Archive for December, 2009

Ending 'Horsham' possessions?

Published
by
NL
on 30/12/2009
in Housing law - All, Mortgage possession and Possession
. 2 Comments

The Ministry of Justice has issued a consultation document on a proposal to require mortgage lenders to obtain a court order or the consent of the borrower before repossessing and selling residential owner-occupied homes. (The consultation document is here).

This is being touted as bringing to an end the Horsham Properties v Clark & Beech [2008] EWHC 2327 (Ch) (our report here) exception to the Adminsitration of Justice 1970 (and 1973) loophole. See, for example the Inside Housing report or the report in yesterday’s (29/12/09) Guardian – not online. However, the proposals only apply to residential properties with residential mortgages.

As readers will recall, Horsham concerned possession of a property occupied by the owners but where the mortgage was buy to let and the occupation was in breach of the mortgage conditions. The proposals wouldn’t affect that situation.

I don’t know if there have been comparable cases involving residential properties, but we haven’t heard of any and neither have the MoJ. So the proposals appear to be to stop something that isn’t happening in response to a case that the proposals wouldn’t stop happening again anyway.

Still, the certainty would be a good thing for residential mortgagors. The consultation closes on 28 March 2010.

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That was the year, that was…

Published
by
NL
on 29/12/2009
in Various (non-housing)
. 14 Comments

But we’re not going to do a ’roundup of the year’ kind of post. It is all searchably there and anyway, we’ve already linked to one (although it is probably subscribers only by now).

Instead, I just wanted to gaze at our collective navel a little and say a few things about the last year on NL. It has been quite a year…

First and foremost, of course, I must thank my illustrious co-bloggers -, in strictly alphabetical order: Chief, Dave, Francis and J. Not only is there the purely practical – without them, this blog wouldn’t have carried on – I simply have to praise their knowledge, insight, elegant styles and sheer commitment. It must be pointed out that they have done this for no reward whatsoever, not even CPD points. And let us not forget, they are mostly pseudonymous, so there is not even a practice building credibility at stake. Frankly amazing.

We’ve decided – those of us who are pseudonymous – to remain so, at least on the blog. It is one thing people finding out by word of mouth who is involved, as has happened; it is quite another turning this into a blog written by people from particular firms or chambers. It would change things too much.

However, I will take this opportunity to dispel some of the wilder rumours that have reached my ears. Nearly Legal – the individual – is not a barrister, let alone a senior one. I am a now 1 year PQE solicitor. Other writers certainly are barristers, and very good ones, but I am fairly confident that none of them would mind if I described them as not (yet) being QCs – again contrary to flattering rumour.

Readership over the last year has gone from strength to strength. Page views over the course of 2009 went from 17,197 to 24,522 per calendar month. At the high point in late November, we had over 26,000 page views a month, which for a specialist housing law blog is really quite a big deal. In addition, subscriptions by email and RSS to each and every post are now at about 560. Of course, we may well have peaked…

Readers come from every element of housing law practice and study: advisors, academics, law centres, other NFPs, RSLs and local authorities, solicitors (tenant and landlord acting) and many and various barristers. Plus we have been told that certain county court and high court judiciary are readers (big waves to the judiciary, assuming that they are actually reading). This extent and breadth of readership make us very happy and, frankly, astonished. I also must thank our commenters, who have provided much useful information, interesting questions, and good reasons to carry on.

Over the last year, I have received a hell of a lot of requests for adverts, paid for text links, or remunerated links, involving would-be advertisers of greater, lesser or no repute. While I would like to recoup my costs for actually running the site, we haven’t carried advertising of this sort and don’t propose to do so. We are not going to give our imprimatur to claims managers, PI jockeys, conveyancing factories and DUI defenders. No aspersions cast on others who do carry ads, but having started ad-free, we feel it is best if we try to remain so. It is our choice entirely, helped by the fact that relevant advertisers for a specialist housing law blog are few and far between.

That said, I must confess I am considering possible ways to try to recover something of the increasing server and bandwidth charges. These aren’t huge but are getting larger. We have gone beyond our bandwidth and content limits quite often lately and may need to change/upgrade servers. I’m toying with a few ideas, but I assure you that these will not include a) begging, b) charging or c) ads on the main pages.

And for the future? We’re not sure yet. I’m toying with a couple of potential additions and some other small changes, but nothing yet certain or large scale. The main work of the blog will carry on. All in all, it has been a very good year for Nearly Legal and I hope you all have been happy with what we have produced. Although frankly whether you have been or not, we intend to carry on in pretty much the same way regardless, because it makes us happy.

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Service charges up, enfranchisement down: some LVT statistics

Published
by
Francis Davey
on 27/12/2009
in Housing law - All and Leasehold and shared ownership
. 0 Comments

As food for reader’s thought as 2009 draws to an end, a quick comment on a recent written answer given to the Shadow Housing minister Grant Shapps. Since many readers’ will be full of seasonal fare I thought some pictures rather than words would be more apt.

Graph of leasehold business in the LVT

Our first picture shows a turnaround in the core leasehold work carried out by the LVT with enfranchisement and lease extension applications down and service charge disputes up. The fall in old LVT work probably stems from the collapse in the housing market and poor availability of credit. I would like to think that better publicity of the service charge jurisdiction has pushed s.27A applications higher, but that may also be due to increasing financial straights in which leaseholders find themselves and a concomitant reluctance to pay anything that is not strictly required.

