Author Archive for chief

Each had a wooden horse

Published
by
chief
on 29/11/2009
in Community care, FLW case note, Homeless and Housing law - All
. 1 Comment

R (A) v Croydon & R (M) v Lambeth UKSC [2009] 8

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

  1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
  2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
  3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(10):

For the purposes of this Part a child shall be taken to be in need if—
(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c)  he is disabled,
and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

For the purposes of this Part a child shall be taken to be in need if—

(a)   he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b)   his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)  he is disabled,

and “family” , in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Section 20(1):

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. What would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

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Child in Need, Indeed

Published
by
chief
on 26/11/2009
in Community care, Homeless and Housing law - All
. 2 Comments

The Supreme Court has handed down judgment in the case of R (A) v Croydon and R (M) v Lambeth [2009] UKSC 8.  This is an important decision about the duty of LAs under s.20(1) of the Children Act 1989 to “provide accommodation for any child in need within their area”.  We will look at this judgment in more detail soon [edit: see here], but for now what you need to know is:

  1. The courts can review whether a person is a “child” for the purposes of the Children Act 1989, this is a separate question to whether they are “in need”;
  2. Ordinary domestic judicial review can be adapted to deal with this where necessary;
  3. If s.20(1) does give rise to a “civil right” for Art 6 purposes it is close to the boundary of that concept (per Baroness Hale); or
  4. The duty of a LA under s.20(1) does not give rise to a “civil right” (per Lord Hope);
  5. If it is a civil right conventional judicial review is enough to comply with Art 6.

The appeal was therefore allowed.  Points 3, 4 and 5 are obiter.

Our report on the Court of Appeal decision is here.

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Deep (Equality) Impact

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

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

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

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

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

Hammersmith and Fulham – home care services

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

Equality Duties

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

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

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

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

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

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

Comment

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

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

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

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Changing Horses Midstream

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

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

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

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

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

Wall and Aikens LLJ agreed.

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Outstanding and Relevant

Published
by
chief
on 10/08/2009
in FLW case note, Housing law - All and right-to-buy
. 1 Comment

Scinto v London Borough of Newham [2009] EWCA Civ 837 is an appeal from Bow County Court on whether the tenant was still entitled to exercise her right to buy on terms first set out in December 1999.

Miss Scinto initiated the right to buy process in September 1999.  In December 1999 Newham sent an offer notice addressed to both Miss Scinto and her son detailing the offer price and the statutory discount that had been applied.  The offer notice also identified some structural defects.

In September 2000 Miss Scinto’s solicitors sent a surveyor’s report, identifying some serious structural problems, to Newham.  They told Newham that without extensive repair works she would not be able to get a mortgage and therefore asked that the right to buy be held in abeyance pending investigations by Newham’s insurers and any repair work that was found to be necessary.

The following month Newham agreed to hold the application pending the outcome of investigations.

Miss Scinto attempted to chase things up in January 2001.  She received a response from Newham stating that they asked for estimates for the repair work.  Once a winner was identified they would contact her to arrange access.  Newham also apologised for the delay, but the delays continued.  in May 2002 Newham contacted Miss Scinto to say that somebody would carry out the works at the end of that month.  That did not happen.

On 26 February 2003, with the works still not carried out, Newham served a Housing Act 1985, s. 140 notice on Miss Scinto.  A s. 140 notice requires the tenant to complete their right to buy purchase within a set time.  Such a notice cannot be served when “any relevant matter stated to be outstanding in a written notice served on the landlord by the tenant has not been agreed in writing or determined” (s. 140(4)(c)) and “relevant matters means matters relating to the grant” (s. 140(5)).

Miss Scinto did not respond to this notice, so on 30 April 2003 Newham served a second notice under s. 141(1) (the judgment refers to 140(1) on this point, but that must be a typo, see [9]).  This notice required her to complete the purchase within 56 days.  S. 141(5) provides that a tenant who fails to complete within the time allowed by a s. 141 notice has their right to buy claim withdrawn at the end of that time period.

To complete the background in December 2004 Miss Scinto issued disrepair proceedings against Newham.  Some repair work was carried out.  On 26 June 2006 her solicitors wrote to Newham asking to proceed with the purchase on the terms of the 1999 offer.  In November 2006 the disrepair proceedings were compromised without liability being admitted.

