Archive for September, 2009

Not so much guidance, more of an exhortation

Published
by
NL
on 29/09/2009
in Housing law - All and Mortgage possession
. 6 Comments

Back in our post on the 50th update to the CPR, we noted that there was a new requirement from 1 October 2009 for the Claimant in mortgage possession proceedings to notify occupiers of proceedings within 5 days of receiving notification of the date of hearing and, interestingly, to notify the local authority’s housing department under CPR 55. We wondered at the time what local authorities would actually do with these notifications.

And now Housing Minister John Healey has told them and us what they must do. Well, not so much must do as should do. Or perhaps ought to maybe think about doing, at least if they like the idea. Healey’s press release makes it sound good:

Mr Healey has also written today to all council leaders saying that when councils hear from lenders taking repossession action against local people this should prompt them to offer practical advice or support for residents struggling to keep their homes.

This could include directing them to free debt and legal advice, helping them apply for benefits such as Support for Mortgage Interest or, for the most vulnerable households, assessing them for the Mortgage Rescue Scheme.

But you will note that this is a letter from Mr Healey, not a code of guidance or anything that local authorities might actually be required to follow.

In short, we still don’t know what local authorities will do with the notifications and whether it makes any practical difference at all is entirely at the whim of the doubtless cash strapped housing departments and the authorities themselves.

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Accommodation pending review: Mohammed in action

Published
by
NL
on 22/09/2009
in FLW case note, Homeless and Housing law - All
. 11 Comments

R (Gebremarium) v City of Westminster [2009] EWHC 2254 (Admin)

Thanks to the Garden Court housing bulletin for pointing to this one. We had to look around as the judgment is not yet available anywhere except casetrack.

This was the permission hearing of an application for judicial review of a decision by Westminster not to exercise its discretion to accommodate Ms Gebremarium pending a review of its decision to refer Ms G to Cardiff under the local connection provisions.

Ms G is Eritrean. She had been accommodated in Cardiff by NASS following an asylum application. After her asylum application was successful, NASS ended accommodation and she subsequently lived in two private tenancies in Cardiff between October 2007 and May 2009. In May 2009, Ms G’s four daughters, aged 4 -16, were granted visas and joined her. Ms G and family came to Westminster within a week and applied as homeless. She had only a one bed flat in Cardiff and said that she wanted her children not to be isolated – they had come for church and community. Westminster accommodated pending decision. On the s.184, Westminster found Ms G homeless, eligible, in priority need and non-intentionally homeless. However she had no local connection with Westminster, but did have a local connection to Cardiff. Westminster referred to Cardiff who accepted a duty. Westinster sent a s.198 letter notifying Ms G.

Ms G requested a review of the decision and requested that Westminster exercise its discretion to accommodate pending review under s.200(5) Housing Act 1996, which is directly comparable with s.188(3) Housing Act 1996, the discretion to accommodate pending s.202 review of a s.184 decision.

Ms G submitted that she did not want to return to Cardiff because she felt lonely and isolated there, had suffered from depression, and all her family and friends lived in London. Moreover, her children were Christian Orthodox and could only attend the Eritrean Orthodox church in Southwark. They would not be able to attend church in Cardiff. The children were registered to start school in Westminster in September.

Westminster responded on 7 August. The letter used the decision in R (Mohammed) v Camden LBC [1997] 30 HLR 315 for its structure, Mohammed being the case that set the principles for the exercise of this discretion. Westminster said they were satisfied that Ms G had establshed a residence connection in Cardiff, by choice. There were Pentecostal churches in Cardiff attended by Eritreans. Any disruption to schooling would be brief and Ms G would not be isolated as she had her daughters with her now. Under a heading of ‘new information, material and argument’, Westminster said they were aware of none. Under ‘personal circumstances’, Westminster said it had considered personal circumstances. Ms G was not homeless, technically, as Cardiff had accepted duty. Westminster declined to exercise its discretion to provide interim accommodation.

After a pre-action letter on 7 August, Ms G sent a further letter on 10 August, making further representations on receipt of the housing file. Westminster had failed to make enquiries about church or community connections amounting to special circumstances. No enquires had been made about any reason for Ms G’s unhappiness in Cardiff. Further, the Council had failed to understand that Orthodox worshippers could not attend Pentecostal churches. Ms G then issued the JR.

At the initial consideration, Dobbs J adjourned for a week, ordering that Westminster serve a decision regarding the children’s place of worship in a couple of days. Westminster wrote to Ms G on 13 August, saying that special circumstances had been considered before the referral to Cardiff, but that isolation was not a special circumstance given the period Ms G had lived in Cardiff of her own accord. On the children’s church, Westminster has established that the children could attend any Orthodox church and that there was a Greek Orthodox church in Cardiff attended by people from 20 countries. In addition, a church in Southwark did not establish local connection to Westminster.

