ground that Grounds 1 and 2 were made out, but Ms Webb contended that it was not reasonable to make an order. Wandsworth argued that it was reasonable to make an order, but that it should be postponed on terms.

The Circuit Judge made a PPO, with terms requiring inter alia, the son not to reside at the property and Ms Webb appealed to the Court of Appeal.

Ms Webb raised the following grounds of challenge:

(a) There was very little behaviour that Ms Webb was personally culpable for. Wilson LJ, giving the main judgment, accepted that this was a relevant factor but, following Bryant v Portsmouth CC [2000] 32 HLR 906, there was nothing objectionable in requiring Ms Webb to take responsibility for the behaviour of her household. In addition, following Manchester CC v Higgins [2006] HLR 261, the existence of the ASBO against the son indicated that it would be reasonable to make an order;

(b) Wandsworth had failed to follow their ASB policy, which, in broad terms, indicated the possession proceedings would be instituted only where other remedies had failed. On the facts, said the court, the policy had been followed. There had been many other attempts to resolve the ASB, including the acceptance by Ms Webb and her son of an Acceptable Behaviour Contract. In addition, his Lordship was not entirely satisfied that a tenant could raise a defence/reasonableness argument based on the terms of an ASB policy

(I break here to note that his Lordship is, with respect, wrong to have any such doubts. An ASB policy is something that a local housing authority / housing association must have, see s.218A Housing Act 1996. The Secretary of State is further empowered to issue guidance on the contents of the same, see s.218A(7). It is, as a matter of public law, not open to public body to simply ignore policies or Government guidance – R (Rixon) v LB Islington (1998)  1 CCLR 340 – indeed, they have “special importance where the behaviour of the tenant’s children is at the root of much of the trouble” – per Brooke LJ in Moat Housing Group v Hartless [2005] EWCA Civ 287, at [102])

(c) The Judge had used the possession order as a means of further sanctioning the son, since it was primarily him and his behaviour that was likely to result in any breach of the terms of postponement. This was entirely legitimate and, whilst the Judge would have been well advised to expressly consider the interests of the other children and the harm that would result to them if the son were to breach the terms of the postponement, this was an ex tempore judgment and the Judge had the relevant evidence before her during her judgment.

(d) The Judge had taken the allegations of breach of an ASBO into account. It was, Wilson LJ held, inappropriate to even consider unproven allegations. They were irrelevant to the question of reasonableness and, as the Judge had taken an irrelevant factor into account, the whole decision had to fall.

Sedley LJ, in a short concurring judgment, went slightly further as regards point (c). To his mind, there is a difference between a court (i) making a tenant responsible for persons who the tenant has a degree of control over and (ii) making a tenant responsible for persons over whom the tenant has no control. The latter is impermissible (Wilson LJ (albeit obliquely) appears to say something similar at [5]. I think you need to read [5] with [24] to understand what Sedley LJ is saying).

In addition, the court should have given express consideration to the Article 8 rights of the other inhabitants of the house before making a possession order. The case appeared to Sedley LJ to be one where it was appropriate to adjourn on terms.

Mummery LJ added nothing of substance but dealt with a minor procedural matter.

This isn’t quite as strong a judgment from Sedley LJ as I’d hoped, but it’s far from bad news. I do think that there is some difficulty in the idea that a tenant should always be responsible for the acts of their visitors/other residents. Why should one adult be responsible for the acts of another adult? In the criminal field, we’ve abandoned any such idea (R v Simon Kennedy [2007] UKHL 38). Surely the time has come to recognise that Bryant has to have some limits? I do think the position as regards liability for the acts of ones children is more complex, but, as regards adults, it seems to me that this might be the start of a (welcome) retreat from Bryant.