Miss Scinto sought a declaration that she was entitled to complete the purchase on the terms of the 1999 offer.  HHJ Barnett QC in the Bow County Court granted this on the grounds that the outstanding repairs were a relevant matter meaning that Newham were not entitled to serve the first notice.  Furthermore, it was unconscionable for Newham to issue the notices when they did and it would be inequitable for them to rely on the notices.

On appeal Newham argued four grounds.  Taking them in the same order as they appear in the judgment:

  1. They could rely on their notices, as it was for Miss Scinto to respond to the first notice by saying that the repairs were outstanding and, following Ryan v Islington, the outstanding repairs were not relevant matters.
  2. HHJ Barnett QC failed to make sufficient findings of fact to support a promissory estoppel case.
  3. Miss Scinto had said in January 2003 that she wished to proceed with her right to buy claim and could not therefore rely on Newham’s representations about repairs
  4. The original offer was invalid as it was made to Miss Scinto and her son; he was not entitled to be joined to the claim

Sir Anthony May gave the only judgment, with which Arden and Jacob LLJ agreed.  He dealt with the first part of ground 1 shortly.  The repairs were outstanding, so it was not open to Newham to issue the first notice.  It was not up to Miss Scinto to respond and point out the outstanding matters, the notice was simply invalid.

However, this only applies if the repairs were a “relevant matter”.  On this point Newham relied on Ryan v Islington.  In that case the Court of Appeal had held that unrepaired structural defects were not a relevant matter for the purposes of s. 140.  However, Sir Anthony May said at [17]-[19] that this was:

a decision to the effect that the existence of contended-for disrepair by itself does not entitle the tenant to defer the completion of the purchase until the repair has been carried out and that, accordingly, it is not a matter relating to the grant…

However, it seems to me that the facts of the present case are crucially different.  In the present case … the parties had in essence agreed that the right-to-buy process would be held in abeyance until the outcome of investigations and that the outcome of investigations embraced such repair works as those investigations indicated Newham should carry out.

Accordingly, the parties had … embraced the matter of carrying out repairs as being a matter relating to the grant…  Newham were not able to serve their first notice under section 140 of the 1985 Act because they were forbidden from doing so by the terms of section 140(4)(c).

Turning to whether there were sufficient findings of fact to support a promissory estoppel case, Sir Anthony May said that the findings of fact that were essential to the whole case were plain and sustained the promissory estoppel claim, at [22]:

There was a clear and unequivocal representation by Newham that they would not proceed with the right-to-buy process until the repairs were effected.  Newham plainly intended that this should affect the parties’ legal relations and Miss Scinto has plainly relied on it by not taking steps to proceed with her claim.

Thirdly, Miss Scinto had said in January 2003 that she wished to proceed with her right-to-by claim, but she had not abandoned her contention that Newham should carry out the repairs first.  It had been clearly said that she could not get a mortgage until the repairs were completed.

Finally, while Miss Scinto’s son might not have been entitled to be joined in the claim as he had not occupied the property as his only or principal home it was far too late for Newham to try and say that the whole process was invalid because of the form of a notice more than a decade old, a notice that Newham failed to produce.  All parties had proceeded for ten years on the basis that the claim was valid, and it was open to Miss Scinto to have the conveyance in her name alone.

Newham’s appeal was therefore dismissed.

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House of Lords Newsflash

Published
by
chief
on 01/07/2009
in Homeless and Housing law - All
. 0 Comments

A full report on Birmingham v Ali and Moran v Manchester [2009] UKL 36 will follow in due course, but for those of you who simply can’t wait for your fix of House of Lords homelessness judgments, the headline is that both appeals are allowed to limited extents. For clarity, Birmingham v Ali is the Aweys v Birmingham appeal.

Baroness Hale, with whom their Lordships all agreed said that Birmingham can decide that a family is homeless because it is not reasonable to remain in their present accommodation indefinitely and to accommodate them for as long as it is suitable as short term accommodation.  However, they can’t leave them there until a house becomes available under the allocation scheme.  Birmingham’s allocation scheme was unlawful to the extent that it gave preference to people in one type of temporary accommodation that was no less satisfactory than the accomodation of those homeless at home.

In Moran although there may be circumstances in which it is reasonable to remain in a refuge indefinitely, there was nothing to suggest that it would be in this case.  The finding that Ms Moran had become homeless from the refuge intentionally was quashed.

