Archive for October, 2009

Yeah, of course I'll call

Published
by
NL
on 29/10/2009
in Housing law - All
. 0 Comments

It’s a bit like one of those nights that just, you know, didn’t work out. You remember, it was all very slow, not really gratifying and, in the end, disappointingly inconclusive.

The Government has released its response [link to PDF] to the Parliamentary Joint Committee on Human Rights report of 2007. Yes, 2007. The report that was released prior to the Lords judgment in YL v Birmingham City Council and the changed law in respect of care homes providing Local Authority contracted services in Health and Social Care Act 2008.

So, the Government notes the concerns that the Courts’ approach to what constitutes a public function for the purposes of the HRA is apparently too much guided by judicial review precedent and not enough focused on a ‘functional approach’ to the definition. It had followed the 2004 report’s recommendations that it should intervene in a suitable case to put this view and intervened in YL.

Now, the Government takes the view that having intervened in YL, unsuccessfully, and changed the law on care homes, what more can it really be asked to do. Yes, it is a bit disappointed too, but it cleared up the specific YL mess didn’t it? Isn’t that enough?

On the view that it isn’t really enough, because YL still covers all those other contracted out provision situations apart from the specific care home one, the Government takes the view that, well, yeah, whatever… At least YL clarified the law, apart from the specific situation it decided upon, where we changed the law.

On housing, at para 72:

There is no evidence that Parliament gave any considered view during the passage of the Human Rights Bill as to whether the provision of social housing is a function of a public nature. The Government’s view at this time is that the provision of housing by a landlord is not inherently a function of a public nature, even though a local authority can also arrange for the provision of housing. One needs instead to consider in the round the features of the function of providing social housing. On this basis, the Government’s view is that the balance of these features indicate that it is not a function of a public nature. To reach this conclusion based on this reasoning is not at all incompatible with the position that the Government has consistently taken on the interpretation of section 6 of the Human Rights Act, including before the House of Lords in the YL case.

But what of Weaver v L&Q, you might ask? The only mention is at para 100. Here it is:

Furthermore, the Government is considering the recent judgment of the Court of Appeal in R (Weaver) v London & Quadrant Housing Trust, which may be heard in due course by the Supreme Court. The Government nevertheless remains firmly committed to consulting on this issue.

So, they are considering and consulting while at the same time having the view that ‘the function of providing social housing [...] is not a function of a public nature’.

There is more, of course, but largely more of the same, so forgive me for not going into detail.

What is not at all clear, but definitely a question arising is if Weaver v L&Q does go to the Supreme Court, will HMG be intervening? And if so, in which way?

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Applying to set aside possession, or when is a trial not a trial?

Published
by
NL
on 24/10/2009
in FLW case note, Housing law - All, Leasehold and shared ownership and Possession
. 6 Comments

Forcelux Ltd v Binnie [2009] EWCA Civ 854

This was the Court of Appeal hearing of an appeal from a decision by a Circuit judge on an appeal from a order to set aside a possession order and grant of relief from forfeiture (Still with us? Good). It is potentially an important case for anyone looking to apply for set aside of a possession order made at first hearing of a possession claim, as it gives the Court a broader discretion to make a set aside order under CPR 3.1(2) than the strict requirements of CPR 39.3.

Forcelux was the landlord of the flat concerned and Mr Binnie held a long lease at a ground rent, with about 94 years left to run. The lease contained a provision for forfeiture on non-payment of ground rent.

Mr Binne fell into arrears of ground rent of about £300 and £600 insurance premiums. Forcelux obtained a default judgment on the sums, but no payment was made. In June 2007, Forcelux served a notice on Mr Binnie under section 146 Law of Property Act 1925 and section 81 Housing Act 1996. The notice relied on non-payment of insurance premiums in the sum of £599.05.

In July 2007, Forcelux began County Court possession proceedings. The claim form gave the flat as Mr Binnie’s address. A hearing was set for September 2007. The Court attempted to serve proceedings by post, which were returned marked ‘gone away’. In fact Mr Binnie had not been living at the flat for some time, he was living with his girlfriend and, despite the girlfriend’s flat being in the same building, his evidence was that he had not picked up any post for a long time. Mr Binnie was thus unaware of proceedings.

At the September 2007 hearing, in the absence of Mr Binnie, a possession order was made. The Court served the order by post on the flat – again returned marked gone away. In evidence, Forcelux showed photos of the flat boarded up and apparently vacant. In October 2007, Forcelux sent people to take possession, they were seen by Mr Binnie’s girlfriend, who alerted him. This was the first that Mr Binnie was aware of the proceedings. he obtained papers a saw solicitors. There was a delay of three weeks before they asked Forcelux for a copy of the lease. At the beginning of December, Mr Binnie sent a cheque for the £900 to Forcelux’s solicitors. It was returned. It was not until February 2008 that Mr Binnie made an application to set aside the posession order and relief from forfeiture. At initial hearing, the District Judge found that the Claim was deemed served. This is not appealed (if the claim was not served in compliance with the CPR, an application to set aside would not fall under CPR 39.3). At the subsequent hearing in July 2008, the District Judge set aside the possession order and granted relief.

Forcelux appealed. The Circuit Judge dismissed the appeal. Forcelux appealed to the Court of Appeal.