Ms G responded that a church conducting services in Tigrinya, the childrens’ native tongue, was needed.

At the hearing, Ms G argued that:
1. The Council had not addressed its mind to the discretion it had under s.200(5). it had failed to address its mind to the existence of a discretion not to refer to Cardiff. There had been a lack of serious enquiries before the referral, as the letter of 10 August showed. The Council could well have concluded there were far superior support networks in its area.
2. The letter of 10 August raised significant new arguments and the Council’s earlier contentions on church attendance were clearly wrong. The services in the Southwark church were in the children’s language, while there were no Eritrean Orthodox churches in Cardiff. The Council failed to consider that the children would not pick up sufficient english during the review period.
3. The Council’s decision was flawed. it placed an undue emphasis on the presence of a Greek Orthodox church in Cardiff.
4. On personal circumstances, Ms G would be street homeless if not provided with interim accommodation. The Council had misdirected itself in law by saying Cardiff had accepted a duty so that she was technically not homeless. This ignored the s.200(5) discretion, which could be exercised where the notified authority had accepted a duty.

Held by Cranston J:
The Council had considered the Mohammed factors and its letter set out the findings in relation to each of the three factors. That was enough to dispose of the application, by binding precedent. The Court will only intervene in an exceptional case, R v Brighton and Hove Council, ex parte Nacion [1991] 31 HLR 1095 (Lord Woolf).

The only special circumstances advanced related to the church in Southwark. The Council had uncovered an alternative in Cardiff and considered the language point, which would lessen over time. But in any event the need to attend a church in Southwark could not give a local connection to Westminster.

The issue of what weight to give a factor was for the Council. It could not be said that it had given ‘too much’ weight to accommodation being available for Ms G in Cardiff.

There were no exceptional circumstances in this case, such as a need to obtain medical treatment only available in the area. This is the type of exceptional factor which would have resulted in finding the Council’s decision flawed. This decision was not flawed in public law terms, permission refused.

Now, I have a certain sympathy with the view that in deciding whether to accommodate pending review of a referral decision, the fact that the notified authority will accept a duty should perhaps not play too great a part, for basic reasons of circularity/pre-judging the review – after all if one had to actually be facing street homelessness, no s.200(5) discretion decision would ever be successful. But it is hard to see that this was actually a major factor here, where it looks like the comparison was more generally issues arising from accommodation in Westminster v accommodation in Cardiff.

That aside, this decision does show the high hurdle of challenging the exercise of discretion where the authority has at least considered the Mohammed criterea.

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Welcome to the High Court …

Published
by
Dave
on 22/09/2009
in Allocation and FLW case note
. 1 Comment

Welcome, Kenneth Parker QC, to the High Court.  In a case which has more of the surreal about it, Kenneth Parker QC, sitting then as a Deputy Judge, had to decide whether to grant leave to a litigant in person to challenge Octavia Housing and Care’s allocations policy as it applied to that particular litigant in person (who did not challenge the lawfulness of Octavia’s lettings policy [and by extension, Locata, the West London sub-regional CBL scheme to which Octavia Hill subscribes]): R(Fidelis-Auma) v Octavia Housing and Care [2009] EWHC 2263 (Admin). Ms Fidelis-Auma wanted to transfer to one of three other flats in the same block as she was currently occupying. She applied for a transfer in those terms and, to cut a short story shorter, on the basis of medical priority and nuisance/ASB. She was placed in the lowest band for a transfer. One of the three properties did become available and was advertised through Locata. Ms Fidelis-Auma did not bid for it. It was let to somebody in the top band. This was the decision that Ms Fidelis-Auma sought to challenge. In essence, it seems that her claim was that she should have been allocated the property through a direct offer (although such offers did not apply to her).

So, scroll back: there was no challenge to the lawfulness of the scheme; Ms Fidelis-Auma had been given information about the scheme and had not bid for that flat; the relevant flat had been offered in accordance with the scheme; the new occupier had an assured tenancy of the flat with security of tenure. In sum, this was a claim that was bound to fail and was, as the Deputy Judge put it, “academic” in any event. The only interest lies in the following (oddly incorrect) comment of the Deputy Judge (who, bearing in mind his academic public law credentials, perhaps should have known better): “… in my judgment this is a case in which Octavia is not acting as a functional public authority when considering transfer applications from its own tenants. Therefore this case lacks a public law element sufficient to make the decision amenable to judicial review.” It is true that Ms Fidelia-Auma had joined the new occupant of the flat as second Defendant, but has the Deputy Judge not heard of Weaver (links to our note for the Deputy Judge’s use)?  Or am I going mad(-der) myself (always more than a possibility)?