We reported the Court of Appeal decision in Aweys (as it was known at the time) here and in Moran here.

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RSL meet HRA, HRA meet RSL

Published
by
chief
on 19/06/2009
in FLW case note, Housing law - All, Possession and assured-tenancy
. 22 Comments

Well, well, well.  Or perhaps well, well, oh heck.  The Court of Appeal has handed down its judgment in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 and, by a majority, L&Q have lost.

It will be remembered that Mrs Weaver was a tenant of L&Q.  L&Q sought to evict her, relying on Ground 8.  She resisted this, claiming that she had a legitimate expectation that they would use Grounds 10 or 11 first and that the eviction engaged Article 8 of the European Convention of Human Rights.  The High Court rejected any suggestion of a legitimate expectation.  Because of the way that it was advanced the Article 8 claim fell as well, but the Divisional Court went on to decide that L&Q was a hybrid public authority for the purposes of the HRA and it was amenable to judicial review.  The Divisional Court did this through an Order, so that L&Q could appeal this finding.  There is a palpable sense of irritation in the Court of Appeal with the way that this litigation has panned out; see Elias LJ at [6], Lord Collins at [87]-[91] and Rix LJ at [104]-[115].  There was also some criticism of the Divisional Court for focusing on the wrong question; see [53]-[57] and [114].

Let’s start with Elias LJ’s lead judgment, then Lord Collin’s concurring judgment, before considering Rix LJ’s dissent.

Social Housing

Elias LJ first outlined the role of RSLs in social housing.  In brief:

  • It is Government policy to provide social housing [8].
  • RSLs were regulated by the Housing Corporation [9].
  • RSLs are subject to detailed housing management guidance, which is approved by the Secretary of State [10].
  • Ss 8-10 of the Housing Act 1996 impose further regulation on RSLs [11].
  • RSLs are subsidised by public funds through Housing Corpn grants [12].
  • They have an important role in assisting LAs to carry out their statutory housing policies; this is not simply through choice, but through legislation [13].
  • Many LA properties are being transferred to RSLs [14].
  • Certain statutory powers are bestowed on RSLs, eg in relation to anti-social behaviour [16].

He then went on to some identifying features of L&Q, such as its charitable status, the origins of some of its housing stock, and the source of some of its funding.

Human Rights Act

The crucial battleground is s. 6 of the HRA.  The relevant subsections are:

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(3) In this section “public authority” includes—
…
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
…
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

Elias LJ then moved on at [30]-[40] to the existing case law on the HRA: Aston Cantlow v Wallbank [2003] UKHL 37 and YL v Birmingham City Council [2007] UKHL 27.  He also noted Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48.  At [41] Elias LJ concluded his journey through the authorities:

I would draw these tentative propositions from this analysis.  First, the source of the power will be a relevant factor in determining whether the act in question is in the nature of a private act or not.  Second, that will not be decisive, however, since the nature of the activities in issue in the proceedings is also important.  This leads on to the third and related proposition, which is that the character of an act is likely to take its colour from the character of the function of which it forms part.

Elias LJ characterised the essential question as “whether the act of terminating the tenancy is a private act”, but this must be done by considering the “context in which the act occurs; the act cannot be considered in isolation” [66].  This, and the third of Elias LJ’s propositions above must be right.

At [68]-[72] Elias LJ finds that L&Q’s function of allocating and managing housing is of a public nature.  There is significant reliance on public funding; L&Q operates in very close harmony with local government, although it does not directly take its place; the provision of subsidised housing, as opposed to the provision of housing itself, is a function which can properly be described as governmental; L&Q acts in the public interest and has charitable objectives; and it is subject to intrusive regulation on allocation and management, not just regulation designed to ensure transparency or proper standards of performance.

This still leaves the central question of whether the termination, involving the exercise of a contractual power, is solely a private act.  At [73] Elias LJ acknowledges that there are observations in YL and Aston Cantlow that would appear to suggest it was.  However, at [76] he says:

In my judgment, the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts.  The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit.  This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties. That could readily be seen as a private function of a kind carried on by both public and private bodies.  No doubt the termination of such a contract would be a private act (unless the body were a core public authority.)