Graph of market and fair rent applications to the LVT

Our second chart (to the same scale) shows that fair rents determinations still outnumber those for market rents despite the diminishing number of rent act protected tenancies. Even I, well known as a specialist in the odd and obscure, do not see many cases involving such tenancies any more. Despite an overall decline in the number of fair rent cases over 4 years, both series are up on last year. Perhaps also an indication that people fight harder for their money when there is less of it about.

The other jurisdictions carried out by the residential property tribunal service’s tribunals are miniscule by comparison. Even Housing Act 2004 work, which has shown a steady rise, amounts to less than 3% of all cases.

Happy 2010.

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The HRA and precedent

Published
by
Dave
on 23/12/2009
in FLW case note and Housing law - All
. 2 Comments

We’ve been a bit slow on this one, but R v Horncastle [2009] UKSC 14 offers further light on the quarter pounder v royale with cheese debate, which has occupied much of our time this year. J noted that R v Purdy suggested that the UKSC would offer some assistance where a recent judgment was inconsistent with subsequent ECHR judgments (see also Secretary of State for the Home Department v AF (No 3) [2009] 3 WLR 74, cited by Lord Brown in Horncastle at [118], referring to the wonderful sentence of Lord Rodger: ““Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed.”)

Horncastle, however, concerns a rather different situation with potentially more relevance to the ongoing debate about the use of Article 8 as a defence to possession proceedings – the House of Lords in Doherty were not exactly enamoured with the decision in McCann.  So: what should the UKSC do when it disagrees with Strasbourg jurisprudence?

The answer given in Horncastle at para [11] is robust:

The requirement to “take into account” the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court.

I cannot claim any knowledge of hearsay evidence in criminal cases – the subject of Horncastle in which the UKSC basically disagreed with ECHR jurisprudence (and, it is fair to say that “disagreed” is putting it mildly, excoriating is also mild but closer to the way in which the UKSC approached the Strasbourg court’s approach in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1) – but the notion of “valuable dialogue” between courts which fundamentally disagree on basic principles seems a little obtuse to me (I’m just thinking about quarter pounders and royales having a nice chat about the metric system).  In Horncastle, this valuable dialogue was facilitated by the Grand Chamber adjourning the UK government’s request for a reference until the UKSC had pronounced its outcome in Horncastle.  On Article 8 cases, though, we do have a consistent line of ECHR opinions (unlike the hearsay opinions,  according to the UKSC) although we await a Grand Chamber pronouncement; it’s just that “our” judges don’t seem to like them.

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Birmingham Council Gatekeeping, with benefit of transcript

Published
by
NL
on 22/12/2009
in Homeless and Housing law - All
. 13 Comments

Kelly & Mehari v Birmingham CC [2009] EWHC 3240 (Admin) [Not on Bailii yet, available on Lawtel]

Following our note here (and the very helpful comment to it) we’ve got the transcript of the judgment. (In fact I’ve had it for a few days, but it has been hell out there, hell I tell you. And that was just the commute.)

This was a hearing of two joined Judicial Reviews (at the new Birmingham High Court) of Birmingham’s treatment of homeless applicants and provision of interim accommodation under s.188(1) Housing Act 1996.

The Claimants argued that Birmingham had a policy or a procedure designed to avoid their duty under s.188 or that their policy gave rise to a risk that in a significant number of cases interim accommodation would not be secured when it should be.

Birmingham argued that in these cases, it was the mistakes of individuals who had failed to properly follow their procedures that was at issue.

So, was it policy or an inadvertent balls up…

On initial application as homeless to Birmingham, a form had to be filled out:

setting out information with regard to immediate accommodation needs (e.g. Question 1: “Are you able to remain at your current accommodation tonight?”). There are notes within the form. After Question 12 (“HB Form completed?” — of course, a reference to a Housing Benefit Claim Form) there is this: “Note: An emergency request form cannot be submitted until a HB form has been completed”. In Questions 17 and 18 there are seven separate questions relating to risk. After the applicant’s signature there is the following rubric: “Upon completion of the interview, unless the applicant and family are at risk of harm, they should be advised to return to the homeless address whereby a visiting officer will attend the property”: in other words, they are to be sent back “home”. There is a later question for the interviewer, “Balance of probability satisfied: Yes: No” — which appears to be a reference to whether, on the balance of probabilities, the applicant would be safe or at risk if he returned “home”.

If ‘emergency accommodation’ was to be offered, then a second form, headed ‘Homeless Application Form: Housing Act 1996, Part VII’ would be completed and this was the starting point for s.184 enquiries. This second form was headed “This personal data will be held and processed by [the Council] to enable the assessment of need and, in particular, the provision of services for which you may be eligible”.

Now I know what you are thinking, that this already looks like gatekeeeping pure and simple, but let us turn to the facts in the cases.

Kelly
Mr Kelly applied as homeless after having been ejected from the family home by his mother. It was common ground at the JR hearing that he was homeless and in priority need by virtue of being under 25 and suffering from mental health problems. When he applied Mr Kelly was given an ‘emergency accommodation form’ to fill in. The interviewer also filed in a ‘Homeless Application Form – Progress Sheet’. Birmingham relied on this as showing s.184 inquiries had begun, but what the ’sheet’ said was:

App suffers with ADHD, has provided a couple of letters which are from ‘05/’06. States what medication he was on, and how severe they thought his condition was. They felt his behaviour was not a result of having a mental illness, and his behaviour was the result of low intelligence. Contacted Learning Difficulties Team. They advised 2066 was last involvement had with him, and confirmed he was on medication at the time. Contacted Dr Kenyon, who confirmed app has no priority need. Discussed circumstances, nothing to suggest he would be vulnerable. Have contacted app and spoke to his mum, and advised he has no priority need. Advised of direct access hostel. Discussed with Colette. TA refused.