Print This Post Print This Post

HLPA Conference

Published
by
J
on 29/08/2009
in ASB, Allocation, Community care, Homeless, Housing law - All, Introductory and Demoted tenancies, Mortgage possession, Nuisance, Possession, Succession, Tolerated trespasser, assured-tenancy, right-to-buy and secure-tenancy
. 1 Comment

The Housing Law Practitioners Association (“HLPA”) host their annual conference on December 15, 2009 at the Royal College of Surgeons, London. Details have just been released (with more to follow later in September) and can be found at www.profbriefings.co.uk/hlc2009.

Highlights include:

(a) Richard Drabble QC giving the key note speech. Richard has had a very active year in the housing field having appeared in Manchester CC v Pinnock, R (Weaver) v L&Q, Hanoman v LB Southwark and Austin v LB Southwark;

(b) Jan Luba QC outlining the expected developments in housing law in 2010. Given that Jan’s work in Holmes-Moorhouse v LB Richmond, Austin v LB Southwark, R (Ahmed) v Newham, R (Aweys) v BCC / Moran v Manchester CC, his insight into the coming 12 months is not something you’d want to miss.

(c) HHJ Platt, DJ Sterlini and DJ Backhouse giving a perspective from the county court bench. If you wanted to know how the changes and developments of the last year are playing out at the ‘coal face’ then you couldn’t ask for three better informed commentators.

(d) Claer Lloyd-Jones of the TSA and their plans for the future regulation of housing law.

(e) Professor David Cowan (who we here at NL have a bit of a soft spot for) of Bristol University and Arden Chambers, whose work on Ground 8 might (we hope) eventually lead to its abolition or restriction.

Other friends of NL who are speaking include James Stark, Dawn McPherson, Jonathan Manning and Chris Johnson.

We can’t recomend the HLPA conference highly enough. The majority of your NL team will be in attendance. Do come and say hello.

Print This Post Print This Post

Taxonomic revamp

Published
by
NL
on 23/08/2009
in Various (non-housing)
. 0 Comments

As our archive has grown, I’ve tried a few ways to make it easier to find what people may be looking for. I brought in tags for posts, which should bring up other posts with similar issues (always assuming we’ve been consistent in the tags we use) and I’ve added a new search engine and advanced search page.

von LinneBut the old category list was pretty much unchanged from when the blog started. So, I’ve added a whole new set of housing law specific categories and rolled all the non-housing law posts into one ‘Various’ category. I’m about half way through the archives, moving the old posts into the new categories, which we will use from now on.

The new list is in the column to the right. Posts may well appear in more than one category, of course, but these struck me as the most useful ‘top level’ headings. Any suggestions welcome.

Each category also has its own RSS feed, for those of you who know about and use such things (and you really should – it means the info comes to you, rather than having to go and look). The RSS icon next to each category name is a link to the category specific feed.

I hope this will all be of use, particularly for those who know we reported on a case on a specific issue, but can’t find it in the last three years worth of posts, and I know there are a fair few of you – I get emails ;-)

Bonus points for anyone who gets the presence of the Swedish gentleman above without recourse to google…

[Edit 25/08/09 - the archives have all been transferred now and the category list should be pretty much complete. That was a time consuming exercise, but useful, as I've been amending tags and posts as I've gone through them.]

Print This Post Print This Post

On the Naughty Step

Published
by
NL
on 20/08/2009
in Various (non-housing)
. Closed

Our non-lawyer/law student readers, or even non-barrister readers, might have to forgive us for this for this Naughty Step, but it was too good to resist, particularly for those of us – i.e.  me – still newly qualified enough to harbour memories of their professional courses (LPC/BVC), and also familiar, from the other side, with the conduct of University exam committees.

And so, we welcome to the Step Cardiff Law School, who are here for their truly remarkably inappropriate behaviour in the face of a High Court order, as well as managing to ensure that they lost a judicial review of the conduct of their exam committees.