At [80] he moves on to consider whether HRA protection should extend to all L&Q tenants in social housing, or only those in properties acquired as a result of  state grants.  Elias LJ thinks that it should be the former: “The effect of the grant is not merely to assist the Trust (and other RSLs similarly placed) in being able to provide low cost housing to the tenants in the  properties acquired by the grant; it necessarily has a wider impact, and bears upon its ability to provide social housing generally.”  However, the HRA will not extend to those tenants who are not in social housing, but are paying market rents [81]-[82].  Elias LJ says that this is not the equivalent of the possible unattractive consequences of YL; “it merely mirrors the current distinction between those housed in local authority accommodation, who do have human rights protection with respect to evictions, and those housed in the private sector who do not”.

Elias LJ holds, as the Divisional Court did, that this all means that L&Q is subject to JR, as L&Q did not seek to argue otherwise.

Finally, and crucially, he points out that this judgment does not mean that every RSL will be in the same position as L&Q:

For example, a potentially important difference is that apparently some RSLs have not received any public subsidy at all, and arguably – and I put it no higher than that – their position could be different. ([84])

Support

Lord Collins broadly agrees with Elias LJ.  He points out that the added protection may not be worth all that much to tenants in the light of Kay.  At [100] Lord Collins goes further than Elias LJ and says that “It is not easy to envisage circumstances where an act could be of a public nature where it is not done in pursuance … of public functions”.

Dissent

Where it all gets really interesting is Rix LJ’s dissenting view.  At [116] he turns to consider the effects of the jurisprudence of the European Court of Human Rights.  He records that the asked Counsel what the Strasbourg court had said about non-governmental providers of social housing, but was told that there were no relevant cases.

Rix LJ goes on to consider R v Servite Houses ex p Goldsmith (2001) 33 HLR 35 and Poplar in a bit more detail, before providing his own analysis of Aston Cantlow and YL.  He then noted (at [146]) that in R (Ahmad) v Newham [2009] UKHL 12 Baroness Hale emphasised that the provision of housing is not a government function.

At [147] he then concludes that he did not consider L&Q’s “decision to terminate Mrs Weaver’s tenancy by seeking possession from the court on mandatory ground 8 justified by her non-payment of rent is properly to be categorised as the exercise of a function of a public nature rather than a private act arising out of contract.”  Rix LJ relied on ten factors:

  1. Strasbourg jurisprudence did not support the contrary conclusion [148].
  2. He can find no support in Servite, Aston Cantlow, Poplar or YL [149].
  3. Arguments in the instant case had been inappropriately influenced by the structure of the dispute in YL.  There had been too much focus on s.6(3)(b) and not enough on s.6(5) [150].
  4. He is distinctly unhappy about viewing “management and allocation” as an all-embracing public function, that includes termination – “the acceptance that management of social housing is essentially a single integrated function of a public nature is most unlikely to be correct” [151].
  5. It does not follow that termination is automatically a public function simply because allocation is [152].
  6. There is nothing special about the regulation that covers social housing; large parts of commercial life are covered by regulation [154].
  7. There is nothing about the nature of L&Q, or the typical RSL, to suggest that the everyday administration of tenancy agreements is a function of a public nature.  L&Q is a charity, with independent corporate status, an independent board, and owned by private shareholders.  Indeed, ”the world of charity is essentially private” [155].
  8. The main sources of capital finances are private lenders and house sales [156].  While public subsidy is an important factor in the overall assessment, such matters are relative.  Public finance is an element in the equation, but Rix LJ would be sceptical about allowing it to play a dominant role in the assessment [157].
  9. In YL, Lord Neuberger had said that the competing views about policy made it a neutral factor.  Rix LJ would add to Lord Neuberger’s policy arguments for not viewing a function as one of a public nature a further argument; namely that the experience and efficiency of the private sector may be to the public benefit [158].
  10. Public welfare concerns for those in need of social housing can be addressed in a variety of ways; it is unnecessary to artificially classify private contractual decisions as being of a public nature to address these public welfare concerns [159].