Mr Kelly was sent away. Birmingham argued that this constituted s.184 inquiries but that the officer had been in error in not providing written reasons and ‘the substantive decision as to duty owed to the applicant was taken before the enquiry was complete — and in particular before the homeless interview’. So the decision was wrong, nay unlawful, but this amounted to individual error by ‘Mr Clarke’, the officer.

But that wasn’t the only ‘individual error’ in this case.

At the bottom of the Progress Sheet of 11 September, to which I have referred, Mr Clarke confirmed the decision he had made, namely “T.a. [i.e. temporary accommodation] refused”. His decision cannot be categorised as a defective Section 184 decision following an inadequate enquiry. It was a decision not to afford Mr Kelly temporary or interim accommodation under Section 188.

Mr Clarke did not take that decision alone. He did so after discussing it with a colleague, “Collette”. But it does not end there. On 15 September, the solicitor for Mr Kelly (Miss Bi) telephoned the Council and spoke to Caroline Darwin. She, too, was in the Council’s Homeless Team. She was an experienced member of that team. Miss Darwin prepared a further Progress Sheet recording the conversation. That makes clear that the decision that had been made on 11 September was that it was interim accommodation that had been refused. Miss Bi said that the Council were under a duty temporarily to house Mr Kelly pending the completion of their Section 184 enquiries: Miss Darwin did not agree that that was the case. [...] Later that day Miss Darwin sent a fax to Miss Bi, sending “all documents pertaining to Mr Neville Kelly’s Temporary Accommodation request”, reiterating the nature of the decision taken by Mr Clarke.

At hearing, Birmingham also accepted there was an error of law in this decision too, but it was also, yet another ‘individual error’ and nothing to do with a policy.

Unfortunately for Birmingham, this didn’t wash.

I cannot accept the premise upon which those submissions were made, namely that Mr Clarke’s decision was a Section 184 decision that was defective — and unlawful — in the respects identified by Miss Hodgson [for Birmingham]. It was clearly not such a decision.

There is no doubt that Mr Clarke considered and decided Mr Kelly’s application as one for interim accommodation. Unfortunately, he did so without any apparent appreciation of Section 188 or of the obligations which that statutory provision imposes on the Council. He considered whether Mr Kelly had a priority need for accommodation, not whether there was reason to believe that he did so. The latter is a lower test, as Paragraph 6.5 of the Homelessness Code of Guidance reminds authorities. [...] Had he done so, on the basis of Mr Kelly’s application and documents he produced in support, the only proper conclusion to which he could have come is that there was reason to believe that Mr Kelly may be homeless and in priority need of accommodation. That would have triggered the Section 188 duty to provide interim accommodation, until the Section 184 enquiry had run its course and the Council had informed Mr Kelly of the resultant duty to house, if any, that it considered it owed to him

Oh dear, but so far at least, Birmingham still had an outside chance of arguing it was cock-up and a regrettable mistake.

Mehari
There is a long history of refused applications in this matter, but at issue was Mr Mehari’s application when he and his family were street homeless after their landlord had taken the keys back. He was initially told that because he had handed the keys back he wold have to come back the next day (!).

The following day Mr Mehari sought legal advice, and, following a letter, an application was made on the evening of 17 September to the duty judge (Sweeney J). He ordered the Council to provide accommodation until determination of the court application. That accommodation was given by the Council for one night, but then withdrawn, until His Honour Judge Purle QC reissued the order with a penal notice attached.* Mr Mehari has subsequently been offered accommodation by the Council following the completion of Section 184 enquiries.

At the JR hearing, Birmingham accepted there was reason to believe Mr H was homeless when he first approached them and that it erred in law by sending him away. The officer was right in saying that at 6.20 pm they had no cover for dealing with applications but Birmingham accepted this was an unlawful failure of its practice.

However, the ‘Emergency Accommodation Request Form’ completed in this case stated:

Upon completion of the interview, unless the applicant and family are at risk of harm, they should be advised to return to the homeless address whereby a visiting officer will attend the property

This was clearly an instruction and one followed by the interviewing officer.

There is certainly nothing to suggest in the Progress Sheet or Emergency Accommodation Request form that she completed that she had the “reason to believe” criteria of Section 188 in mind, let alone applied them, in coming to her decision

There was other similar evidence in the case of JI, whose case was not pursued, but the evidence was considered because both parties relied on the facts. Odd, because in this case Birmingham purported to discharge the s.188 duty prior to the end of s.184 enquiries and decision.

Held – and I make no apologies for quoting at length:

In regard to Mr Kelly:

Mr Clarke [the initial decision maker] simply did not engage with the Section 188 criteria at all. He was not alone, as two of his colleagues equally failed to do so; and the Council’s response to this claim evinced no sensitivity to, or real comprehension of, the criteria that ought to have been applied, at least until Miss Hodgson’s [counsel for Brimingham] valiant effort to rationalise the decision-making process embarked upon by Mr Clarke ex post facto. I do not accept the basis of the defence, namely that the Council’s procedures in this case operated properly, but Mr Clarke individually failed. There is strong evidence in this case of a system failure.