Forcelux contended that Mr Binnie had not ‘acted promptly’ once he found out the possession order had been made, as required by CPR Rule 39.3(5)(a). CPR 39.3(5) states that the Court may only grant a set aside application if the applicant:

(a) acted promptly when he found out that the court had exercised its power to……enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at trial.

So acting promptly is a requirement before a set aside can be granted. Forcelux argued that the DJ had therefore been wrong to make the set aside order.

But Rule 39.3 is expressly concerned with ‘trial’. Was the hearing of September 2007 a trial? Rule 55, dealing with possession proceedings states at 55.1 that once the claim has been issued, the Court is to fix a date for ‘the hearing’. And at 55.8 the rule states:

(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may

(a) decide the claim; or

(b) give case management directions.

(2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated.

(3) Except where –

(a) the claim is allocated to the fast track or the multi-track; or

(b) the court orders otherwise,

any fact that needs to be proved by the evidence of witnesses at a hearing referred to in paragraph (1) may be proved by evidence in writing.

(Rule 32.2(1) sets out the general rule about evidence. Rule 32.2(2) provides that rule 32.2(1) is subject to any provision to the contrary)

(4) Subject to paragraph (5), all witness statements must be filed and served at least 2 days before the hearing.

Rule 32 addresses evidence both at trial and at hearing other than trial.

So there is nothing to state that the first listed hearing is a trial, even if the case is decided at that hearing. Where the CPR does define trial, it is at the end of a process, with allocation and case management directions given.

The Court of Appeal were not persuaded that the hearing of September 2007, the first listed hearing after issue, was a trial:

32. The judge (in practice the district judge) is given, expressly, two options under Rule 55.8(1). He may either decide the claim or he may give case management directions. Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions are to be given, including allocation to a track. The aim of such directions must be to bring about a final disposal of the claim. Unless allocated, by agreement, to the small claims track, case allocation will be either to the fast track or the multi-track. In either case, case management directions are made with a view to an eventual “trial” – the word used in both Rules 28.2 and 29.2.

33. If the first option – deciding the claim – is adopted it can only be because the judge considers that he is able to decide the case on the evidence before him. In an exceptional case, it may be that he could, then and there, conduct a hearing on the merits. Thus, suppose his list has collapsed and he has half a day spare; suppose both sides are present and represented; and suppose that both sides have all their evidence available and agree that the matter should proceed. In these circumstances, the hearing could properly be called a trial. The judge would in effect be exercising his case management powers and bringing forward the trial to the date of the hearing.

34. But that would be an exceptional sort of case. The more usual sort of case, in a busy possession list with perhaps 5 to 10 minutes allowed for each case, will be an undefended case where the defendant, if he attends at all, has nothing to say. The judge will look at the evidence from the claimant – probably all the evidence there is – and make a determination and decision: he will satisfy himself that the case is made out on the claimant’s evidence and satisfy himself that any necessary statutory requirements are fulfilled; he will make a possession order (suspended or not as the case may be).

[...]

36. I do not consider that such a process of determination and decision can sensibly be called a trial as a matter of the ordinary use of the word. Nor do I consider that it is been seen as a trial within Rule 39.3; the word is not to be given some special and wider meaning in the context of that Rule. Rather, it can be seen more as a summary procedure in the sense of a procedure carried out rapidly with the omission of most of the steps which in an ordinary case lead to trial. It also has a lot in common with a disposal hearing as referred to in the PD to Part 26, which I have already described, and which is clearly not a trial either in the ordinary sense of the word or in the context of the CPR.

The decision of a case in this manner is closer to summary judgment than trial. Against Forcelux’ assertion that a hearing under Rule 55.8(1) is necessarily a trial, it is clearly the case that such a hearing may simply involve giving directions to trial.

It is true that s.138(9A) County Court Act 1984, permitting applications for relief from forfeiture, only applies to a tenant whose lease has been forfeited for non-payment of rent and where possession has been recovered under s.138(3). S.138(3) states that a requirement for a possession order is that “the court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture.” This may appear to mean that the relief from forfeiture provision only applies where the possession order was made at trial. However, there was no reason to presume that ‘trial’ has the same meaning in s.138 as it does in CPR 39.3. After all, before CPR 55 was introduced, a possession order could have been made by summary judgment under Part 24. Part 55 introduced a new ’summary’ route with the hearing. It was unlikely that Parliament intended s.138 not to apply where the possession order had been obtained by summary judgment.

So, the hearing in September 2007 was not a trial. Therefore Rule 39.3 did not apply. In making the set aside order, the DJ presumed the order was made under the discretion in 39.3(3). This was not the case. While in Estate Acquisition and Development Ltd v Wiltshire [2006] EWCA Civ 533, the Court of Appeal had applied CPR 39.3 in an application from relief from forfeiture on a possession order made at first hearing, the issue of whether this was a trial or not had not been raised or argued, so it was not an authority on the point.

As 39.3 was not at issue, ‘acting promptly’ was not a requirement, but simply a factor to be taken into account. The rule that covered the situation was Rule 3.1(2) (m) “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”, which gave ample power to set aside an order if the interests of justice demand it. Further, Rule 3.1(7), providing a power of the court under these Rules to make an order, includes a power to vary or revoke the order, shows that there is a power to do so under Rule 31.2(m).

