Author Archive for Dave

A holding note: Coombes v LB Waltham Forest

Published
by
Dave
on 11/03/2010
in FLW case note and Possession
. 0 Comments

We have been aware of Coombes v LB Waltham Forest (Sec of State intervening) noted at [2010] All ER (D) 59 and on Lawtel, decided on 08.03.2010 in an extempore judgment (Cranston J), but waiting for the full transcript to be provided by the High Court.  The case concerns the compatibility of section 3, Protection from Eviction Act 1977 with Articles 6 and 8.  The relevant part of Section 3 says:

(1) Where any premises have been let as a dwelling under a tenancy which is [neither a statutorily protected tenancy nor an excluded tenancy] and—(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.

Mr Coombes had lived in the property for around 54 years with his parents.  On their death, the LA served an NTQ on him.  He claims to have a secure tenancy and that he should have been dealt with through the allocation scheme.  Those claims were stayed pending a hearing in the High Court of his counterclaim on Articles 8 and 6.  On Article 8, the claim was based on his inability to bring his personal circumstances into account in the section 3 proceedings; on Article 6, that section 3 does not allow a determination of his civil rights before a fair and impartial tribunal.  The former point seems strong to me, the latter less so.

Cranston J found against Mr Coombes on both grounds but also granted leave to appeal (although not a leapfrog to the SC).  Cranston J seems to have suggested that an Article 8 defence could be raised in the county court and “The requirement to seek a possession order, rather than to recover possession without any supervision by the court, could not be incompatible with art 8. Coupled with other legislation, s 3 did not fall within the exceptional category of cases which were beyond the boundary of democratic solutions to the problem of allocating scarce public housing.” On the Article 6 point, the note is not exactly full but suggests that Cranston J suggested that the occupier has full access to the court for the determination of his claim.

More to follow on receipt of the transcript…

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Repeat Players

Published
by
Dave
on 02/03/2010
in FLW case note, Licences and occupiers, Possession and Uncategorized
. 6 Comments

[with apologies to the most cited, and brilliant, socio-legal article: Marc Galanter, "Why the 'haves' come out ahead: Speculations on the limits of legal change"]

Mr Justice Beatson dismissed a renewed application for judicial review in R(Husband) v Solihull MBC [2009] EWHC 3673 (Admin).  The claim was pursued on Mr Husband’s behalf by Stephen Cottle, who is described in the transcript by Beatson J as a repeat player.  In Galanter’s classic, it was argued in part that repeat players generally may have the advantage over “one-shotters” partly because they get to know how the trial process works.  Unfortunately for Mr Cottle, the only advantage of his repeat player status was that he retained Beatson J’s clerk’s e-mail address.

The other repeat player is the subject-matter of the application: is the rule in Hammersmith & Fulham LBC v Monk, about which we have written much in the past year or so, compatible with Article 8?  The application was refused on two grounds: first, “it is not, in the state of English law now, arguable that the unqualified right to possession by a landlord is incompatible with Article 8; or indeed, in the light of Sheffield CC v Smart [2002] HLR 34, with Article 1 Protocol 1 of the Convention” (at [8]); second, the claim was not arguable on the facts of the case in which it appeared to the local authority that the property was vacant, and so could not be argued that Solihull had not acted reasonably in acting on the NTQ served by his ex-.

Done and dusted?  I think not.  Rumour has it that Dixon is off to the ECHR; Kay v UK is on the horizon; and then there’s the CA bust-up over gateway b let alone the nine-person SC in Pinnock.  It wouldn’t be surprising if the RCJ is bursting at the seams with appeals and JRs on mandatory possession proceedings.  Maybe 2010 will be the year when we will find out if we are (metaphorically) eating quarter pounders or Royales.

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Proprietary Estoppel: Detriment and Remedy in the Privy Council

Published
by
Dave
on 18/02/2010
in FLW case note, Housing law - All and Trusts and Estoppel
. 0 Comments

In Henry and Mitchell v Henry [2010] UKPC 3, the Privy Council have given further consideration to the doctrine of proprietary estoppel.  The judgment of the PC was delivered by Sir Jonathan Parker and it will be of particular interest as it demonstrates the continuing importance of the Court of Appeal’s excellent judgment in Gillett v Holt [2000] EWCA Civ 66 as well as raising (without deciding) the interesting issue of the remedy when section 116, LRA 2002 is in issue in relation to third party buyers after the estoppel has been established.