Rix LJ takes issue with the Divisional Court’s declaration for not being clear that it is L&Q’s social housing that is at issue [151].  To the extent that L&Q has some non-social housing then this is a fair criticism, but it seems clear that the reference in the declaration should be taken to be a reference to the management and allocation of social housing stock.  It is not clear that the existence of market rent properties owned by L&Q was even put to the Divisional Court.  If it wasn’t then the word “social” would have been superfluous anyway.  Rix LJ suggests later on in the same paragraph that some 36% of L&Q’s properties are outside of the sphere of social housing, but it seems to me that this conclusion does not necessarily follow from the facts.  Just because in a given year some 64% of L&Q’s new lettings were the result of LA nominations [24] does not, for me, mean that all of the remaining 36% are necessarily not social housing.

Preliminary Comments

There is a lot to deal with here and what follows is simply my initial thoughts, so all comments welcome.

It’s probably clear that I prefer the reasoning of the majority, but I still think that there is a lot of value in Rix LJ’s dissenting judgment.  I suspect that his could be an important view as this debate rolls on.

As was suggested in the write-up of the original judgment this case still leaves room for individual RSLs to argue that they are in some way distinct from L&Q and don’t therefore quite cross the threshold to be considered as carrying out public functions.  That will presumably be argued a lot in the ensuring JR and HRA claims against RSLs.

Elias LJ’s conclusion at [80] that this should cover all of L&Q’s social tenants has to be right.  To hold otherwise would draw an unnatural, and difficult to identify, distinction.

There is, understandably, a lot of reliance on YL.  That’s as it should be.  Just because I think that YL was wrongly decided, doesn’t mean that precedent should be abandoned.  What surprises me is that there is no mention of the fact that the Health and Social Care Act 2008 has reversed the result of YL.  Clearly s. 145 of that Act does not change the test in respect of s. 6 HRA; that work appears to be on the back-burner for the time being, although a consultation is still rumoured before the end of the year.  But what, at least in my opinion, s. 145 does do is demonstrate that the executive and the legislature have shown that the result that the House of Lords came to in applying the facts of YL to the test was wrong.  Public policy dictates that providing accommodation, together with care, in a care home is a function of a public nature.  Legislation now explicitly says that because the courts failed to realise it.

I’ve said above that I agree with Elias LJ at [41] and [66], but to the extent that Elias LJ and Lord Collins differ I prefer Lord Collins’ view – see [100].

I’m also not sure about Rix LJ’s point on charitable status in [155].   I merely pose as a thought whether the presence of the Charity Commission as a regulator should influence this.  I’m not sure of the answer, but the Charity Commission was not considered in YL or Heather, other than in a fleeting reference in Heather as to whether the proceedings required their permission.

Lying beneath all of this is still seems to be the same arguments of public policy that have exercised the courts when considering s. 6 right from the start.  That perhaps is a debate for another day.

Anyway, I would imagine that this will be making an appearance in the new Supreme Court before long – doesn’t the Guildhall look nice with the boards taken down?

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Equality Bill – request for help

Published
by
chief
on 09/06/2009
in Assured Shorthold tenancy, Housing law - All, assured-tenancy and secure-tenancy
. 0 Comments

As we noted here, the Government’s new Equality Bill brings together various bits of anti-discrimination legislation and extends some of them.  One area that is extended is protection against age discrimination, which is now covered by Part 3, in respect of goods, facilities and services.  It is not however covered by Part 4 which deals with premises, including housing.

A number of people seem to be looking into this; the Conservatives have put down an amendment as part of the Committee stage, which would include age in Part 4.  We have been contacted by Age Concern and Help the Aged, who are looking for any evidence of harmful age discrimination in premises, in relation to the terms on which housing is offered or the management of housing.  Although their primary focus is older people they are also interested in information of age discrimination against young people.  Housing Benefit rules are one obvious example.

If you have any evidence please send it, not to us, but to them care of Robert.Brown at helptheaged.org.uk.  Hopefully they can keep us updated of developments.

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Straws in the wind

Published
by
chief
on 22/05/2009
in Benefits, FLW case note and Housing law - All
. 2 Comments

Yesiloz v London Borough of Southwark [2009] EWCA Civ 415 was concerned with whether a Turkish asylum seeker was entitled to housing benefit.

Ms Yesiloz arrived in the UK in the late 1990s and claimed asylum.  She moved into premises in Camden and claimed HB on 11 April 2006.  Her claim was rejected on the ground that she did not have a right to reside in the UK.  In January 2007 an Appeal Tribunal held that she was entitled to HB, but the Social Security Commissioner allowed the local authority’s appeal in June 2008.  Ms Yesiloz then appealed to the Court of Appeal.