In considering the exercise of the power under Rule 3.1(2) as the Circuit Judge had done, the checklist in Rule 3.9(1) is a useful guide, although not directly applicable. In this case:

a. the interests of the administration of justice; there is nothing which suggests that the interest of the administration of justice would be prejudiced or compromised if the application for relief were granted;
b. whether the application for relief has been made promptly; I doubt very much that it was and proceed on the footing that it was not;
c. whether there is a good explanation for the failure; none has been provided. HH Judge Hampton herself observed that there was no explanation (but see paragraph 65 below);
d. whether the failure was caused by the party or his legal representative; the failure appears to have been entirely that of Mr Binnie’s solicitors;
e. the effect which the failure to comply had on each party; Mr Binnie will lose a valuable asset for want of payment of a comparatively modest sum which he attempted to pay by cheque in December 2007, his cheque being returned.
f. the effect which the granting of relief would have on each party; the Lease would be reinstated. Forcelux would lose what I think can fairly be described as a windfall.

This was a case for the exercise of discretion in favour of Mr Binnie. He had not acted promptly (and in principle would be held with the delay of his legal representatives, Training in Compliance Ltd v Dewse [2001] CP Rep 46, although Rule 3.9(1)(f) does mean that whether the delay was due to the the applicant or his representatives can be considered as a factor in the exercise of discretion). However, the delay was not such as to disentitle him from relief and enable Forcelux to keep their windfall. The Court of Appeal exercised the discretion under Rule 3.1(2) replacing the DJ’s set aside order, and dismissed the appeal.

In the costs hearing Forcelux Ltd v Binnie [2009] EWCA Civ 1077, Forcelux argued that it was entitled to recoup its costs from Mr Binnie under the lease, which had a covenant on Mr Binnie:

To pay all costs charges and expenses (including legal costs and also charges payable to a Surveyor) which may be incurred by the Lessor or in contemplation of any application to the Lessor for any consent pursuant the covenants herein contained and of any steps or proceedings or the service of any notice under Sections 146 or 147 of the Law of Property Act 1925 including the reasonable costs charges and expenses aforesaid of and incidental to the inspection of the Demised Premises the drawing up of schedules of dilapidations and notices and any inspection to ascertain whether any notice has been complied with and such costs charges and expenses shall be paid whether or not any right of re-entry or forfeiture has been waived by the Lessor or avoided otherwise than by relief granted by the Court

The Court agreed that possession proceedings brought to enforce a right of re-entry following a notice under section 146(1) could be construed as proceedings “under” section 146 and so fall under the clause.

However, “(a) that the contractual point was not raised below [in the set aside hearing or first appeal] or before us on the appeal (b) that costs orders were made below including the one made by DJ Hudson which deprived Forcelux of an element of its costs and (c) that the appeal failed on both the “trial” point and the issue of the exercise of discretion. ”

While the general principle is that the Court’s discretion on the award of costs should be exercised in line with the contractual provision. the general principle is not a rule of law and it may be that in particular cases, or classes of cases the discretion should override the contract.

For example, if a lessor loses a piece of litigation at first instance which it was reasonable for him to fight, it might be wrong to deprive him of a contractual right to costs. But if he goes on to appeal the decision against him and loses the appeal, then it is not obvious to me that the general rule should be that the discretion should be exercised in accordance with the contractual right; or if it is the general rule, then the court should be willing to depart from it quite readily.

Here, “I consider that this is a case where, in the exercise of the court’s discretion, Mr Binnie is entitled to a costs order which departs from the contract. I would reach that conclusion even if the point had been taken at the beginning of this litigation before DJ Hudson. I would do so because application of the general rule in relation to the facts of this appeal would cause an injustice to Mr Binnie.”

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A quick update from the ECJ

Published
by
J
on 23/10/2009
in FLW case note and Homeless
. 3 Comments

Readers might remember the case of LB Harrow v Ibrahim and another [2008] EWCA Civ 386 (noted by us here) where the Court of Appeal referred three questions to the ECJ concerning the rights of residents of family members of former Community workers.

The Advocate General (Mr Mazak) has now delivered his opinion in the case, which is available here. The Advocate General is not a Judge of the ECJ nor is his view binding on the Judges although, in practice, the ECJ usually follows the advice given. We will, therefore, have to wait for the final decision, but, for what it is worth, he has concluded:

(a) children of EU citizens who have installed themselves in a member state during the exercise by their parents of rights as residence as workers in that state are entitled to reside in the state in order to attend general educational courses;

(b) a parent who is the primary carer of those children – irrespective of his or her nationality – is entitled to reside with the children in order to allow the children to exercise that right. The fact that the parent who is a citizen of the EU is no longer working in that state and has left the state is irrelevant;

(c) it is similarly irrelevant that the children and their primary carer are not self-sufficient and are dependent on social assistance;

(d) the length of time that the children have been enrolled in their educational courses is also irrelevant.

Incidentally, counsel’s advice to Harrow on the then prospective Court of Appeal proceedings in this case is available online as part of memo here [link to .doc] and google web version here. It really is amazing what Google can find!