Overall:

of the many Homelessness and Temporary Accommodation Officers involved with the three cases — by my calculation, eight — none refers to Section 188 or gives any indication that they are applying the Section 188 criteria in considering whether an applicant for housing should be afforded interim accommodation pending the outcome of the section 184 enquiries. The Emergency Accommodation Request Forms neither refer to Section 188 nor the criteria of that statutory provision; and indicate that, once the initial interview is over, the applicant is to be “sent home” (i.e. advised to go home) unless he would be at risk of harm there.

Nor does the other material in evidence aid the Council. The instruction note sent to Homeless Officers on 13 February 2007, after the Aweys judgment, makes no reference to the correct approach to the discharge of the Section 188 obligation. The material from and about St Basils refers to housing options, but not to an applicant’s rights (and the Council’s corresponding obligations) under Section 188. Similarly the Council’s own leaflets, “Housing Options: Do you need help in finding a home?” and “Homeless?” make no reference — unless the reference to “other options” being available refers to interim accommodation being under Section 188.

None of the officers purported to apply the Section 188 criteria. None of the Council’s documents explained that they should do so, nor did their external documents explain or suggest to applicants that those criteria would be applied. The Section 188 duty to afford interim accommodation pending the conclusion of enquiries under Section 184 is part of a comprehensive and coherent statutory scheme: but the Council treated what they called the application for “emergency accommodation” as a discrete and separate exercise, divorced from the substantive housing application. There is certainly some evidence that housing applications are not registered until after the initial approach, and even as late as the housing interview: but I do not have to make findings in that specific regard. I am satisfied that, far from the errors in these cases being of individuals who went outside the Council’s practice and procedures, the relevant officers were following the practice and procedure they were encouraged to follow by the Council themselves.

the claimants are each entitled to a declaration that the Defendant Council acted unlawfully in failing to apply the statutory criteria of Section 188 to the issue of whether they should secure that accommodation was available for the Claimant’s occupation pending a decision as to the duty (if any) owed to him under the provisions of Part 7 of the 1996 Act.

Naughty, naughty, NAUGHTY Birmingham. Not only for gatekeeeping, but for then attempting to blame the individual officers who were, after all, only following the policy and the procedure laid out in Birmingham’s own forms.

The message to Birmingham’s homeless officers appears to be clear. Far far better that you appear to have individually screwed up than our policy faces a challenge. New jobs are easy to come by, after all.

Hopefully the outcome from this case will be used elsewhere, although it shouldn’t need repeating, again – the s.188 duty kicks in on first approach if the ‘low threshold’ of ‘have reason to believe may be homeless’ is met. It is no good sending them away if they aren’t in ‘risk of harm’ by insisting that they return whence they came. Oh and yes, an application is made when the person presents to the LA, not when they have been permitted to fill in the relevant form.

Congratulations to CLP and counsel Mr Nabi, but am I alone in being astonished that a) Birmingham had such an unsophisticated gate-keeping policy and b) they thought they had a chance of success on the individual cock up defence, given the documents?

* I think this is suitable rejoinder to Collins J’s view here that penal notices are unnecessary against local authorities. With respect, Collins J is quite simply wrong.

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Care homes, consultation and the DDA

Published
by
NL
on 22/12/2009
in Community care, FLW case note and Housing law - All
. 2 Comments

Boyejo & Ors, R (on the application of) v Barnet London Borough Council [2009] EWHC 3261 (Admin)

This was the conjoined hearing of an application for Judicial Review of both Barnet and Portsmouth Councils, both JRs bought by Yvonne Hossack and here represented by Stephen Knafler. It makes a distinct contrast and counterpoint to R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [our note here]. It also makes important findings for anyone dealing with local authority policy or service provision decisions affecting people with disabilities. Apologies for the lengthy note, but detail is unavoidable…

Again, the issue was the withdrawal of resident warden services in sheltered housing schemes. Both Portsmouth and Barnet sought to replace sleep in or resident warden services with mobile services. Judicial reviews of these decision were joined by the Court. By the time the matters came to hearing the Claimant’s grounds against Barnet were:

First, it is submitted that in reaching the decision in question Barnet failed to fulfill its statutory duty under section 49A(1) of the [Disability Discrimination Act 1995] to have due regard to the six needs there set out, each of which identifies a particular goal the achievement of which would further the overall aim of the Act to eliminate discrimination and harassment of disabled persons and to promote equality of opportunity for them in society. Secondly, it is submitted, Barnet failed to follow its own Equality Scheme 2007/8-2010/11, adopted to comply with The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (the Regulations) made under the Act, because it did not sufficiently involve disabled persons or groups representing their interests in the decision making process. The final submission is that Barnet failed to follow the statutory code of practice called The Duty to Promote Disability Equality: Statutory Code of Practice (the Code) made by the Disability Rights Commission (now named the Equality and Human Rights Commission and to which I shall refer as the Commission) under section 53A(1C) of the Act, in respect of such involvement or the assessment of the impact of the proposals on disabled persons.

Against Portsmouth, the Claimant argued that ‘a preliminary impact assessment in that case carried out by a policy development manager in the Housing Service, which concluded that the proposed changes would or could have no adverse effect or impact on members of equality groups including disability groups’, was in breach of the statutory duty or alternatively was Wednesbury unreasonable.

Both Portsmouth and Barnet argued that they had complied with their statutory duty, with Barnet further arguing that that it ‘carried out a robust consultation exercise with residents and interested groups, including those representing the interests of disabled persons. Finally, it says that there was no duty to carry out a full equality impact assessment and that the assessment which was carried out was adequate.’