Clarke, R (on the application of) v Cardiff University [2009] EWHC 2148 (Admin) was a judicial review of Cardiff University Law School brought by a BVC student from 2004/5, Ms Clarke. The story went something like this…

Ms Clarke was taking the advanced criminal law option and the negotiation compulsory. Advanced criminal law was taught by Dr Wheeler and Ms Edwards. In November 2004, Ms Clarke was present when Dr Wheeler allegedly displayed racial prejudice against a Jewish student. A complaint was made by that student. At a later point, May 2005, Ms Clarke made a statement for the investigators of that complaint, supporting the complaint. We’ll come back to this.

In March 2005, the Defendant decided that there was suspicious conduct in an opinion writing assessment. The course leader, Andrew Jerram (remember him) decided that all students should be contacted to bring in their opinion writing textbooks in two days.

Ms Clarke did not receive the letter and voicemail apparently left on her mobile. She had a negotiation assessment on the relevant day. Shortly before her negotiation assessment, Mr Jerram and Ms Walsh – who was to conduct the assessment – apparently confronted her about her failure to bring in her textbook and demanded that she return home, get it and come back before taking the assessment – a 3 hour round trip. She was then allowed to take the assessment before going to collect the textbook.

About a month or so later, Ms Clarke submitted an extenuating circumstances form in respect of the negotiation assessment, saying that the encounter and demand from Mr Jerrarm and Ms Walsh had been upsetting and stressful, immediately prior to the assessment.

In June 2005, Ms Clarke took her advanced criminal assessment, then a few days later was told by Mr Jerram she had failed the negotiation assessment and given feedback. She then submitted a form highlighting the events before the assessment and saying the assessment had been incorrectly marked in addition. She retook the assessment at the end of June, got 62% but was awarded 50% as a retake.

On the same day the Defendant’s ‘extenuating circumstances committee’ considered and rejected her application. On the committee were Mr Jerram and Ms Walsh, who apparently gave their account of the events and rejected Ms Clarke’s account.

The assessment marks were then considered by the exam board, chaired by, well, Mr Jerram. As well as negotiation, the committee considered Ms Clarke’s advanced criminal law assessement, as marked by Dr Wheeler – he of the complaint under investigation – and moderated by Ms Walsh, whom we have already met. The criminal assessment was awarded a fail, in the 40% range. The exam board confirmed the fail and the negotiation fail/retake grade.

Still hanging on? Good. At this point, after being told of the grades, Ms Clarke mounted a challenge. The re-convened exam board (at which Mr Jerram and Ms Walsh were present, but this time both declared an interest and did not speak) confirmed the grades. Cue Ms Clarke’s application for judicial review, seeking quashing orders of the extenuating circumstances and exam board decisions…

At an early stage, proceedings were adjourned on terms that the videos of the advanced criminal assessment would be sent to an unconnected external examiner, together with a sample of others, for assessment and the full marked assessments of other candidates. After some extensive to-ing and fro-ing over a suitable examiner for months, the court gave further directions, appointing an examiner – a Ms Sutton – and ordering:

that until that exercise is completed and the result has been communicated to the claimant and the defendant neither Eversheds [their solicitors] nor any servant or agent of the defendants shall or shall seek to make any contact with Ms Sutton.

That seems clear, doesn’t it? A fairly unequivocal direction. A further direction said that any question Ms Sutton had should be put in writing and a response agreed by Claimant and Defendant before being sent to Ms Sutton by Professor Osmand, who was the contact for the Defendant.

Ms Sutton was duly provided with the materials. Ms Sutton duly assessed Ms Clarke and awarded 71%. Ms Sutton duly communicated this to Professor Osmand. At this point, the grade should have been communicated to Ms Clarke as per the order, one would have thought. But no. Instead, Prof Osmand in a series of emails, questioned Ms Sutton’s award and the basis on which she had made it. Ms Sutton agreed to lower the grade to 65% as a result. Ms Clarke was not, of course, made aware of any of this. She had asked about what was going on, but the Defendant’s solicitors had, well, not actually told her in their responses.

In fact, she wasn’t told of the grade until after a ‘reconvened exam board’, at which Mr Jerrard and Ms Walsh had the grace to actually withdraw. The exam board decided that it couldn’t actually decide what grade to award, so the first fail grade stood and Ms Clarke had failed the BVC.