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I think they're trying to tell us something

Published
by
J
on 23/10/2009
in FLW case note and Housing law - All
. 2 Comments

The European Court of Human Rights has just given judgment in Paulic v Croatia (App. No. 3572/06), a case on Article 8 and possession proceedings. Given the unbroken trend of authority from Connors to Zehentner, via McCann and Cosic (all noted in the excellent and Tarantino-themed post by Dave, here), it shouldn’t be too difficult to guess how this case went.

Mr Paulic was a civilian employee of the Yugoslav People’s Army (“YPA”) who, in 1991, was granted the right to occupy (and purchase) a flat owned by the YPA. In July 1991, the Croatian state prohibited all land transactions involving property which was owned by the YPA. Despite this, Mr Paulic and his family took possession in September 1991. In October 1991, the possessions of the YPA (including the flat), passed to the Republic of Croatia.

In 1997, Mr Paulic applied to exercise the Croatian version of the Right to Buy and the Croatian state cross-applied for possession of the flat. In October 2000, the Municipal Court dismissed the Right to Buy claim and granted possession. The reasoning of the Court was that Mr Paulic did not have a tenancy, having entered into possession in violation of the July 1991 prohibition. Since Mr Paulic had no legal right to occupy the flat, a possession order had to be made. His appeal to the County Court was dismissed for similar reasons. A further appeal to the Supreme Court also failed as did a complaint to the Constitutional Court. At the date of the judgment of the ECtHR, he still had not been evicted as enforcement of the judgment had been postponed.

Mr Paulic applied to the ECtHR, contending that the requirement to make a possession order without any regard to his circumstances was a breach of Article 8. In particular, he relied on the fact that:

(a) the flat had been his home for more than seventeen years;

(b) he had been allowed into possession in the first instance.

The Government argued that there was no interference because:

(a) Mr Paulic had not yet been evicted;

(b) possession had been granted pursuant to the domestic law which regulated ownership and use of land. That domestic law fell within the margin of appreciation to be afforded to the State.

The ECtHR found that there had been a violation of Article 8. The property was clearly Mr Paulic’s home. Merely because he had not been evicted did not mean that there was no interference, that occured when the possession order had been made – Stankova v Slovakia (App. No. 7205/02), McCann v UK (App. No. 19009.04) and Cosic v Croatia (App. No. 28261/06). There was no reason to depart from those decisions.

The domestic courts had only considered the position as a matter of domestic law and, once satisfied that domestic law did not provide Mr Paulic with a right to remain, had “made no further analysis as to the proportionality of… his eviction” (at [42]), That was insufficient. The “guarantees of the Convention require that the interference… be not only based on the law but also be proportionate… to the legitimate aim pursued, regard being had to the particular circumstances of the case” (at [42]). No provision of domestic law should be interpreted and applied in a manner which is incompatible with the Convention (again, at [42]).

It went on to say that “any person at risk of an interference with his rights under Article 8 should be able to have the proportionality and reasonableness of the measure determined by an independent tribunal applying the relevant principles under Article 8″ (at [43]).*

It did accept, however, that a court only needed to consider Article 8 where the defendant raised such an argument and that, if raised it would be for the court to rebut the claim. The ECtHR did not accept that allowing occupiers to raise an Article 8 defence in this manner would have serious consequences for the functioning of domestic landlord and tenant law in any of the countries bound by the Convention (at [43]).

Accordingly, there had been a violation of Article 8.

For my part, I couldn’t agree more. What is particularly important (at least to my mind) if the decision (in line with Cosic and Stankova) that it is not for a domestic court to act in a manner which violates the Convention and a court cannot claim that it was merely applying domestic law as an answer to such a criticism. cf the discussion of s.6(2)(b), Human Rights Act 1998 in Doherty. As I’ve said previously, I don’t see how Kay et al can stand in the face of this consistent line of jurisprudence from the ECtHR and Paulic should provide further encouragement for those who seek to have the Supreme Court reconsider (as a panel of 9?) the decisions in Qazi, Kay and Doherty.

*(By way of footnote – para [43] of Paulic is lifted from Cosic (at [22] of that case) and goes slightly further than McCann (at [50] of that judgment). McCann only said that an assessment of the proportionality is required whereas Paulic and Cosic say that an assessment of the proportionality and reasonableness is required. It seems to me that Cosic and Paulic support a view that reasonableness is something different to proportionality).

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Thoroughly premature planning injunction…

Published
by
NL
on 23/10/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 4 Comments

Brentwood Borough Council v Ball & Ors [2009] EWHC 2433 (QB)

This was the hearing of an application for an injunction by Brentwood BC. The defendants were six gypsies who had together purchased a plot of land, called Plot 3, in 2009. This was designated agricultural land in Brentwood’s area.

At the time of purchase, the plot was subject to two enforcement notices from 2001, one of which required the removal of all touring caravans from the site, the permanent cessation of the use of the site for residential purposes and reinstatement of the site to a condition suitable for agriculture. That notice had not been enforced by Brentwood in the time since 2001.

Before buying the land, the purchasers had consulted a planning consultant, who had advised them that, if planning permission for use as a residential caravan site was applied for, the most likely outcome was long term temporary permission.