S.49 provides that:
“[49A General Duty.]
[(1) Every public authority shall in carrying out its functions have due regard to-
a) the need to eliminate discrimination that is unlawful under this Act;
b) the need to eliminate harassment of disabled persons that is related to their disabilities;
c) the need to promote equality of opportunity between disabled persons and other persons;
d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
e) the need to promote positive attitudes towards disabled persons, and
f) the need to encourage participation by disabled persons in public life."

[...]
[49D Power to impose specific duties]
[(1) The Secretary of State may by regulations impose on a public authority, other than a relevant Scottish authority or a cross-border authority, such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1).."

The s.49D power was used to bring in the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 in 2005.

Further, Barnet and Portsmouth were under a duty to consider the Duty to Promote Disability Equality: Statutory Code of Practice produced by the Disability Rights Commission, which included guidance that an impact assessment should be carried out. The recommendations of the Code are non-binding, but regard must be had to it.

The Court considered the procedures adopted by Barnet and Portsmouth at some length. In January 2009, Barnet, seeking to reduce spend on support for sheltered housing by £950,000 had embarked on a consultation which revealed that:

(88%) of those responding felt that sheltered housing residents would be disadvantaged if current services were replaced by the new proposed floating support services. The five most frequently made points were: floating support would not meet the needs of residents; current levels of support would be reduced, peace of mind would be adversely affected; support would not be available as and when needed; and the new service would be impersonal.

Barnet had disbanded its Disability Panel set up under the DES and the replacement Disability Equality Advisory Group had only had 3 members and was defunct at this point. Two senior adult services managers drafted an equality impact assessment in 3 pages, which included:

11. Is there evidence or any other reason to suggest that it could have a different effect or adverse impact on any section of the community? Or more specifically, one or more of the six equality strands?

No. No adverse impact, subject to the majority of existing funding being available for re-investment.

No figures were available on how many people likely to be affected were disabled. The report for Council (and recall that none of this had had any input from a Disability panel or advisory group) stated:

4.2 The key risks identified in the consultation are those relating to tenants' health and welfare, in particular, the most vulnerable tenants, and the related key risk of increases in social care spending. The preferred option (option 3) would best address the risks identified through the public consultation of changes to sheltered housing. There are a number of complexities to implementing the preferred option and it will be necessary to work closely with sheltered housing providers and tenants in planning and bedding down new service provision to mitigate these risks further.
-----
5 EQUALITIES AND DIVERSITY ISSUES
5.1 The Equality Impact Assessment indicates that the preferred service option would promote greater diversity in provision as support will be available to people living in their own homes. The council's 2006 review of sheltered housing in the borough found BME groups represented only 7% of sheltered housing tenants, just half the census rate. In contrast, analysis of floating support usage in Barnet shows 19% of older people entering services were from BME groups. This inequality is reinforced by the current distribution of expenditure on Supporting People services for older people with over 60% of investment directed to services for sheltered housing tenants who make up less than 3% of the borough's older residents. The proposal is to commission services that are needs-led and available to all, unlike current sheltered housing provision that discriminates against those populations who are less likely to wish to choose this housing tenure.

Note the complete lack of any specific address to disability equality. Option 3 was the 'mobile warden' option raised in the consultation and aimed to save £400.000.

In Portsmouth, where cost savings of roughly 50% were sought, a survey of 66 random sheltered housing residents in May 2009 produced the result:

45 said that a night time response was important. Personal safety and security was mentioned by 28 residents and speed of response by 22 residents

Portsmouth soon after wrote to the residents to tell them that 'European working time directives, the Council's Local Pay Review and reductions in the Government's Supporting People funding for sheltered housing' meant that changes were necessary to 'minimize charges to residents'. Meetings were arranged to 'specifically talk about the changes'. This was described by Portsmouth as a 'consultation'.

An equality impact assessment form was filled out by a Policy Assessment Manager, who had apparently 'undergone training on equality issues and attends Portsmouth Fairness and Equality Group'. Her recommendation was that no full assessment needed to be carried out because:

One of the main concerns raised by a number of residents was the perceived reduction in security. Rather than have someone asleep on the premises from 22.00pm until 09.00am, there will be a roaming team covering all the seven schemes. Although initially this seems like a reduction in cover, in reality the change will lead to a more responsive service. Currently one sleeping member of staff may be hard to wake and some residents may not wish to wake them. Although the roaming team could not be at each scheme physically for the whole night they will make regular checks (up to three or four per night). In addition to this, they will know about any residents who have night time habits, and the day team will update them of any particular issues that may have occurred prior to the night service.

The report recommending the changes to the housing executive committee of the Council that was to approve the changes stated that, following consultation, two objections to the proposed scheme had been received from residents and that an equalities impact assessment showed 'that the service changes will continue to provide a fair and accessible service to all our residents.'

Held

On the claimed failure to have regard to the s.49A(1) duty:

The claimants alleged a failure to have regard to the duty, particularly (d) to take account of a disabled persons' disabilities, even if that means 'more favourable' treatment, and (f) to encourage participation in public life.

Neither decision had expressly addressed the Act or its requirements. Following R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) and R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), there was no requirement to have specific reference to the Act or the Section. Howvever, ‘what is required is that the duty is exercised in substance, with rigour and an open mind.’

It is not the case that the Claimant’s must show an absence of due regard in the sense of Wednesbury unreasonableness, R (Meany & Others) v Harlow District Council [2009] EWHC 559 (Admin) applied. While the Court was prepared to accept that ‘regard was had in the preparation of the respective reports in each case by officers who had relevant training and experience and say that they had the duty in mind’, there was a failure ‘to bring the duties adequately to the attention of the decision makers in making these particular decisions’.