Ms Clarke was given permission to amend her JR claim and did so. The Defendant, clearly firm in its view that it was right, had the advanced criminal law assessment marked yet again for consideration by the Awards and Progress Committee – being a superior committee to the exam board. The new external gave a bare pass grade. This was duly adopted by the Awards committee, who then declared that Ms Clarke had passed the BVC after all, with a competent. Therefore, they told Ms Clarke, the JR should be withdrawn.

Unfortunately for Cardiff, Ms Clarke didn’t withdraw. There was still the issue of the negotiation assessment. At hearing Wyn Williams J accepted that the ‘failure and retake’ of the negotiation assessment would remain on Ms Clarke’s record and have a deleterious effect, even if the overall BVC grade would not be affected.

On the ‘Extenuating Circumstances Committee’ decision, held:

It does not seem to me that it was fair for Mr Jerram and Ms Walsh to participate fully in the decision-making process when they were also providing information to the decision-makers which, inevitably, had the effect of casting doubt upon the Claimant’s credibility. I have no doubt that the views of Mr Jerram and Ms Walsh were capable of being very influential in this particular decision. In those circumstances it does not seem to me to have been fair that they should have participated in reaching the actual decision.

On the Exam Board decision, held:

the Claimant was not treated fairly at the hearing of the Re-Convened Examination Board on 27 September 2005. Mr. Jerram and Ms Walsh were present throughout and it is to be inferred, reasonably in my judgment, that they repeated their version of the facts. I say that since their presence throughout the hearing was justified on the basis that they could provide information about the facts. If they had been providing information to persons otherwise unconnected with the first decision that may have been justifiable. In fact they were not. The Re-Convened Examination Board contained at least two persons (three if Ms Bedford is included) apart from Mr Jerram and Ms Walsh who had sat on the Extenuating Circumstances Committee.

Further:

Neither at the Extenuating Circumstances Committee nor at the Re-Convened Examination Board did the members receive any views from the Claimant about the facts as told to the Committee/Board by Mr. Jerram and Ms Walsh. It does seem to me to be capable of being viewed as unfair that an oral explanation of the relevant facts was given (which was adverse to the Claimant) but she was given no opportunity for specific comment either in writing or orally.

Both decisions accordingly quashed.

Now trust me, it is not unusual to see a bunch of lecturers make a bad decision, then fanny about trying to resolve the resulting mess, or at least make it go away. It is also not unusual to see lecturers convinced that they could not be capable of a less than wholly objective view and so finding no improperness or conflict of interest in sitting in judgment over their own actions. But it is something I would expect of a bunch of – oh I don’t know – let’s say Art Historians.

It is bit more of a surprise in BVC tutors, who might be expected to have a grasp on the relevant broader principles. And then it is – what is le mot juste? – jawdropping to see a High Court order so blithely ignored in an attempt to squirm out of a difficult situation.

For that reason, the Cardiff University BVC sits on the Naughty Step. Bravo/brava to all concerned.

Update: the Times belatedly has the story, complete with interview with Ms Clarke, who, in a housing law related twist, apparently intends to “find work representing people whose homes have been repossessed”. Good luck to her.

Print This Post Print This Post

Contracting out homelessness reviews like the town hall catering contract

Published
by
Dave
on 20/08/2009
in FLW case note, Homeless and Housing law - All
. 8 Comments

The Court of Appeal’s judgment in Heald and others v LB Brent [2009] EWCA Civ 930 is just out concerning the outsourcing of s 202 Housing Act 1996 reviews by Brent to Minos Perdios’ company Housing Reviews Ltd.  There have been a number of County Court judgments on this issue which have not necessarily been ad idem (see eg our post on Augustin v Barnet).  The argument against contracting out has been twofold: first, councils have no power to contract out their reviews function under Part VII (and, by extension although not relevant in this case, Part VI) because it is not a “function” of the local authority within s 70, Deregulation and Contracting Out Act and the Contracting Out Regs made under it (Local Authorities (Contracting out of Allocation of Housing and Homelessness Functions) Order 1996, SI 1996/3205); second, there is the appearance of bias on the part of Minos Perdios which gives rise to an Article 6 infringement.