Costs for Octavia, and Ms Fidelia-Auma was that close to getting a limited civil restraint order against her.

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The lost, confused and angry*

Published
by
NL
on 21/09/2009
in Various (non-housing)
. 6 Comments

* as one of our commentors put it.

As the sumer hiatus grinds on (summer- ha!) and we sit on the beach awaiting the return of the intermittent flood tides of housing cases, I was prompted by M’s comment to delve through the rock pools of our search logs for September. And for what is but half a month, we have a fair proportion of the lost, confused and angry washing up on the shores of this blog, like nothing so much as oil soaked puffins or in a couple of cases, irradiated crabs.

We’ll start with those at least vaguely or apparently property law related…

is roadside waste public highway
My dear chap (or otherwise), you appear to have lost a preposition. You probably dropped it in amongst your fly tipping.

is my home legally overcrowded?
The internet is a wonderful thing. It not only gives you access to a world full of information, disinformation and nonsense at the click of a mouse, it also knows automatically how many people of what sexes and ages there are in your home, how many rooms you have and how big the rooms are. It can probably have a good guess if you have gas fires as the only heating in your living room as well. Did you not have your webcam turned on? That may be why it didn’t work.

how to buy a house on housing benefit
While the rest of the country is sick to the back teeth with news items about people not being able to get a mortgage without a 50% deposit and a first born to sacrifice (unless they are conveyancers, in which case they are suicidal), this is a person happy in their own world of sunlight, fluffy clouds and free property from the government (but only bankers get that). Either that or they have badly misunderstood Alistair Darling’s message of state funding to kick start the economy.

possession proceedings against preganant women
Sorry to disabuse you, but there is no pre-partum defence.

contesting consent orders
How can I put this – you agreed to it. You can’t un-agree.

eviction notice no win no fee london
I feel the need to gently explain how ‘no win no fee’ works. We want to get paid. Our only chance of getting paid is if it is the kind of case where a costs order will be made against the other side (or a settlement with costs reached). It is very, very, very unlikely that where someone has a possession order against you, and they have now obtained a warrant of possession from the court for an eviction, there will eventually be a costs award made against them. The very best you could hope for is no order as to costs (each side pays their own) and that is of no use at all for a ‘no win no fee’ agreement. So, no. (But, being a lawyer and having the soul of a pedant, I must qualify – If the possession is for rent arrears and you have significant disrepair, then maybe. Not promising anything, mind you.)

strict liability for landlords if bedbugs are found
And we are back to the land of sunshine and fluffy clouds. In short – no. In fact very difficult to establish any liability at all. (I have been correctly corrected – where a flat is let fully furnished, the bed bugs are there from the very start of the tenancy, and the tenant has a fair shot at showing they didn’t bring them with them, the tenancy agreement could be rescindable, or damages in lieu of recission. Otherwise, what I said stands).

unprotecting tenant deposit early
Doh! No.

unaware deposit protection scheme
Doh! You should have been.

But this was just the beach. Caught in a rip-tide and away from the coasts of property law we find stranger creatures yet…

white shiny shorts
Like Wham! fetishists

naughty courses for attitude in the nhs trust south wales
Now this does sound like something that should exist. Possibly run by Terry Thomas…

it is ethical for student to engage with the services provided by “ghostwriter” because
I am not surprised this person ground to a halt at that point. It isn’t, you dimwit. It just isn’t. And it is no good searching for someone else to provide you with a rationalisation for your own lazy cheating.

what could the refuge children carry
There was a similar question about the legal weight a child could carry. I am worried that NL has been discovered by child slavers…

Pah, enough of the seaside. I’ve got sand in my shorts and the puffins have got oil on my towel. Anyone for a 99?

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Request for info: Powell v Hounslow

Published
by
NL
on 18/09/2009
in Housing law - All, Licences and occupiers and Possession
. 9 Comments

We have just heard about a case, Powell v Hounslow, which is apparently due to be heard by the Court of Appeal on 15 November. According to our informant, the issue is whether an Art 8 defence can be made by a non-secure tenant in possession proceedings.

We know nothing more, but would very much like to. If anyone involved reads this, could you pass on some details or better yet, a transcript of the first instance hearing and of the issues in the appeal? The usual email address, contact (at) nearlylegal.co.uk, ta.