Further, such awareness as they may have been did not amount to a substantial, rigorous and open minded approach. There may be some references to disabilities in the reports and documents, but nothing to show that ‘due regard was had, for example, to the need to take account of disabled persons’ disabilities even where that involves treating disabled people more favourably than other persons’.

Portsmouth’s argument that there was no need to raise these issues with the decision makers where there was no impact on disabled persons does not sit with the note that these were radical changes in the impact assessment that was carried out, nor the results of their information gathering, which raised the time difference in response for a warden as likely to have a significant impact on peace of mind of residents. Regard must be had to such fears in assessing impact. The evidence was that the impact would be more than minor, meaning that the s.49A(1) duty should have been put before the decision-makers.

Neither authority in my judgment had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others. References in the documentation before the decision makers in each case to disabilities or to rights of equality do not fulfil the requirement of such recognition. Nor does a general awareness amongst officers or decision-makers of the duty under section 49A(1). In my judgment, it follows that in both cases there has been a failure to comply with that duty and in particular sub-section (d). That alone is sufficient to vitiate each of the decisions.


On consultation and involvement
The Claimants argued for a duty to consult,, breached here, a legitimate expectation raised by DES that disabled people would be involved in decisions affecting them, citing R v Devon County Council ex parte Baker [1995] 1 All ER 73. Portsmouth denied that any such duty arose, but the representations of the DES in both cases did give rise to a legitimate expectation of consultation, so a duty arose.

A consultation must be carried out properly, ‘ it must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. There must also be adequate time for such a response’.

Barnet’s consultation met this requirement. Portsmouth’s quite simply didn’t. Its purported consultation letter was providing information on a planned change, not seeking views. No alternatives were raised or considered and the concerns of residents ignored, despite the known results of the May 2009 survey.

However, there was no breach of a legitimate expectation raised by DES that consultation would be through a particular process. There was no such process specified by DES.

As for the Code, the court in Brown at paragraphs 119 and 120 accepted three propositions as to its effect. Firstly, a public authority must take it into account when considering disability issues. If it decides to depart from it cogent reasons must be given and they must be convincing. There are however no higher positive duties to comply with the code. Secondly, if a breach of a general duty under section 49A(1) is alleged and it appears to the court that relevant guidance given by the Code has not been followed without cogent reason, then that may be a powerful factor which leads the court to conclude that there is a breach of statutory duty. Thirdly, it is for the public authority to explain clearly and convincingly the reason for the lapse.

It is clear that the involvement of disabled persons envisaged by the Code in decisions affecting them goes beyond mere consultation. Applying those propositions in these cases, in my judgment for the reasons given above Barnet involved disabled persons in its decision in a substantive way, but Portsmouth did not. For the reasons given in paragraphs 58, 59 and 63 above, each of those authorities however in my judgment failed to adopt an approach to mainstream disability equality in the decision challenged and in that regard there is a breach of Code which is a factor supporting the conclusion that each is in breach of its statutory duty.

On Impact Assessments
The Claimants did not pursue criticisms of the failure to carry out full impact assessments.

However, the criticisms that the officers who carried out the impact assessments came to Wednesbury unreasonable conclusions were justified in the case of Portsmouth, for the reasons given above. Barnet’s impact assessment posed the question whether the proposed changes ‘could have a different or adverse impact on any of what were referred to as the equality strands, including disability’. The answer did not deal with the issue and was therefore Wednesbury unreasonable.

Remedy
The decisions were quashed in each case and the matter to be reconsidered. it was not for the court to express a view as to the outcome of that reconsideration.

This is a long note, but there is a lot in this judgment, in particular on the conjoined effect of the DDA, the 2005 Regulations and the ‘Statutory Code’. Anyone involved in making or contesting local authority policy and service provision decisions likely to have an impact on people with disabilities should look at this case very closely.

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How late did you leave it?

Published
by
J
on 19/12/2009
in ASB and FLW case note
. 1 Comment

Not a post about Christmas shopping, (which is all done, thanks to Amazon) but about delays in lodging appeals against ASBOs and the case of R (Birmingham CC) v Birmingham Crown Court; R (South Gloucestershire DC) v Bristol Crown Court [2009] EWHC 3329 (Admin).

When a Magistrates’ court makes a stand alone ASBO (s.1(1), Crime and Disorder Act 1998), appeal (by way of re-hearing) is to the Crown Court. Neither the CPR nor the Criminal Procedure Rules govern such applications, rather, they are dealt with by the Crown Court Rules 1982. Those rules require that notice of any appeal be lodged with the Crown Court within 21 days of the decision under appeal, although the court has power to extend that time. An application to extend time does not (rather surprisingly) have to be served on the respondent to the appeal.

In the Birmingham case, RR sought to appeal his ASBO some ten months after it was made and only after he was convicted for breaching the terms of the ASBO. He suggested that he had been unaware of the ASBO trial (which was untrue, as he had been personally served with both the interim and final ASBO). The judge granted permission to appeal out of time on the papers. BCC questioned this, noting both the lengthy delay and taking issue with the suggestion that RR had not known about the ASBO trial.

A different Judge listed a hearing to permit BCC to make representations and, at that hearing, the original judge who had granted permission out of time confirmed his decision. Even though the court had been misled by the suggestion that RR had not known of the ASBO trial, it was still appropriate to grant permission to appeal out of time.