The Court of Appeal dismissed both arguments.  The main judgment by Stanley Burnton LJ was given in robust terms and without regret (at [61]).  Sir Simon Tuckey simply agreed.   Sedley LJ agreed but gave a wonderful lament for the impoverishment of administrative justice  (and which I make no apologies for quoting in full below).

On the first argument, though, Stanley Burnton LJ seems to have treated the matter as pretty obvious (at [44]).  He is able to do so through citing the well-known definition of functions given by Lord Templeman in Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1, 29:  a function “… embraces all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions.”  This definition is always trotted out as if it’s generic, but Lord Templeman was dealing with its use in a specific context, viz the legality of swap transactions in relation to (if I remember rightly) s 110, LGA 1972.  It’s now taken as gospel, but really must be sorted out.  Anyway, once you accept that definition applies, the argument pretty much folds.  It must follow that a review is a function for the purposes of s 70 capable of being contracted out, and it is significant that the review function is not expressly excluded by the SI (as other functions are).

How to deal with Runa Begum though?  In Runa Begum v Tower Hamlets [2003] 2 AC 430, Lords Bingham and Millett had made pretty scathing comments on the lawfulness of contracting out the review function – Lord Bingham (at [10]) had “very considerable doubts” whether it was a function; and Lord Millett agreeing pointed out that the SI was “concerned in very general terms with deregulation and the subcontracting of ordinary local authority functions” and was not apt to confer that power.  Lord Hoffmann doubted its efficacy and practicality, as opposed to the lawfulness.  Although not pointed out in Heald, it is notable that Hazell was not cited in Runa Begum.  Stanley Burnton LJ brushed the Runa Begum comments aside (at [50]) on the basis that the SI “… is indeed clear and permits contracting out of reviews”.

On the second argument, Stanley Burnton LJ started from the Runa Begum position that the a local authority employee does not infringe Article 6 when conducting a review  and

“I do not see that a third party should necessarily be any less impartial than an employee.  Whether he can be regarded as less independent may depend on the particular facts, and in particular the terms of the contract between the authority and the third party. It is possible to build into a contract a high degree of independence on the part of the third party, for example by prescribing a long contractual term that is terminable only for serious breach. To do so would, however, bring into play another of the Appellants’ objections to contracting out, namely that the third party is not democratically accountable.” (at 52])

Given that the decision on review, although made by Minos Perdios, was accepted by the council as its own (as indeed it would have to – see s 72, 1994 Act), the democratic accountability argument wasn’t a runner.   That conclusion about contracting out was fortified ( at [54]) by reg 2 of the Allocation of Housing and Homelessness (Review Procedures) Regulations 1999, SI 1999/71, which appears to accept that an external person may make a review decision.

There then follows an examination of the Minos Perdios contract with Brent together with his website.  As opposed to the “high degree of independence” considered in [52], it was noted that the contract has no real security of tenure.  But that didn’t matter because (a) the fact that he acts for a significant number of local authorities “confers a certain independence in relation to each of them”; and (b) local authorities do not necessarily have security of tenure if their “work is not to the liking of [their] superiors or political masters” (at [56]).

Drawing on the test of apparent bias in Porter v Magill [2002] 2 AC 357 (one of my all-time favourites, I’ve got to admit), he found that the Minos Perdios website did not convey that real danger of bias to an objective and well-informed observer (at [57]).  Equally, the sheer number of reviews done by Minos Perdios does not suggest that he doesn’t consider each one.  It was misleading that he signed his review letters on Brent notepaper as “Minos Perdios Reviews Manager” but that false impression was immaterial.