After purchase and over a bank holiday weekend in April 2009, the Defendants and their families moved onto plot 3:

bringing some fourteen caravans and some 30-50 lorry loads of road planings and earth moving equipment which was used to create an encampment with a new continuous roadway laid down the middle of the site with six pitches, three on either side. Earth works were carried out to create an artificial bund or screening mound along parts of the northern and southern boundaries of the site and to level parts of the site. Timber panel and concrete fencing was erected both along the boundaries of the site and within the site dividing it into the six pitches.

It was common ground that this was in breach of the 2001 enforcement notice and without planning permission. After the holiday, Brentwood served enforcement notices and then issued the application for an injunction. On the same day an application for retrospective planning permission was made. This was refused in June 2009 and an appeal lodged by the Defendants, adjourned pending these proceedings.

The Defendants argued that:
i) there had been caravans on the site for many years without the Council seeking to enforce the notices.
ii) They had liaised with the Council in seeking a plot and had sought advice on potential planning permission
iii) They were seeking a long term site for family reasons and some had previously been forced to live in highly dangerous conditions
iv) there is a likelihood, and certainly no less than a real prospect, of their planning appeal being successful.

The Court summarised the guidance in South Bucks District Council v Porter [2003] 2AC 558 on the discretion under Section 187 B of the Town and Country Planning Act 1990 as follows:

(1) The principal purpose of the jurisdiction to grant an injunction under section 187 B is to promote compliance with planning law. The power exists above all to permit abuses to be curbed and urgent solutions provided where they are called for. There is an important public interest in securing compliance with and if necessary enforcement of planning law.

(2) An injunction is the most draconian measure available to promote that end. In the ordinary case, absent particular factors pointing to the need for immediate injunctive relief, it is available as a last resort when the other remedies of enforcement notice and prosecution have been tried and found wanting, or at least where there is good reason to believe that if deployed they will be of no effect. The granting of an injunction is more likely to be proportionate where that is the case than where it is not.

(3) The greater the adverse environmental impact of the breach or anticipated breach of planning law sought to be restrained, the greater will be the case for granting an injunction. The planning history of the site is likely to be a relevant factor.

(4) Before deciding to apply for an injunction under section 187 B, it is not sufficient for the local planning authority to conclude that it is the only means of preventing an actual or anticipated breach of planning law. It is in addition necessary for it to consider fully whether there are any countervailing issues of hardship for the defendant flowing from the grant of an injunction and whether the merits of an injunction outweigh any such hardship. Where it has done so and concluded that it is nonetheless necessary or expedient to seek relief an injunction is more likely to be granted since the court must accord respect to the balance which the local planning authority, as the democratically accountable body, has struck between public and private interests. Where it has not done so, an injunction is less likely to be granted.

(5) The discretion under section 187 B is a wide one. At its heart, in a case where hardship is alleged, lies what may be a delicate balancing exercise between the public interest in upholding planning law and protecting the environment and the private interests of the defendant in avoiding undue hardship as a result of being forced, under threat of potential imprisonment, to leave his place of residence together with his family.

(6) In weighing this balance the court is not bound by the balance struck by the local authority, assuming that it weighed these two factors in the balance. It is not the function of the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. The court is as well placed as the local planning authority to decide whether the considerations relating to what Lord Hutton called the human factor outweigh purely planning considerations.

(7) An injunction should only be granted if, in the judgment of the court, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and to the personal situation of and any hardship to the defendants and his family, it would be a proportionate remedy. Proportionality requires that an injunction should not impose an excessive burden on the individual whose private interests are at stake, in the case of a gipsy his private life and home and the retention of his ethnic identity.

(8) The following factors may point in favour of granting an injunction: where there has been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendant or evidence that he has played the system by wilfully exploiting every opportunity for prevarication and delay; where conventional enforcement measures have failed over a prolonged period to remedy the breach by the defendant of planning control; where there is some urgency in the situation which is sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public; where there is clear evidence of suitable alternative accommodation for the defendant and his family.

(9) The following factors may point against granting an injunction: where there has not been a history of prolonged breach of planning control, persistent non-compliance or playing of the system by wilfully exploiting every opportunity for prevarication and delay by the defendant; where conventional enforcement measures against the defendant have not been taken and found wanting; where there is no urgency in the situation (for example because of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public) which is sufficient to justify the compulsory removal of the defendant and his family from a site where they are residing; where the local planning authority failed fully or at all to consider or weigh in the balance the personal circumstances of the defendant and his family and any hardship which might flow from the grant of an injunction; where there is a real prospect of a successful appeal against the refusal of planning permission; where the effect of forcing the defendant and his family to leave the site would or might be to cause hardship or danger to the defendant and his family; where there is no or no clear evidence of suitable alternative accommodation for the defendant and his family.

(10) Unless at the time of giving his/her judgment, the judge would be prepared if necessary to contemplate sending the defendant(s) to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. The court would not be prepared to do so without considering all questions of hardship to the defendant and his family including the availability of suitable alternative accommodation if required to move. The House of Lords did not explicitly identify what other factors the court can or should take into account in considering whether it would be prepared to contemplate sending the defendant(s) to prison in the event of a subsequent breach. In my judgment the court can and should take into account all matters which are material in the particular circumstances of the case. These could include the circumstances leading up to and reasons for the actual or anticipated breach of planning law, the defendant(s)’ record of compliance with or defiance of planning law, the extent and gravity of any environmental harm caused or likely to be caused by the breach of planning law sought to be restrained and the prospects of success of any outstanding or proposed application for planning permission or appeal against refusal of planning permission.