In summary, the facts are that Geraldine Pierre, who people referred to on St Lucia simply as “Mama”, allowed Calixtus Henry’s grandmother to build a house on her land and live there.  Calixtus was born there and continues to live there to this day.  Mama visited Calixtus’ plot daily and treated him like a son.  Mama was regarded as such because of her refusal to leave St Lucia and for her willingness to let people live on her land in exchange for working on it.  Calixtus was the only man up to the task.  His evidence was that “Mama stated many times to me … that she would leave the land for those that worked the land and for those that cared for her in her home country”.  Mama also promised him that because he lived on the land, cultivated it, and cared for her, that he would be given her share of the land on her death.  The plot provided food for Calixtus and his family, as well as Mama; that he took food to her and sold any leftovers.  Mama left her share in her will to Theresa Henry.

At first instance, the judge found that Mama had made a clear representation to Calixtus but that Calixtus had not acted to his detriment because he had lived on it rent free for decades, it had been his source of livelihood, and he had reaped its benefits.  Further, his interest could not bind the subsequent purchaser of the land.  The Court of Appeal found that Calixtus had acted to his detriment and awarded him effectively Mama’s share of the property, his “expectation interest”.

In the Privy Council, the issue was as to how the principles of proprietary estoppel should apply in this case.  The question was whether Calixtus had acted to his detriment.  The Board said that the process of deciding whether there had been sufficient detriment was to weigh up the advantages and disadvantages suffered by Calixtus in reliance on Mama’s promises.  The process, in effect, is similar to a proportionality assessment (as to which see below).  The Board followed the approach taken in Gillett that, although the criteria for establishing a claim in proprietary estoppel can be viewed individually, they are often intertwined and, in this case, that was certainly so.  The Board was accordingly required to revisit the question of detriment and found that because he remained working on the land (unlike others), caring for Mama and providing food for her, and effectively depriving himself of the opportunity for a better life elsewhere Calixtus had established detriment and his equity.  He had opted for a “hard life, in which he has had to struggle to make ends meet and to provide for his family, in circumstances where more attractive prospects beckoned elsewhere.

Calixtus had an overriding interest, which bound subsequent purchasers.  It was argued, drawing on Gray and Gray’s excellent Elements of Land Law at para 9.2.93, that proprietary estoppel connotes an inchoate remedy which can be satisfied in a number of different ways including the payment of money depending on all the circumstances of the case.  Section 116, although simple in utline, is really rather a tricky provision because although the equity arises when the detriment has been done, that does not actually affect the potential range of remedies.  In relation to the equivalent provision to section 116, the Board found that it did not arise in this case because it had not been originally pleaded.  However:

The Board does not rule out the possibility that cases may arise in which the particular circumstances surrounding a third party purchase may, notwithstanding the claimant’s overriding interest, require the court to reassess the extent of the claimant’s equity in the property. [56]

With respect to the parties in this claim, this was the most interesting and important issue of law (see my reflective piece which touches this issue in relation to section 2, LPMPA, but could have amplified further in relation to section 116) and it’s a shame that the Board were not able to address it.

Thus, the remedy was in issue.  The Board stressed the following idea: “Proportionality lies at the heart of the doctrine of proprietary estoppel and permeates its every application” (at [65]) – a comment which should be in the heads of all practitioners and students (although I fear it won’t be in the minds of the latter).

Calixtus got one half of  Mama’s share, now vested in Theresa Henry, as the minimum equity to do justice to his claim.   They might have done more here to justify this outcome, but the overall feeling is that Calixtus was not best served by the St Lucian courts.

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Tenancy Deposits: A retrospective

Published
by
Dave
on 15/02/2010
in Assured Shorthold tenancy and FLW article
. 5 Comments

In advance of the brace of Court of Appeal hearings on the tenancy deposit scheme (TDS), contained in sections 212-4 and Schedule 10, Housing Act 2004, and after the High Court decision in Draycott & Draycott v Hannells (discussed with additional, important comments here), I have been spurred on to think about the original purpose of the TDS for two reasons: first, because it places the scheme in context (as Baroness Hale, in academic mode, said, “in law, context is everything”); and second, because it may be that, in finding its underlying purpose, we might also find the underlying meaning of the provisions.  I begin expansively and then narrow the discussion down.