Ms Heald was successful on one point about which we have commented before on this site – the HHJ who heard her appeal simply said that he preferred the arguments for Brent without reasons.  That was clearly insufficient (but does seem to happen nevertheless) but immaterial as the CA had reviewed all the evidence before him (at [60]).

Whilst Stanley Burnton LJ dismissed the appeal without regret, Sedley LJ, in a short reflective judgment, offered the following analysis on the first issue:

64 Local government has long since been divested of most of its adjudicative powers. The modern forum for the exercise of such powers is an independent tribunal. But by virtue of primary legislation important decisions which can make the difference between a home and the street for thousands of people every year have been consciously placed and kept within the administrative framework of local government, with recourse to the courts on process only and not on merits.

65 It is into this framework that the power to contract out has been introduced. Certain functions are exempted from the power, but the review of homelessness decisions is not one of them. One understands very well why members of the Appellate Committee [in Runa Begum] were dubious, even so, about the contracting out of an adjudicative function as if it were the town hall catering contract. But the fact is that it is difficult to envisage a process less compatible with Article 6 than the in-house review by one official of another official’s decision on an issue on which the local authority, through both of them, sits as judge in its own cause. Starting from such a low base, delegation of the review function to a competent outsider on the kind of terms we have seen in this case, whatever its weaknesses, probably offers more in the way of independence and impartiality than the in-house system.

This lament for local authority adjudications as if they are the town hall catering contract will live with me for a good while.

Print This Post Print This Post

Here be dragons

Published
by
NL
on 18/08/2009
in ASB, FLW case note, Housing law - All and Nuisance
. 0 Comments

EPA 1990 prosecutions and the Magistrates Court. I am assured that stout housing lawyers quail at the prospect. And why? Well this High Court appeal by way of case stated, although not strictly housing related, serves as a illustration.

magsWandsworth v Rashid [2009] EWHC 1844 (Admin) concerned bags of waste left on the street by a branch of JD Sports (or was it…?)

The information laid in January 2008 stated:

On 30th July 2007, being the manager of JD Sports of 2-4 St Johns Road, SW11 and the producer of controlled waste, you failed in your duty to take all such measure applicable to you in that capacity as are reasonable in the circumstances to prevent the escape of waste from your control or that of any other person contrary to Section 34(1)(b) of the Environmental Protection Act 1990 in that your trade waste, namely a pile of about 12 refuse sacks was found on the highway St Johns Hill SW11 at the junction with St Johns Road and an offence has thereby been committed CONTRARY to Section 34(6) Environmental Protection Act 1990.

What was the problem with this prosecution? For it was thrown out by the Magistrates, with a finding that Wandsworth had abused the process?

Firstly, Wandsworth had sought, at hearing, a small amendment. To wit:

the word “and” after “SW11″ should be deleted and the following words “a producer of controlled waste” should be placed in brackets.

The effect of such amendment being simply to make clear that JD Sports, not Mr Rashid was the producer of controlled waste.

The Magistrates were having none of it. They refused the amendment.

In his lead judgment, Pill LJ was baffled by this:

This appears to me to be a clear case where the amendment should have been permitted under section 124 of the Magistrates’ Court Act 1980. It had the merest technical effect and I do not accept or, with respect, understand the reasoning of the magistrates which led to their decision. It was sought only to make clear that it was JD Sports and not Mr Rashid who were the producers of controlled waste. [para 13]

As to the remaining issues raised, Mr Rashid had contended that a prosecution was an abuse of process because Wandsworth had not chosen or considered whether to ‘educate’ rather than prosecute as set out as an option on a first offence in its published waste management policy. The Magistrates had agreed.

However, Pill LJ noted that the example ‘case studies’ of possible responses by the Council in the policy, as relied on by Mr Rashid, were preceded by the statement that

However, the full facts may justify a different approach even in cases that sound similar.

On precedent case law, abuse of process in the Magistrates “should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures.” R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42.