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Allocations: Risk v Need

Published
by
Dave
on 18/09/2009
in Allocation and FLW case note
. 4 Comments

In R(M) v Hackney LBC [2009] EWHC 2255 (Admin), Cranston J was faced with a difficult case which “… raises the issue of reconciling individual rights with the rights of the community”. The rights concerned were the Claimant’s rights to an allocation of a property which was suitable for him, but unlikely to be so for the community. Rather more mundanely, it demonstrates the difficulty of challenging a local authority decision to regard an applicant as ineligible when the applicant has “… been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the authority” under section 160A(7)-(8).

The evidence was that the Claimant was a “grooming paedophile” who, although 84 years old with a significant disability and significant needs, happened to have become worse with age (which M disputed). In 2004, a sexual offences prevention order had been made against him after allegations had been made in relation to his conduct with a 15 year old boy (without going into any detail, there was a bit of urination – a fact relevant below). He had a string of convictions for sexual offences going back to 1942. In 2006, M achieved priority on the council’s waiting list for a ground floor property and was offered one. He informed the Special Needs Housing Manager about the 2004 order for confirmation that he could accept the offer, as the flat was near a children’s playground. This information set a whole train of meetings and decisions in progress, quite properly, including a MAPPA meeting, the deliberations of which were confidential and not disclosed to M at any stage. His transfer application was removed from the system “because of the greater need to protect the public (principally children)”. He appealed. The council sent a “minded to” letter saying that they did not believe that M was at risk due to the inadequacy of his home – he had carers who met his reasonable needs to leave the property – and he was a grooming paedophile. So, if he had more accessible accommodation, this would increase the risks to children in the vicinity. The council confirmed that decision subsequently making clear that although it had failed to provide evidence as to its refusal to rehouse M, that did not mean there was no evidence (quite the contrary).

In one sense, the problem here lay with mapping the “risk-based” approach of MAPPA onto an allocations scheme (an interesting risk v need dichotomy). That was the first submission of counsel for M, that the council had not considered its criteria (which was emphasised by the composition of the MAPPA panel); secondly, it was argued that M had no opportunity to respond to the MAPPA findings because they had not been disclosed to him; and third, it was argued that M’s behaviour was not of a character where an outright possession order would have been made, particularly as some of the activities complained about were explicable by reference to M’s medical problems (there were urology issues, hence, M argued, the urination).

Cranston J dismissed the first two submissions on the facts – it was clear that the council were considering their allocations criteria by reference to the decision it made and the right of appeal (s 167(4A)) given to M; there was no procedural unfairness because “However opaque to outsiders the correspondence might have been, it would have been obvious to the Claimant the reasons for the Council’s decision” ([35]). On the third point, it will be remembered that Dixon v LB Wandsworth (No 1) [2007] EWHC 3075 (Admin) demonstrated how difficult such a decision would be to challenge. Dixon was not cited here but the conclusion was similar; indeed probably this was a clearer case than Dixon. The council took the view that the 2004 incidents would have enabled them to obtain an outright order particularly bearing in mind the background factors that the council has to make sure that its properties are properly managed and kept free from undesirable activity (citing Sandwell MBC v Hensley [2007] EWCA Civ 1425 at [25] Gage LJ). Further, the administrative and judicial functions “should not be elided … the message to me is clear: it is not for me to allocate Hackney’s housing” (Cranston J at [36], citing Otton LJ in Bristol CC v Mousah (1998) 30 HLR 32, at 40 [although take your pick of cases really] ). The Council was entitled to place weight on M’s conduct in 2004 leading to the order which was a serious matter; the council’s concerns were not fanciful; and the decision was therefore not perverse. The council had said that its stance in this case was “exceptional”, with which Cranston J agreed.

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Without exception

Published
by
J
on 15/09/2009
in Allocation, FLW case note and Housing law - All
. 0 Comments

R (Joseph) v LB Newham [2008] EWHC 1637 (Admin)

Blanket policies are unlawful. A first year law undergraduate could tell you that. Any lawyer or public body which didn’t know that would deserve public humilliation, probably involving being slapped across the face with a fish. Even a cursory flick through a public law text book would give you ample support for this elementary proposition of public law.

It is, therefore, something of a surprise to see Stadlen J dealing with… a blanket policy.

Mr and Mrs Joseph are secure tenants of the London Borough of Newham. At some time in the distant past, he was overpaid certain monies (probably Housing Benefit) and, when the Council sought to recover the monies, Mr Joseph disputed their entitlement to repayment. Nothing further seems to have happened, in particular, the Council took no steps to actually recover the money. Other than this one dispute, Mr Joseph had “assiduously paid his current rent and [had] been a perfect… model payer of his rent” (at [4]).