(11) In particular the more flagrant and persistent has been the record of ignoring or defying enforcement notices or prosecutions, the greater is likely to be the case for granting an injunction. The less serious and the less persistent such a record has been, the weaker is likely to be the case for granting an injunction.

(12) It is not the function of the Court to second guess or go behind planning decisions already taken by the local planning authority or the Secretary of State on the advice of an inspector.

(13) It is, however, legitimate for the Court when considering whether it is just and convenient to exercise the discretion to grant an injunction and if so when and on what terms to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful.

(14) In such a case the court has the power to decide to adjourn the application for an injunction until after the result of a planning appeal is known. In my judgment it also has the power to suspend any injunction granted until and unless planning permission is refused or an appeal is unsuccessful. Alternatively in an appropriate case in my view the Court can take its conclusion that there is a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction at that time. It may be a factor contributing to a decision that the Court would not currently be prepared to contemplate send the defendant to prison in the event of breach of an injunction; or it may be that the court considers that one of the factors outweighing the detriment to the environment and/or the rule of law inherent in refusing an injunction is the hardship or detriment which might flow from requiring the defendant and his family to leave the site with all the consequent disruption to his family life in circumstances where the outcome of an application for planning permission or an appeal against its refusal might hold him entitled to reside on the site and/or carry on the conduct sought to be restrained.

The Court found that there was a real prospect that the planning appeal would be successful. In addition the Court considered that the personal situation of the occupiers raised real hardship if an injunction was granted. In the Court’s view this was not a ruthless, cynical action. There was a lack of urgency suggested by the previous failure to enforce the notices and the Court found that it would not, on the basis of the evidence, be prepared to send the Defendants to prison on breach of a putative injunction. In view of all of this, the proper course was to exercise the discretion to decline to make an injunction order. An adjournment was considered but rejected as, if the planning appeal was successful there would be no purpose, and if it was not, then:

It may be that circumstances will change in the future, either in relation to issues of hardship or in relation to the availability of suitable alternative accommodation, or in relation to environmental damage or in relation to the planning regime or in some other respect in such a way as to lead the Council to the view that the balance between hardship on the one hand and environmental damage and upholding planning law on the other justifies a further application. In that event the Council would not be prevented by the terms of this judgment or my order from making a renewed application. I do not encourage it to do so. That would be a matter for the Council.

Thanks to Chris Johnson of Community Law Partnership for the nudge.

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Lost by translation

Published
by
NL
on 21/10/2009
in FLW case note, Homeless and Housing law - All
. 2 Comments

Ali v Birmingham City Council [2009] EWCA Civ 1279 (Original note from an Arden Chambers eflash pdf).

Mr Ali, who is Somalian, applied as homeless to Birmingham. At interview he was noted as speaking and understanding English. he was given a leaflet in a number of languages, including Somalian, with details of translation services.

Birmingham accepted a duty and their letter to Mr Ali informed him that he would receive only one offer of suitable accommodation. Further telephone conversations were carried out through an interpreter.

Birmingham then offered a property by letter, stating that this would be the sole offer and setting out review rights. On viewing the property, Mr Ali refused it and, via a Somali community centre, submitted a review request in grounds of suitability. The review held the property was suitable.

Mr Ali appealed to the County Court on grounds that he had not been properly informed of his right to accept an offer of accommodation while seeking a review of its suitability, as required by s.193(7), because the letter was in English, which he could not read, and no translation to Somalian had been provided. The requirement under s.193(7) was to inform the applicant, not merely to notify them, which meant an obligation on the Authority to ensure its communication was in a form the applicant could understand.

The County Court appeal was dismissed. The Court held that ‘inform’ and ‘notify’ were used interchangeably in Part VII Housing Act 1996. As long as reasonable facilities for translation were provided and available from the Local Authority, there was no greater requirement to translate the notification letter.

The Court of Appeal held:
‘Notify’ and ‘inform’ are used somewhat synonymously, with the distinction that ‘notify’ refers to the giving of notice in a document and ‘inform’ relates to the contents of that document. As the County Court had found, as long as reasonable facilities for translation were provided, there was no further routine requirement to translate letters for applicants who did not have english as a first language. Mr Ali had been notified of the available facilities and had not requested a translation of the letter.

Appeal dismissed.

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Long on principle, short on detail

Published
by
NL
on 21/10/2009
in Community care, FLW case note and Housing law - All
. 0 Comments

S (A Child), R (on the application of) v Plymouth City Council [2009] EWHC 1499 (Admin)

Not sure how we missed this one and thanks to the Legal Action housing updates for the elbow to the ribs.

This was a permission hearing on an application for judicial review of Plymouth Council’s handling of a child in need under s.17 Children Act 1989, specifically how accommodation needs were dealt with.

S was an 11 year old child who was autistic and had behavioural difficulties. He lived with his mother and brother. it was not in issue that he was a child in need for the purposes of the Act. The family lived in a two bed flat, which placed severe pressure on his mother and his 6 year old brother.

S.17(6) of the Children Act states:

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.