In the South Gloucestershire case, AW and NW sought to appeal some six weeks out of time. When the council questioned these decisions, it was informed that the judge was “not prepared to revisit” the decision and that the court did not “have to show how it made its decision.”

Both authorities issued procedings for judicial review of the respective Crown courts.

The claims were dismissed. It was important not to treat the 21 day rule as an unimportant formality and an appellant had to explain why they were appealing out of time. The court should also have regard to the problems inherent in a re-hearing, both in terms of deterioration of the memory of witnesses and the additonal costs to a public authority. Whatever decision is reached, the judge must give adequate reasons for his decision.

It was significant in both cases that the appellants were teenagers. Courts were well aware that even unproblematic teenagers did not always do what was in their best interests at the right time. In addition, an ASBO was a serious remedy, particularly when made against younger persons.

In the Birmingham case, it was entirely possible that RR had not fully appreciated the importance of the ASBO being made against him. At the material time he had been arrested for serious drugs offences and was suspected of involvement in an attempted murder. The ASBO may not have been upper-most in his mind. The judge had been wrong, however, not to consider more fully (or at all) the merits of the proposed appeal. The prospect of success was clearly material to whether or not to grant permission.

However, the defect had been cured once the question of leave was revisited at the oral hearing. That hearing had gone on for some 75 minutes and had involved BCC making submissions. In those circumstances, it could not be said that the decision was unreasonable or irrational.

In the South Gloucestershire case, the judge had been given adequate information on which to base his decision. The problem was that he did not give adequate reasons. That was not, however, a sufficient basis to set aside his decision.

However, for the future, appellants should provide details as to the merits of the appal in their grounds of appeal and give reasons for delay in applying. They should also, if possible, address the question of prejudice to the proposed respondent. Consideration should also be given to amending the 1982 rules so as to require such an application to be made on notice to the proposed respondent.

I’m not entirely happy with this as it seems to me that both authorities were treated quite badly here. There is an easy solution of course – simply amend CPR 2.1 so as to make it apply to the Magistrates and Crown Courts in their civil capacity. Perhaps I should mention that in my letter to Santa…

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Family allocations

Published
by
Dave
on 18/12/2009
in Allocation and FLW case note
. 0 Comments

Now, personally, I intend to chuck my kids out as soon as possible and return to “normal”.  But, for Mrs Ariemuguvbe, this was not possible because her children were subject to immigration status and had no recourse to public funds (no doubt, they didn’t want to leave either).  The issue for the Court of Appeal in Ariemuguvbe v Islington LBC (for our discussion of the High Court decision, see here) was whether Islington should allocate Mrs Ariemuguvbe, her husband, her five children (aged 22, 24, 27, 29, 31) and three grandchildren (aged 11 months, 1 and 2) an appropriately sized property.  They are currently living in a three bedroomed property managed by a housing association.  Put another way, what was Mrs Ariemuguvbe’s household for the purposes of Islington’s allocation scheme.  Islington’s policy was a rather old-fashioned beast – a points-based scheme devised in 2007 – which required Islington to take into account the needs of all individuals in the applicant’s household. But they had refused to take account of the adult children because they were adult and had no recourse to public funds (and, if allocated accommodation by Islington, they would have had recourse to public funds).

There were two broad issues considered by the Court.  First, was the immigration status of the children irrelevant for the purposes of Part VI, given that the children were not at risk of imminent removal?  Second, could the children be considered to be part of Mrs Ariemuguvbe’s household?  The Court of Appeal (Smith LJ giving the leading judgment) held against Mrs Ariemuguvbe on both points.

As regards the first point, Counsel for Mrs Ariemuguvbe relied on the judgment of Collins J in R(Kimvono) v Tower Hamlets LBC [2001] 33 HLR 239 at [23], where it was suggested that the applicant’s children’s immigration status was irrelevant for the purposes of the performance of Part VI duties and could not be taken into account.  That proposition was effectively trumped by Terry Gallivan, Counsel for Islington, who relied on the contrary proposition in Akinbolu v Hackney LBC (1997) 29 HLR 259, 269 as well as that old chestnut R v Sec of State for the Environment  ex p Tower Hamlets LBC [1993] QB 632, 643, neither of which had been cited to Collins J.  In Akinbolu, the CA had said:

The application of the policy by a housing authority to refuse to provide public sector housing to applicants who are illegal immigrants or overstayers could not be said to be outside the proper exercise of its powers under Part II (see by way of analogy Eastleigh BC v Betts [1983] 2 AC 613). In the present case the immigration status of the appellant might well have caused this housing authority, with knowledge of the facts, not to offer the appellant a tenancy.

The Court of Appeal here limited Collins J’s judgment in Kimvono to its facts and made clear that Collins J would not have made the point that he did had the Akinbolu and Tower Hamlets cases been cited to him.  Although Parliament had subsequently amended the immigration provisions of Part VI, what the amendment did was to cordon off those areas where there was no discretion and identify the areas where the Act provides very broad discretion: “Thus the respondent was entitled to take into account the fact that the appellant’s five adult children would not be entitled, if they had applied for accommodation in their own right, to be provided with accommodation by the respondent” (at [22]).