However, when Mr Joseph applied for a transfer, the Council declined to allow the same to go ahead on the basis that he had not repaid the disputed overpayment. In particular, as the Council said by letter of August 3, 2007:

“… it is the policy of the Council not to make offers to applicants who owe property related debts…”

This, as his Lordship noted, appeared to be “… a blanket policy not to make any offer to an applicant who owed a property related debt…”

Mr Joseph therefore applied for permission to move for judicial review of the decision in August 2007 not to permit him to take part in a transfer.

His Lordship was rather surprised by the approach taken by the Council:

(a) it was remarkable that no steps had been taken to recover the debt, but that it had been left as a “Sword of Damocles” hanging over Mr Joseph’s head;

(b) the Council did not appear to be entirely clear about whether or not the debt was now statute barred;

(c) the Council took – for the first time and without any evidence – the point that Mr Joseph could have utilized the internal appeal process rather than seek to move for Judicial Review;

(d) this was a “lamentable state of affairs” and “very unfortunate, to say the least” (at [9]) in circumstnaces where the total debt was only £892;

(e) his Lordship expressed the hope that there could be “some kind of reconsideration of the matter at an appropriate level in the Council… so that this matter can be resolved one way or another…” (at [10])

and, in the circumstances, it was appropriate to grant permission to move for Judicial Review.

I am – as may be clear – outraged, amazed and disapointed that a public authority has a blanket policy and sincerely hope that this judgment reminds parties of the fact that such policies are unlawful. It’s a shame that Mr Joseph acted in person, since conduct like this deserves significant costs awards being made!

(with thanks to HHJ Madge and Jan Luba QC for alerting us to this case via their excellent “Housing Law” column in Legal Action)

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Deep (Equality) Impact

Published
by
chief
on 14/09/2009
in Community care, FLW case note and Housing law - All
. 0 Comments

R (Domb) v Hammersmith and Fulham [2009] EWCA Civ 941

This is somewhat off our usual turf here at Nearly Legal, but should be of interest to anyone involved in public law challenges. This case involved a challenge to a decision by Hammersmith and Fulham to start charging (or more accurately, recommence charging) for home care services.

Three claimants, Deborah Domb, Dulce Sobral and Moses Bushiwa, challenged this decision claiming that it breached a legitimate expectation (in their manifesto before the 2006 local elections the local Conservative party stated that “A Conservative Council will not reintroduce Home Care Charging”) and it was a breach of the equality duties.

In the High Court Sir Michael Harrison disagreed ([2008] EWHC 3277 (Admin), but not on BAILII as far as I can tell). The claimants appealed, with the Equality and Human Rights Commission intervening in their support, but the Court of Appeal only considered the arguments on the equality duties, permission having been refused on the legitimate expectation issue.

Hammersmith and Fulham – home care services

The Council has roughly 1800 users of home care services. In 2006 the then Labour administration stopped charging. In May of that year power shifted to the Conservatives. The Council struggled with its budgeting, having pledged to cut council tax by 3%, and in 2007 cut the number of users of home care services by excluding those classified as having lower moderate needs. This still wasn’t enough, so they then considered two possibilities: either excluding everyone with moderate needs or charging for the service again, which would need to be paid by service users with income above a certain level. After consultation and carrying out a Predictive Equality Impact Assessment (PEIA) the Council decided to bring back charging. They estimated that some 600 of the 1,800 users would have to pay.

Equality Duties

In the Court of Appeal the argument was whether the Council had breached the three equality duties, covering race, gender and disability, contained in s 71 of the Race Relations Act 1976, s 49A of the Disability Discrimination Act 2005, and s 76A of the Sex Discrimination Act 1976. There are various components to these duties, but the key one in this case was the equality of opportunity duty. For disability this means that public authorities have to have due regard to “the need to promote equality of opportunity between disabled persons and other persons”: DDA, s49A(1)(c). The gender and race duties have similarly worded provisions.

The “big point” on behalf of the Claimants, advanced by David Wolfe, was that the Council could hardly be said to have taken the disability equality duty into account when the only two options being considered were imposing charges or raising the eligibility threshold. The whole budgetary canvas should be considered. If money needed to be saved then the council tax reduction could have been abandoned, or many other ways of saving or raising money could have been considered. Rix LJ did not agree. In his judgment it was not possible to go behind the decision to reduce council tax by 3%. At [61] he said that it was:

“mistaken to suggest that all possible theoretical options had to be regarded as being open… Decision making would simply become impossible on such a basis. One has to start somewhere, and the budget decisions which had already been taken, whether final or capable of being revisited, are not capable of being impugned in these proceedings.”