Assessment of children in need under s.17 is shaped by the 2000 guidance “Framework for the assessment of children in need and their families”, and it is made clear that Local Authorities are to have regard to this guidance and that although not statutory in effect, it should be complied with “unless local circumstances indicate exceptional reasons which justify a variation”.

The document states that a core assessment must be carried out:
“… an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context.” [chapter 3.11]

and the conclusion of an assessment should result in:

• an analysis of the needs of the child and the parenting capacity to respond appropriately to those needs within their family context;
• identification of whether and, if so, where intervention will be required to secure the wellbeing of the child or young person;
• a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review. [chapter 4.1]

Note the emphasis on a ‘realistic plan of action’.

A core assessment had not been carried out when judicial review proceedings were issued. Over the following year (!) prior to this permission hearing, a core assessment was produced by Plymouth. The Claimant maintained that the assessment did not contain a realistic course of action. Amongst issues such as respite care and identification of carers, was the problem of accommodation for the family.

Both Social Services and housing departments accepted that the family required a 3 bed property. The mother’s transfer application had been rised to band B priority from band C in a CBL scheme, but no suitable properties had become available on which the mother’s bid was successful. Private sector accommodation had been raised as an alternative by social services. The mother would lose her secure tenancy and her transfer status, effectively starting from scratch.

There was nothing unlawful about the way her transfer application was dealt with under the allocation scheme. However, Plymouth Social Services’ position on assistance with a private sector tenancy was that they were:

willing to assist [the mother] to secure three-bedroom accommodation in the private rented sector to the extent that they will provide financial assistance by giving her money for a deposit on a property and 1 month’s rent in advance. [The mother] will be entitled to housing benefit to assist her with the rent, but if her housing benefit is less than the contractual rent, the defendants will not fund the shortfall in rent on a continuing basis, because it is likely that she will be re-housed by the housing department, provided she actively pursues her transfer application, particularly if bids for flats and maisonettes and properties in a greater number of areas in Plymouth than she has currently considered.

Held:

34. Initially it seemed to me that what Ms Thornley says in those paragraphs goes as far as Plymouth City Council could reasonably be expected to go. They plainly feel that the mother ought soon to be able to obtain adequate housing through the housing department and, accordingly, have limited their offer of assistance to S to providing a deposit and 1 month’s rent in advance. They are not willing to bridge any gap between housing benefit and actual rent, because they take the view that the mother can adequately re-house herself and her children in council housing. But I have been persuaded by Mr Wise that what Ms Thornley says in those paragraphs does not, in the end, amount to a realistic plan of action, including services to be provided. It does not engage with specifics at all. It does not identify any sample property, or properties, that Plymouth City Council put forward as appropriate for the family in the private market. It does not, accordingly, engage with the actual cost of renting such a property, nor the difference between that cost and the housing benefit to which the mother is, or may be, entitled. In other words, it is long on principle but very short on detail.

35. It does seem to me that the local authority have got to be much more proactive in working together with the mother to see exactly what might be available in the private sector, what it would cost, the extent of housing benefit that the mother can obtain towards that cost and the extent, if any, to which Plymouth City Council ought to, and is willing to, bridge any difference. In short, the alternative of renting in the private sector with financial help from Plymouth City Council needs a great deal more exploration than has so far been done. It is only when Plymouth City Council, working no doubt in co-operation with the mother, have come up with a fully-costed and detailed alternative for renting in the private sector that they can be said to have actually produced a realistic plan of action in relation to accommodation.

Permission granted for JR for a declaration that the core assessments did not yet provide the required realistic course of action. The parties urged to go back to Plymouth and focus on sensible and realistic ways of helping S.

This is useful, albeit only a permission hearing, in focussing on the kind of practical detail and concern a core assessment needs to contain. It is clear that simply identifying possible courses of action and setting a fixed response (e.g. on aid with rent) is not sufficient – the issue is what constitutes a realistic course of action.

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Allocation without Grant

Published
by
J
on 20/10/2009
in Allocation, FLW case note and Housing law - All
. 13 Comments

Birmingham City Council v Qasim and others [2009] EWCA Civ 1080 may come as something as a surprise (at least, it did to me) and has rather a lot to say about the importance of allocation schemes under Pt 6, Housing Act 1996.

Birmingham had an employee who took it upon himself to create false computer entries in the BCC computer system, such that it enabled persons selected by the employee to become tenants of the authority. For example, he would find properties where tenants had recently died and then amend the housing file so that Mr X was shown as the joint tenant of Mrs Y and, hence, Mr X could inherit the tenancy by succession. These actions were carried out unlawfully and outside the allocation scheme (Pt 6, Housing Act 1996). When Birmingham discovered this, they issued possession proceedings against the ocupiers contending:

(a) that Grounds 1 or 5 covered this situation; and / or

(b) that because these tenancies had not been granted in accordance with the allocation scheme, they were void ab initio and, hence, there was no tenancy.

In the county court (noted by us here), one defendant (subsequently supported by the others) applied to strike out the claims. The Judge agreed, holding:

(a) that there was no evidence to support a claim under Grounds 1 or 5 (i.e. there was no evidence of personal wrongdoing by a tenant);

(b) the council could not rely on a public law invalidity argument as it was bound by Islington LBC v Uckac [2006] EWCA Civ 340, the effect of which was that the Grounds for possession were a self-contained code and no residual basis for permission existed.

