Comments on: Gimme shelter

By: NL

NL — Wed, 16 Dec 2009 20:09:01 +0000

If the RSL is a public authority in its housing function (Weaver) then the DDA arguments would apply (although in Garbett there was no claimant advancing such an argument or any evidence that there were those with disabilities involved – may well have been, but no evidence on this an not argued).

If the RSL is not a public authority, then YL v Birmingham City Council may well apply – commissioned service from private company is not a ‘public function’ for the purposes of HRA. So still to play for, frankly.

By: JH

JH — Wed, 16 Dec 2009 18:44:10 +0000

So presumably because the DDA duty is a non-delegable duty [52]on the local authority, claims against RSLs (eg Garbet)could not proceed on simiar DDA arguments used here despite the claimants (sheltered tenants)all being in the same boat?

Or does the fact that local authorities commission resident warden services, through SP, mean they do (in effect)delegate this duty, and ergo such arguments could be used?

Does non-delegable here mean the same as homeless duties performed by a RSL on the councils behalf?

By: James

James — Wed, 16 Dec 2009 14:11:20 +0000

Its now on Bailii.
Poor consultation, and another case of inadequate equality impact assessments. It looks like Barnet were dragged down by Portsmouth though.

By: chief

chief — Wed, 16 Dec 2009 11:40:04 +0000

As far as I can make out the Barnet case is only on Lawtel at the moment. Portsmouth were also JRed as part of the same case.

By: James

James — Wed, 16 Dec 2009 11:26:52 +0000

Agree that this is not particularly significant.
Although, the short shrift given to the wider point of legitimate expectations (77-79) was interesting.
The judicial review against Barnet was successful too, and that seems to have been a differently framed argument, particularly using the DDA argument. Can’t find any transcript for it though.

By: DA

DA — Wed, 16 Dec 2009 09:32:36 +0000

If we were dealing with a Commercial Office Block with 40 tenants with the owner including a reception service as part of the agreement and the owner decided to “consult” and then withdraw the service against the wishes of the tenants I suggest the owner would be facing a breach of contract action pure and simple. The fact that Social Landlords have “weasled” in a Public Law Clause “as long as we “consult” we can do what we want” surely has no place in an Commercial Tenancy Agreement?

By: JS

JS — Wed, 16 Dec 2009 08:55:30 +0000

Definitely wisest to consider the leases first- in long lease cases in particular. In my experience the obligation to provide a resident warden will be unqualified for the obvious reason that it is what attracts buyers to the properties in the first place .

Pointing this out to the RSL which owned and managed the block where my late grandmother’s lived in Essex brought a swift end to their consultation exercise on bringing in a peripatetic service.

By: NL

NL — Wed, 16 Dec 2009 00:17:34 +0000

JH Depends entirely on how it was argued. I don’t think legitimate expectation would work on these facts, so what is the public law ground?

By: J

Tue, 15 Dec 2009 21:24:23 +0000

I don’t think so. The ‘problem’ comes from the fact that the case looks like a private law contract dispute but was framed and argued as a public law dispute.

By: jh

jh — Tue, 15 Dec 2009 15:48:48 +0000

Just a thought from a lay person, interested in, but not involved in the case.

“Mumby LJ was of the view that the only matter before him was the legality of “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). ” and..

“If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out”

If the decision not to replace the resident warden was not related to the impending retirement but to a policy choice of the landlord (and this had been argued) would Mumby LJ have had the same ‘wriggle-room’ to cop out?