The Claimants also argued that the PEIA had found that the proposed policy would have a negative impact on female service users and those from an ethnic minority background. Rix LJ agreed with the submissions of Tim Kerr QC, on behalf of the Council, that this was not the case. Although ethnic minority residents were more likely to receive home care services, they were also less likely to have income to render them liable for the charge and so they were not disproportionately affected. Similar arguments were accepted with regard to the higher number of female service users.

Sedley LJ and Lord Clarke MR agreed with Rix LJ, but Sedley LJ expressed some dissatisfaction with this case. He felt that the premise that the decision to cut council tax by 3% had to be implemented was “highly debatable” ([78]) and that parts of the PEIA were “Panglossian”. He concluded at [80] that:

The object of this exercise was the sacrifice of free home care on the altar of a council tax reduction for which there was no legal requirement… there is at the back of this a major question of public law: can a local authority, by tying its own fiscal hands for electoral ends, rely on the consequent budgetary deficit to modify its performance of its statutory duties? But it is not the issue before this court

Comment

“But they haven’t done an equality impact assessment” is a fairly common complaint, although even that can be of less use to a challenge than people think; see, for instance, R(Brown) v SSWP [2008] EWHC 3158 (Admin) and R(Meany) v Harlow DC [2009] EWHC 559 (Admin). However, in this case the Council had carried out an assessment, and seemingly a fairly detailed one at that.

I do feel some sympathy with Hammersmith and Fulham. Most LAs charge for their home care services (about 97% charge according the Council’s evidence, which seems right), and a lot will only provide services to people classified as criticial or substantial. The Council’s charging rate was below the average for London boroughs. Yet they didn’t need to make this decision. As Sedley LJ says the Council tied its own hands.

Those of you particularly interested in EIAs might want to look at a current consultation which considers this very topic. It is open until the end of this month.

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Unwelcome in the valleys

Published
by
NL
on 14/09/2009
in ASB, Housing law - All, Introductory and Demoted tenancies, Possession and secure-tenancy
. 0 Comments

While we are in Wales and with thanks to the Garden Court housing bulletin, we report an Ombudsman’s decision Complaint against Cardiff CC 200702358 [pdf]

Mr Davies and Miss Brown complained about Cardiff Council’s failure to deal with noise nuisance and threatening behaviour from Mr Williams over a period of some years. All parties were Council tenants, Mr Williams lived in the flat below the complainants.

The Council’s failure to deal with Mr Williams had been the subject of a previous Ombudsman’s report in 2007 (200501496/7/8), which had made extensive recommendations on Cardiff’s handling of ASB. Mr Williams had been transferred, but to a nearby flat, in the course of this investigation.

Mr Williams had had an introductory tenancy when the initial complaints of noise nuisance where made – amounting to 8 months of near daily noise nuisance, supported by nuisance diaries and some witnessed by Council officers, before Mr Williams received ‘warnings’. There was also a police interview about threatening behaviour. All in the first year of Mr Williams introductory tenancy. Despite this, the Council confirmed Mr Williams secure tenancy. In 2006 there was an incident of threatening behaviour. The Council accepted Mr Williams account, but criminal charges were brought by the police and a conviction obtained. After the conviction, the Council served an NSP on Mr Williams, but took no further action.

Further complaints of noise and behaviour were referred by the Council to ‘Pollution control’ who declined to deal with out of hours complaints on the basis that ‘the case was too dangerous to be put to its “out of hours” service due to the perpetrator‟s violent history and the consequent risk to the safety of staff.’

From the beginning of 2007:

Miss Brown continued to submit nuisance diaries including one example from the 9 February to 23 March that had eleven separate incidents of amplified music and other disturbances; her other diaries were similar in content. In April 2007, Pollution Control served a noise abatement order on Mr Williams. Similar reports continued to be made through the year and by October witness statements were being obtained from Mr Davies and Miss Brown to support legal action by Pollution Control. An email between Housing staff and Community Safety at this time acknowledged that Miss Brown was in fear for her safety as she was the main complainant and had reported hearing Mr Williams make verbal threats to kill her and her boyfriend. The housing officer asked for advice from Community Safety on security measures for the flat and a community alarm and additional locks were provided.

In June 2008 Mr Davies and Miss Brown advised the Council that in the face of continuing complaints and lack of promised action by the Council that they had lost faith in its willingness to bring the nuisance to an end and they withdrew their witness statements and asked for a transfer instead. Pollution Control explained that they could not proceed with action under EPA without their involvement and tried to persuade them to continue but they did not do so. The Council took action to register the transfer request in November 2008 but Miss Brown had not been moved at the time of writing this report.