The pleaded case of R v Mondelly v Commissioner of Police for the Metropolis [2006] EWHC 2370 (Admin) apparently concerned a prosecution in clear breach of an established and stated policy on trading standards cases, but actually addressed the lawfulness of a caution which would prevent proceedings in a court, rather than the power of a court to terminate as an abuse of process a prosecution. So it was not a precedent for the Magistrates finding of an abuse of process in this case.

Held:
The Magistrates were wrong in taking into account late submissions of mitigating factors in relation to the offence itself.

The Magistrates expressed a test on whether it was reasonable for the Borough to take action wrongly: “a finding that it would have been reasonable for the Borough, in line with the policy, to take another course of action, does not necessarily lead to a conclusion that the course of action they took amounted to an abuse of process.” [para 33].

Thirdly, the Magistrates were wrong on the courses of action the Borough were required to take before bringing a prosecution: “The prosecution were not required to go through each other possible course of action seriatim in order to justify a decision that the course of action they took was a lawful course of action.” [para 34]

Cranston LJ agreed.

Mr Rashid did not attend and was not represented. JD Sports neither supported Mr Rashid nor attended/made submissions.

Matter, after extended discussion, remitted to the Magistrates, but it looks unlikely to be pursued.

I make no further comment, save to observe that for the Mags to a) refuse a small amendment the effect of which, in their own words “would not be germane to the outcome of the case”, and b) find an abuse of process where the Council had simply taken the tougher option available under its own policy, would be a clear example of why so many civil lawyers quail at arguing points of law or indeed a private prosecution tout court in that venue. EPAs – who knows what the hell is going to happen? And with an individual client, on a CFA at that…

Print This Post Print This Post

Statutory Instruments to read by the pool

Published
by
J
on 17/08/2009
in Housing law - All and Leasehold and shared ownership
. 0 Comments

Apparently Dan Brown (he of “The Da Vinci Code” nonsense) is bringing out a new book shortly. I can’t imagine why anyone would want to read it. Especially given that there are (just this week!) three relevant statutory instruments to consider. Ideal poolside reading if I ever saw it.

The first two are the Housing (Shared Ownership Leases) (Exclusion from Leasehold Reform Act 1967) (England) Regulations 2009 and the Housing (Right to Enfranchise) (Designated Protected Areas) (England) Order 2009.

These two have to be considered together as they relate to enfranchisement and shared ownership leases. I’d suggest having a copy of the Leasehold Reform Act 1967 (in its original form – and with all the amendments) to hand just to add to your reading pleasure. The advantage of having all that paper to hand is that you’ll be able to use it to keep the sun off you afterwards.

Shared ownership leases – as we all know – usually provide for the tenant to acquire an initial interest in the property and then to purchase the remainder over a period of time.

Of course, it may be possible for someone to be a “shared ownership” tenant and, at the same time, be entitled to exercise a right to enfranchise under the Leasehold Reform Act 1967. That could mean that they can acquire the freehold of their house at – potentially – a much lower price.

Paragraph 3A of Schedule 4A of the 1967 Act was recently inserted by s.301 Housing and Regeneration Act 2008 so as exclude certain shared ownership leases granted by any landlord in certain prescribed conditions. The 2009 Regulations set out those conditions.

Paragraph 4A of Schedule 4A of the 1967 Act was likewise inserted by s.302, 2008 Act. It provides that certain areas of England and Wales may be treated as “protected areas” where houses (or types of houses) can be offered for sale on shared ownership leases and the enfranchisement provisions of the 1967 Act. The 2009 Order gives the (lengthy) list of areas where the right to enfranchise is now excluded in respect of shared ownership leases.

It is important to remember that these provisions apply only to the 1967 Act and NOT to enfranchisement under the Leasehold Reform, Housing and Urban Development Act 1993. This means – in broad terms – that the exclusions relate to shared ownership leases for houses and not for flats.