When the history of the private landlord comes to be written, it will be one in which, for much of the twentieth century, there was decline in the face of rising aspirations to home ownership and the rise of publicly provided housing.  That decline occurred for a number of reasons, some economic, some political, and (forgive the academic-speak) some discursive.  The revitalisation of the private landlord since the early 1980s was the product of a recognition that home ownership levels were unlikely to be sustainable in the long term and the new social sector was occupying a more marginal role.  Despite successive government schemes to incentivise the growth of the “new model landlord” (as John Patten put in the mid-1980s), such schemes were largely unsuccessful; growth has occurred most notably through the industry development of “buy-to-let” mortgages.  The private landlord has become responsible in some areas for providing accommodation to increasing numbers of vulnerable households, which has lead to the sector becoming indistinguishable from the social sector in recent years.

A history is important for three fundamental reasons: first, the private landlord interest has coincided with that of successive governments (of whatever hue), accompanied by the rise of landlord associations, which have the ear of those governments (and others – remembering, of course, that the pre-action protocol on rent arrears does not apply to private landlords, unlike its earlier form which was the subject of consultation); second, those governments have taken a rather simplistic view about the decline of private landlords, assuming that the decline was a product of over-regulation, a regulation-as-burden argument (hence the shift to the assured shorthold as the default tenancy in the Housing Act 1996); third, most private landlords are “sideline” in the sense that they have few properties and are, by and large, amateurs (in legal knowledge terms) – renting is a modern cottage industry.  They have become a legitimate target for government intervention, partly through the receipt of HB and partly because of a policy line that has been drawn between the “good” and the “bad” landlord.

At times, though, the dissenting voices about the growth of private landlordism have raised sufficient concern to make government (at least) listen.  One example is Debbie Crew’s campaign against retaliatory eviction; the second example is the TDS.  My suspicion is that they will be written out of the history of the rise of the private landlord or regarded at best as a blip in their progress.

The dissenting voices about tenancy deposit, lead by the CABx, were able to demonstrate the considerable injustice of the then purely contractual scheme, which caused plentiful dispute and this was also shown in various household surveys.  This had a particular impact on the more marginal parts of the sector, in which the deposit is recycled into a new tenancy.  The government’s response was to set up a steering group of landlords and tenants together with a voluntary TDS in 2000 which they evaluated (or rather, Julie Rugg and Mark Bevan evaluated).  The scheme failed, partly because of disinterest by landlords, although the landlord associations did set up their own TDS.  The government hoped that the Law Commission would resolve the problem, but the failure of the voluntary scheme and the continued existence of the problems, together with the power of the dissenting voices, meant that the government decided to amend the Housing Bill after its first reading.  Rugg and Bevan, however, had cautioned that even bodies representing tenants “… were agreed that the issue of deposit mismanagement is not so pressing to to require the introduction of a full-sector regulatory framework.  The widespread lack of a perceived problem with deposits by landlords and agents is likely to bring such a framework into disrepute and may lead to extensive – and expensive – non-compliance” (at 6.3.18).

Having decided to introduce amendments to the Bill at quite an early stage, in retrospect it is unfortunate that the government only amended the Bill regarding the enforcement provisions on 20 October 2004, on the third (and final) day of the Report stage in the House of Lords, responding to concerns raised by Lord Best (of jrf fame).  The lobbyists had been in full cry on both sides – Shelter and the CABx had issued briefing notes; Baroness Gardner had sat next to the chair of ARLA at lunch that day.  Lord Bassam, a government whip (and formerly a leader of the squatters’ movement), introduced the amendments (see HL Debates, vol 665, col 884) and said (my emphasis)

… streamline the proceedings for tenancy deposits to make it easier for tenants to enforce sanctions against non-compliant landlords … A landlord or a letting agent on his behalf now has 14 days from receiving the deposit to ensure that it is safeguarded by a scheme, that he has complied with the initial requirements of the scheme and to provide a tenant with information about that scheme and its operation.  Until this is done, the landlord is unable to regain possession of the property using the usual “notice only” grounds for possession.

Additionally, we have cut down the number of court hearings required to enforce the provisions.  If the landlord or his agent has not complied within 14 days, the tenant can now apply for a court order requiring the landlord to either return the deposit or pay it into a custodial scheme and an order requiring the landlord to pay the tenant an amount equivalent to three times the deposit.  We believe that this provides a greater certainty for landlords that they will face a financial penalty if they do not comply with the provisions.