The council appealed on (b) and contended that there had been an allocation otherwise than in accordance with the scheme published under Pt 6; that this was prohibited by s.167(8), Housing Act 1996 and, accordingly, that the subsequent tenancies were void – Credit Suisse v Allerdale BC [1997] QB 306.

The appeal was dismissed. The Court of Appeal – agreeing with the defendants – held that the power to grant a tenancy is conceptually separate from the duty to allocate in accordance with a published scheme. The power to grant was unfettered and found in Part 2, Housing Act 1985. The duty to allocate was in Pt 6, Housing Act 1996 and was merely about managing the queue of applicants. Any invalidity or illegality in the allocation did not subsequently affect any tenancy which had been granted.

If Parliament had intended illegality in the allocation to go to the validity of the grant, it would have said so in clear terms. It was unlikely that Parliament had intended that an authority could – years after a ‘tenancy’ had been granted – come along and seek possession based on an earlier error in the allocation process.

The remedy for a person aggrieved by an unlawful allocation was to seek to have that allocation quashed on judicial review prior to the grant of the tenancy.

I’m not sure that this is right, and I say this for a number of reasons:

(a) it does seem to drive a horse and coaches through both the statutory priority for certain classes of person contained in Pt 6 and, just as importantly, the exclusionary provisions in s.160A, 1996 Act. So, although a local authority cannot allocate to an ineligible person, they can still grant a tenancy. That is, with respect, a surprising conclusion;

(b) it seems unlikely that another person would ever know that there had been an unlawful allocation and even less likely that they’ll be able to get a quashing order from the Admin Court before the allocation goes on to become a grant;

(c) at a policy level, doesn’t this take all the ‘bite’ out of allocation schemes? What is the sanction for an authority which ignores it? What is the sanction for an employee (or councilor who pressures an employee?) who decides to bypass the policy?

I suspect that we’ve not heard the last of this case.

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Unlawful Eviction Quantum – from Legal Action

Published
by
NL
on 19/10/2009
in FLW case note, Housing law - All and Unlawful eviction and harassment
. 2 Comments

Hunt v Hussain, Epsom County Court 31 July 2009 (LAG housing law updates October 2009)

As ever, the Legal Action housing law updates have some useful cases, this from the October 2009 issue. This is another of the reports on County Court judgments on unlawful eviction and harassment cases that are very useful in assessment of quantum.

Mr & Mrs Hussain were freehold owners of a house. Mrs Hussain granted Mr Hunt an assured shorthold tenancy of a room in May 2003 at £90 pw.

Mr Hunt lost his job and applied for housing benefit. Mrs Hussain told him he would have to leave. Despite a warning from the LA’s Environmental Health Department (?) that a court order would be needed, the Hussains changed the lock and refused to re-admit.

Mr Hunt was street homeless for 3 months, occasionally with friends but mostly sleeping rough. He suffered from asthma, which was exacerbated, and he developed depression and feelings of self-harm. Four years later he was diagnosed as suffering from severe depression, agoraphobia and paranoid ideation. He was unable to work. The psychiatrist found the eviction had generated the detoriation in Mr Hunt’s mental health.

The LA brought a criminal prosecution against Mrs Hussain under S.1 Protection from Eviction Act 1977 (and congratulations to Epsom and Ewell for doing so), resulting in a fine of £300 and costs of £250.

In a civil claim for unlawful eviction and personal injury, judgment in default was entered.

HHJ Reid QC assessed damages as follows:
Unlawful eviction: £125 per day for 65 days. (Somewhat oddly, the Court refused to assess damages over 76 days, apparently on the basis that the tenancy could have lawfully been determined by serving a s.21 notice. Could either Counsel, Robert Latham, or Dambudzo Matiti of Surrey Law Centre, who acted for Mr Hunt, elucidate?).

Personal Injury: £45,000. Awarded in view of the JSB guidelines on damages for psychiatric injury. Also exacerbated asthma. The case fell into the most severe category for psychiatric damage – £35,000 to £74,000. The damages were not at the top end as Mr Hunt had a predisposition to mental health problems and the Court did not accepted the eggshell principle wholly applied.

Special damages: £100 (of £730 claimed)

Interest of £3,453.

Also granted was a freezing injunction restraining Mr Hussain from dealing with two properties in which he still retained a beneficial interest.

An interesting case and a useful reminder to Claimant advisors to fully consider consequential damages, including Personal Injury. There are some odd features, not least the 65 not 76 day decision. It would also be good to know whether the freezing injunction was in terms of Mr Hussain disposing of an interest before a charging order could be obtained on the properties, or in terms of managing let properties.

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Limiting the right to buy (in Scotland)?

Published
by
NL
on 18/10/2009
in Housing law - All, right-to-buy and secure-tenancy
. 0 Comments

The SNP have announced that they intend to abolish the right to buy for all new build council and social housing in Scotland. The policy is intended to safeguard up to 18,000 social homes.

Figures in England show a steep decline in interest in the right to buy and it is hard to see that the last year will have altered that situation. I wonder if something similar may now happen in England and Wales, given that some Councils are building again?

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