On the second issue, the Court made a number of important points about the way allocations schemes should be read and also the type of information they should contain.  On the former, “… since this is a local authority housing allocation scheme and not an enactment, it has to be read in a practical, common sense, and not in a legalistic way” (at [24])(having just argued to the contrary myself, that puts me in a spot of bother, but there we go).  Schemes should not be read rigidly and this one did not say that points would be awarded for every individual in the household.  It did not follow that the adult children, even if they were part of their mother’s household, had a need to live in the same accommodation as their mother.  Furthermore:

Turning secondly to the legal status of the scheme, since it is only a local authority’s housing allocation scheme and does not purport to be a comprehensive statement of the general law, it does not have to state the obvious: that is to say that the needs of all individuals in an applicant’s household will be taken into account by the respondent only insofar as it would be lawful and/or not contrary to wider public policy considerations for the respondent to meet those needs. If meeting a need of a particular individual would result in an unlawful recourse to public funds, then a local housing authority is entitled — even if it is not bound — to say that that need will not, as a matter of discretion, be taken into account when points are being awarded. ([26])

These points were repeated by Lord Neuberger MR in his short judgment (at [31]).  Now, we know from Lin and others that schemes do need to give the principles on which allocations and prioritisation are based, but when are these “obvious” and, I suppose, “not obvious”.  As NL and I noted, in relation to R (Van Boolen) v London Borough of Barking & Dagenham [2009] EWHC 2196 (Admin) (links to NL’s note), there is a bubbling issue about the extent to which allocations policies need to set out all their terms; it’d be interesting to note whether this issue was canvassed before the CA in this case (hint, hint).

The children were able to lead independent lives and should have been able to make their own housing arrangements  (although those independent lives and housing arrangements were rather dependent on their immigration status).  As Smith LJ put it, subsequent event made clear they were able to lead independent lives as “… both of the adult sons have left the property, one being returned to Nigeria, the other to live in his own home with his new wife” ([29]).  Hmm.

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They do things differently over there

Published
by
J
on 18/12/2009
in FLW case note and Succession
. 0 Comments

Rodriguez v (1) Minister of Housing (2) Housing Allocation Committee [2009] UKPC 52 is perhaps most remarkable for needing to get as far as the Privy Council before a sensible decision was made.

The second respondent was a statutory body responsible for the allocation of social housing in Gibraltar. It had an unwritten and unpublished policy that it would only grant joint tenancies to (a) married couples or (b) unmarried couples who lived together with a child of which they were both the biological parents. If you can see problems with this policy then you’re not alone.

The appellant was a tenant of the second respondent. She had been in a same-sex relationship for 21 years and wanted to change her tenancy into a joint tenancy with her partner. She applied to the second respondent to this end and, given their policy, was refused.

She issued proceedings in the Supreme Court of Gibraltar arguing inter alia that the policy amounted to unlawful discrimination. Her claim was dismissed in the Supreme Court of Gibraltar and in the Court of Appeal of Gibraltar on the basis that there was no discrimination against homosexuals as it applied to all unmarried persons who didn’t have children.

The Privy Council was having none of this. In a rather robust judgment they pointed out that, in addition to the considerable public law problems that flowed from having an unwritten and unpublished policy, homosexual couples could never come within the scope of this policy as they couldn’t marry and couldn’t both be the biological parents of a child.It was impossible to justify this discrimination as there was no suggestion that it was rationally connected to any legitimate purpose.

So there. Entirely right.

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Physical violence only

Published
by
NL
on 17/12/2009
in FLW case note, Homeless and Housing law - All
. 5 Comments

Yemshaw v Hounslow LBC (2009) CA (Civ Div) 15/12/2009 [only as Lawtel note so far]

This was an appeal to the Court of Appeal from a s.202 appeal on the issue of what ‘violence’ in s.177(1) Housing Act 1996 meant. S.177(1) provides that it is not reasonable to remain in accommodation where the person has been subject to violence or the threat of violence.

Ms Y claimed that she had to abandon the family home with her children because of her husband’s abusive behaviour. She stated that, although her husband had not physically assaulted her, she had been subjected to emotional, psychological and financial abuse. Housnlow found that this was not sufficient to amount to violence under s.177(1) and that it as therefore reasonable for her to remain. This was upheld on review and appeal, following Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404.

At the Court of Appeal, with the Secretary of State for Communities and Local Government intervening, Ms Y argued that Danesh had been decided in view of the Homelessness Code of Guidance for Local Authorities 2002, which supported the definition of violence as involving physical contact. However, the 2006 guidance widened the scope of violence to include other non-physical forms of abuse. The Secretary of State supported this view. Ms Y argued that the Court had a statutory duty to consider the Guidance and on that basis, Danesh would have been decided differently today. A more flexible approach to the definition of the term by the courts was consistent with a purposive approach to social legislation designed to reflect society’s changing values.

Held:

Danesh was not decided per incuriam.

Y overstated the importance of the codes. While the court was obliged to have regard to them under s.182 Housing Act 1996, they were no more than persuasive authority. Nothing in s.182 or the Act meant that ‘violence’ had the meaning that the Secretary of State may ascribe to it from time to time.

If the Secretary of State wished to introduce new circumstances that would mean it was not reasonable to remain, there was a mechanism in s.177(3) for doing so. As this mechanism existed, the court should be hesitant in accepting that the meaning of a word had changed over time.

Continuing to follow Danesh to define violence as physical abuse would not stultify social attitudes to domestic violence.

A wider definition would in any event lead to practical difficulties for Local Authorities, who would have to make subjective judgments on applicant’s circumstances, which would be inconsistent with the straightforward requirement under s.177(1).

I wonder if we will see the s.177(3) mechanism exercised soon? I’m not going to hold my breath.

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