Finally there is the Housing and Regeneration Act 2008 (Commencement No. 6 and Transitional and Savings Provisions) Order 2009. The effect of this is, as of September 7, 2009:

(a) s.114, 2008 Act is in force. This permits the Secretary of State to inter alia, make local housing authorities, county councils, TMOs and ALMOs eligible for registration with (and supervision by) the TSA. This does not mean that the Secretary of State will exercise this power (since there is still a consultation on the same open), merely that he may do so in the future;

(b) s.300, 2008 Act is in force, which repeals s.1(1)(a) 1967 Act (see above). This provided that only houses at a low rent were capable of being enfranchised under the 1967 Act (see above). Over the years that provision had gradually been relaxed and is now killed off in the interests of legal certainty;

(c) ss.301 and 302, 2008 Act are in force. They’re discussed above;

(d) s.316, 2008 Act is in force, which will extend the range of bodies able to provide finance in connection with the Right to Buy;

(e) various “tidying up” repeals and revocations will also be commenced.

Print This Post Print This Post

Bits from August LAG 2: Unlawful Eviction damages

Published
by
NL
on 13/08/2009
in Assured Shorthold tenancy, FLW case note, Housing law - All and Unlawful eviction and harassment
. 0 Comments

The August edition LAG housing updates also contain a couple of County Court unlawful eviction and harassment cases that are well worth noting, particularly on quantum.

Abbas v Iqbal, Bow County Court 4 June 2009. Mr Abbas, who was elderly and in poor health, was granted a weekly periodic AST of a single room with shared kitchen and bathroom. The rent was £60 pw. In November 2007, the landlord – Mr Iqbal – told Mr Abbas he would have to leave as the property was to be converted into flats. In April 2008 a written notice was served, to leave within two weeks. The notice was defective and invalid. Mr A remained in occupation. In late May 2008, Mr I instructed contractors to begin work. On 30 May, the gas supply to the building was disconnected. On 31 May the water was disconnected. No warning was given in either instance. On 9 June, Mr A obtained an injunction ordering reinstatement of gas and water. Mr I failed to comply and works continued. The building was shortly made uninhabitable. Mr A had to spend some nights sleeping in friends’ business premises before the local authority provided temporary accommodation. He returned to the property in mid June 2008 to find all his furniture and belongings had been removed and disposed of.

Mr A claimed for unlawful eviction, harassment and, apparently, nuisance and disrepair (not mentioned in the LAG report, but apparent from the damages).

At trial damages of £39,194 were awarded:
£150 per day for the 13 days of building works and lack of utilities
£250 per day for 3 days sleeping in business premises
£1,000 for having to vacate before the tenancy had been terminated
£10,000 aggravated damages
£7,500 exemplary damages
£2,000 per year for 6 years cockroach and rodent infestation
£500 for a toilet defective for 6 months
£5,494 special damages (described by the court as almost certainly an undervalue).

If anyone from Mr Abbas’ team is reading , I would be interested to hear how the exemplary damages were arrived at. Oh and what was wrong with the toilet?

The second case is Jarvis v Sherif, Central London Civil Justice Centre, 28 May 2009. Mr and Mrs Jarvis had a 12 month AST. Disrepair made conditions ‘extremely uncomfortable’. In August 2008, with no repairs done despite many requests, they withheld rent until repairs were done. [Note to any tenants reading - do NOT do this]. The landlord decided repairs would be too expensive and sent a letter threatening to change the locks. Two days later, on 17 October 2008, the Jarvises were unlawfully evicted. Mr J suffered great distress. he had a mental illness and was deprived of medication. They managed to retrieve only some of their belongings in December 2008. The flat had been re-let in the interim. They had to stay with a parent, in difficult conditions, until January 2009 when they secured alternative accommodation.

At trial:
General damages (including aggravated damages) of £2,500 to Mr J and £2,000 to Mrs J.
Exemplary damages of £3,000
Special damages of £2,200.

Again, if any of the Jarvis’ team are reading this, how were the exemplary damages arrived at?

(Let’s just say calculation of exemplary damages is a current obsession of mine – please gratify it)

Print This Post Print This Post