In October 2008 the Council transferred Mr Williams to another flat on the same estate which is in a nearby block and has windows facing the windows of the flat occupied by Miss Brown and Mr Davies. The Council said that the transfer was not connected with the complaints that had been made against him and had taken place within a timescale that was normal for that estate.

The ombudsman pointed out the range of options legally available to Cardiff, from ASBIs and the EPA through to Introductory and Demoted tenancies and eviction, and also to Cardiff’s policy, which included:

a description of the legal and non legal remedies available, examples of when each should be considered together with the grounds on which they could be sought and the burden of proof required. For example, it describes the Anti-Social Behaviour Injunction which would be used in an emergency to protect a victim or witness who had been threatened and for which the civil burden of proof, being “likely to have happened”, would be required. The grounds for seeking this remedy would be conduct that is capable of causing a nuisance or annoyance to any person and affects the housing management functions of a landlord.
The procedure includes a flow chart which directs staff to devise an action plan and to conduct a formal assessment of the complaint if it is not resolved.
It advocates weekly or monthly updates to the complainant at all stages of the complaint and speedy action at all stages; for example, where there has been violence or threats of violence or deliberate damage to property, the matter should be dealt with immediately but not more than 24 hours after the report. All emergency cases should be discussed with the Housing Team Manager within 24 hours.

This had clearly not happened at all.

The previous report had found that Cardiff left ASB to pollution control almost entirely.

The Council officers evidence was varied and disjointed. Notable was the District manager who was concerned that for housing officers:

a NOSP was regarded as a form of warning letter and that if there were no problems in the initial 28 day notice period, then it was not followed up and was sometimes even withdrawn.

Nobody had any idea why this case hadn’t been referred to the dedicated ASB unit and the newly appointed ASB specialist solicitor ws concerned about the lack of integration and about the tendency of housing officers to treat introductory and secure tenancies alike.

In a frankly damning conclusion, the Ombudsman found systematic failings:

i) Late referral of the case for consideration of possession proceedings and the lack of active engagement or consideration of management or legal remedies by the Housing Department, who relied on the Pollution Control section to take the lead in bringing the nuisance under control although many of the issues being complained of were breaches of tenancy rather than noise pollution issues.

ii) the

lack of adequate response to the problems during 2007 and up to October 2008, when Mr Williams was moved, this being after the implementation of the Council‟s action plan following the previous Ombudsman‟s report (para 23) which was completed in March 2007. The actions of its officers and interviews suggest that the lessons have not been fully learned from the last report and that further work to reinforce the action plan is still needed. I feel that in its response to the draft report the Council has not properly absorbed the chronology of complaints and has failed to take account of the evidence contained within its own files.

iii) the Council‟s failure to take advantage of the opportunity afforded by the fact that Mr Williams was on an introductory tenancy agreement when it received numerous complaints from Miss Brown from early in his tenancy and from another tenant complaining in very similar terms of eight months of nuisance from the time Mr Williams moved in.

iv) that

the Council says in its response to my draft report that it approaches introductory tenancies in the same way as secure ones, and I believe it needs to revisit the statutory provisions on this and be reminded of the purposes for which Parliament brought in introductory tenancies. Having examined the WAG guidance on which the Council relies in its response, I feel that it has quoted selectively from this document and that a more clear sense of what the document intends is obtained from reading beyond the lines quoted.

v) the failure to pursue Mr Williams for criminal damage, leaving it to Ms Brown to push the police for a criminal prosecution.

vi) The failure to pursue the NSP, once served.

vii) No consideration of obtaining an injunction to protect the safety of Ms Brown and Mr Davies, despite the Council acknowledging a threat to its own staff.

viii) A lack of effective multi agency working.

Therefore:

I find maladministration in that the Housing Department has failed to follow its procedures in respect of the following matters:-

Lack of regular updates to the complainants and failure to convey decisions
Absence of an action plan
Absence of speedy action at any stage in the handling of the case
Absence of consideration of legal alternatives by the Housing Department
Absence of legal action to protect witnesses
Lack of effective working with other departments
Late referral to legal department
Late installation of security measures

I find no evidence of considerations of proportionality of action or right to home life under Article 8 the Human Rights Act 1998 in this case and these considerations are not directly referenced or embedded in the anti social behaviour procedures of the Council. I find that Miss Brown‟s and Mr Davies‟s human rights were engaged in this case but were never addressed by the Council.

Neither is there any evidence of considerations of Miss Brown and Mr Davies‟s position under s.183 of the Homelessness Act 2002, specifically in relation to the appropriateness of their remaining in the flat given the actual violence and repeated threat that they experienced. This is a statutory duty. Additionally, the delay of five months in dealing with their transfer request was unacceptable.