In February 2008 she was granted exceptional leave to remain and was then succesful with a new claim for HB, so at issue was her entitlement from April 2006 to February 2008.

Legislation

The Immigration and Asylum Act 1999, s. 115 excludes entitlement to benefits, including HB, for persons subject to immigration control, “unless he falls within such category or description, or satisfies such conditions, as may be prescribed”: s. 115(3).

Regulation 2(1) of the Social Security (Immigration & Asylum) Consequential Amendments Regulations 2000 (SI 2000/636) states that s. 115 does not apply to people within four categories.  The fourth category includes people who are nationals of states that have ratified the European Convention on Social and Medical Assistance (ECSMA) and are lawfully present in the UK.  Turkey has ratified ECSMA.  Therefore Ms Yesiloz is saved by the Regulations from disentitlement under s. 115 of the 1999 Act.

However, that is not the end of her problems as it does not automatically qualify her for HB under s. 130 of the Social Security Contributions & Benefits Act 1992.  At the material time this was governed by Housing Benefit Regulations 2006 (SI 2006/213).  Regulation 10 of these Regulations provides that an individual who has no right to reside in the UK shall not be treated as habitually resident.  They are therefore a “person from abroad” for the purposes of Paragraph 1 of Regulation 10 and should not be treated as liable to make payments in respect of a dwelling.  It follows that they would not therefore be entitled to HB.

Paragraph 3B of Regulation 10 specifies a number of categories of people who should not be classified as “persons from abroad”.  Nationals of ECSMA countries are not included in this list.

So the central issue is whether Ms Yesiloz had a right to reside.

Right to Reside

It was accepted by Camden that Ms Yesiloz was lawfully present in the UK, but in Abdirahman v SSWP [2007] EWCA Civ 657 the distinction between a right to reside and a right to admission (or lawful presence) was drawn by Lloyd LJ, when considering a different set of regulations:

It seems to me plain that UK law makes a distinction between a right to reside … on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of … a “right to reside”.

On behalf of Ms Yesiloz it was argued that as people in the first three categories identified in the 2000 Regulations had a right to reside, then people in the fourth category should be treated the same way.  The exclusion of ECSMA nationals from the groups of people who should not be classified as persons from abroad was accidental and there was no public policy reason to exclude those in the fourth category from having the right to reside.  Pill LJ disagreed with this line of reasoning:

31.  Whether the appellant has a right to reside in the United Kingdom depends on the construction of the appropriate statute or statutory instrument, in this case regulation 10 of the 2006 Regulations. The appellant must establish that she has a right to reside. Otherwise she is a “person from abroad” and not entitled to housing benefit. Regulation 10(3B) specifies many categories of persons who are not “persons from abroad”. It was, and was intended to be, a comprehensive list. The need, in this context, for a clear and specific classification is obvious.

32.  The categories do not include nationals of states party to ECSMA. In those circumstances, such persons cannot be said to have a right to reside either because of their position in the schedule to the 2000 Regulations, or because the introduction of the concept of right to reside was primarily aimed at nationals of A8 states, or because there is no powerful reason in public policy for depriving them of the right to reside, or by reason of any combination of those factors. The inclusion of paragraph 4 in part 1 to the schedule to the 2000 Regulations, whatever its purpose, does not, in my view, carry for paragraph 4 persons the implication of entitlement to a right to reside.

33.  The points relied on are straws in the wind and, well though Mr Berry has attempted to make the most of them, they do not permit the words “right to reside” in regulation 10 of the 2006 Regulations to be construed so as to include the appellant.

Smith and Wall LLJ agreed with Pill LJ.  Appeal dismissed.

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House of Lords newsflash

Published
by
chief
on 20/05/2009
in Community care, Homeless and Housing law - All
. 12 Comments

The House of Lords has today given its judgment in the case of R (G) v Southwark [2009] UKHL 26.  We reported the Court of Appeal decision here.  A fuller report will follow on Nearly Legal in due course, but as we may not finish it today the headlines are:

  • The House of Lords unanimously allowed G’s appeal, Baroness Hale giving the leading speech;
  • He therefore was entitled to accommodation under s. 20 of the Children Act, not simply s.17 help with accomodation;
  • Rix LJ’s dissenting view in the Court of Appeal (which was preferred in our report of that decision) was therefore the better one.
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