Recommended:

Ms Brown be transferred to a suitable location within 3 months

Ms Brown be paid £7,500 for the 3 years of evidenced complaint

The Council to revise ASB policy to formalise early discussion with legal representatives and consideration of the alternative legal remedies that are available to tackle anti social behaviour, and to include in its procedures appropriate advice and considerations under the Human Rights Act 1998 and Homelessness Act 2002.

Further training

Council to evidence actions in 3 to 6 months

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Of Car Parks, Caravans and Councillor's commitments

Published
by
NL
on 13/09/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 0 Comments

The City & Council of Swansea v Christine Joyce (and others) Cardiff District Registry, Chancery Division 31 March 2009 7CF30099

This is an example of a post Doherty public law defence at first hearing, and one that succeeded where an alternative defence of estoppel didn’t.

Two Traveller families, the Joyces and the McDonaghs, had been camped on the car park at Swansea Enterprise Park, on various parts over the years (about 20). The car park was used as an overflow for events at the nearby Liberty Stadium. The Council had the freehold for the Enterprise Park. In May 2007, the Council sought to get the Joyces and McDonaghs to move from the patch they were occupying as it was likely to be needed for forthcoming events. There was no space at the one authorised site.

Following a meeting in May 2007 with Councillor Hague of Swansea Council, the Joyces moved to another, separate part of the Park. The McDonaghs were to follow. The Council put up fencing, levelled the ground, provided keys for the entrance barrier, arranged for rubbish collection and resurfaced parts of this area.

What was said at the meeting with Councillor Hague and its import was contested, and we’ll come back to this. However, the Council brought possession proceedings in July 2007 for the whole of the retail park area, including the part on which the Joyces and McDonaghs were, and against various named defendants, including these two families, and un-named others.

The Joyces and McDonaghs defended the claim on the grounds that:
1. The defendants have moved to their present location and expended time and money on improving it and otherwise acted to their detriment in reliance on a promise or assurance given in May 2007 by Councillor Hague that they could stay there for some 6-9 months, until a permanent site was available or a planning decision had been reached on whether to grant permission. Councillor Hague also raised the possibility that the present site may become permanent. This gave rise to an estoppel on the Council seeking possession.

2. The same grounds gave rise to a legitimate expectation that they would not be evicted before a suitable site was found, which would likely have succeeded as a JR ground, so can be relied upon as a defence in possession proceedings.

3. In seeking possession, the council was acting as no reasonable authority would do – the irrationality defence.

4. It is was not admitted that the Council had the necessary consent of the leaseholders to bring proceedings on their behalf.

The issue of what was said by Councillor Hague, whether he had actual or apparent authority to make such a promise and what works had been carried out by the Council in May 2007 was determined at a preliminary hearing. At that hearing it was determined that Councillor Hague had said that the families would be there for 6-9 months, that toilet and washing facilities, electricity, fencing and hardcore would be arranged and he would see what he could do about longer term permission. Councillor Hague had the apparent authority of the Council to say this (although not the actual authority). Some of the works had been carried out.

After the preliminary hearing, there was a period for settlement discussions on a consent order. This failed.

At the final hearing HHJ Jarman QC sitting as an additional judge of the Chancey Division held:

i) A meeting of the cabinet of the Council held in June 20077, at which the decision to seek possession had been made, had not been informed of the May agreement and the promises made with the apparent authority of the Council. It did not take these into account in its considerations. This failure was material to the decision to seek possession. No reasonable council could come to such a decision without having regard and giving due weight to each of the terms of the May agreement.

Following Kay v Lambeth LBC [2006] HLR 570, the council’s decision is challengable on grounds that it was a decision which no reasonable person would consider justifiable, as ‘more fully explained’ by Lord Hope in Doherty v Birmingham CC [2008] 3 WLR 636. The focus in this case was on the processes leading to the decision to seek possession. The Council’s right to seek possession was undoubted and the common law must be taken as compatible with the Human Rights Act 1988.

What weight the Council ought to have given to the May agreement in reaching its decision was not for the Court to say, but it ought to have been considered.

ii) On legitimate expectation, while there was detrimental reliance, it must be seen in the context of the limited promises in the May agreement and the different view of other councillors. A legitimate expectation would not make an eviction now, 22 months later, unjust.

iii) The same is true of the estoppel argument, for the same reasons. It would not succeed.

iv) There was evidence of the consent of the lessees.

Various other points from the Defendants on regard to policy and forthcoming guidance didn’t get anywhere.

Possession order refused in respect of the part of the Park covered by the May agreement as against the Joyces and McDonaghs.

With thanks to our friends at the Community Law Partnership/Travellers Advice Team for telling us about the case and for the transcripts.

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