…

We have put something in place in legislation which will not only stand the test of time but, more importantly, will match the very understandable concerns over tenancy deposits expressed by tenants – and to a degree by landlords – over a considerable period of time. …

We have introduced these amendments with the aim of dealing with the worst abuses in the private rented sector.  Obviously those abuses have a disproportionate effect on the poorest members of our communities.

So, it seems that Lord Bassam (at least) was clear about the extent and purpose of the enforcement provisions.  That he was incorrect about their extent – my sense is that the cases which the courts have been considering, and will consider, are not at the “worst abuses” end of the spectrum – does not diminish his understanding of their purpose.  That understanding was that the provisions created certainty as regards enforcement; certainty was provided by the 14 day rule and the financial penalty should be the result , as a matter of course.  That makes sense if one is seeking to penalise the bad private landlord, and to discipline them away from amateurism.  Of course, you lawyers have since made hay out of badly drafted provisions which were not the subject of full parliamentary scrutiny, and exposed the drafting weaknesses in provisions ostensibly designed not just to protect tenants but penalise landlords.  As a result, I side with JS and against my NL colleague, David Smith; NL’s justifiable anger at the drafting of the provisions as interpreted by Tugendhat J in the Draycott case provide an appropriate footnote to the overly self-laudatory comments by Lord Bassam.

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Trigger happy?

Published
by
Dave
on 11/02/2010
in ASB, FLW case note, Nuisance and Possession
. 0 Comments

In Barber v Croydon LBC [2010] EWCA Civ 51, the Court of Appeal found Croydon’s decision to pursue possession proceedings of a non-secure tenancy occupied by Mr Barber Wednesbury unreasonable, being by my estimation the third such successful use of a gateway (b) defence in the higher courts (after Doherty itself and McGlynn).  There are one or two important points discussed; in particular, the CA took the Taylor approach to possession proceedings as opposed to that advocated in Doran, but more of that below.

First, the facts: Mr Barber suffers from learning difficulties and a personality disorder of a permanent nature.  he was provided accommodation by Croydon under Part VII (as a non-secure tenancy) in 1999.  After an apparently clean record, in 2007, he swore at, threatened, and kicked (in the knee) the flats’ caretaker.  The council’s ASB officer then got involved and immediately served an NTQ, without considering Mr Barber’s circumstances or meeting him.  Subsequently, they did meet and, although some of the allegations were disputed, he did accept a police caution for an offence.  Croydon then issued possession proceedings, which were defended on a number of bases, although two were pursued to the CA (the gateway (b) defence and a DDA defence).  Reliance on the DDA lead to a joint instruction of a psychiatric expert (Dr Owen) who, in brief, found that his disability contributed to his behaviour in relation to the caretaker; if evicted his life would descend into chaos.  It should also be noted that there was just this one incident – there had been nothing else before or since.

The council, through the ASB team manager, nevertheless decided to proceed with the possession claim.  They did so for a number of reasons relating to the protection of their employees, sending the correct message to their tenants, the seriousness of the incident (even though isolated), and, most particularly, the manager was not convinced that the conduct was caused by Mr Barber’s mental disabilities (thus directly conflicting with the expert evidence).

The initial issue was the Doran/Taylor issue, ie at what point does the gateway (b) claim arise?  Doran said that the relevant point was the decision to serve the notice to quit; Taylor was far more expansive.  Patten LJ, giving the only reasoned judgment in this case,  sided with Taylor.  Patten’s LJ’s reasons are compelling, particularly in a claim such as the present:

… in principle, there is no reason to stop at that point [ie the NTQ].  In Kay Lord Hope spoke of the challenge under gateway (b) being to the decision of the local authority to recover possession.  That process involves not only the service of a notice to quit as a necessary first step but also the commencement and conduct of the possession action thereafter.  It seems to me that a local authority is bound to keep the position under review and to take into account any relevant facts which come to its notice at any stage in the proceedings.  This process of review has two obvious consequences.  The first is that it avoids any questions of retrospectivity by requiring the local authority to make a series of decisions which accommodate any new facts or other material relevant to its decision to seek possession.  The second is that it allows the local authority to re-consider new material subsequent to its initial decision to terminate the tenancy and so avoid the charge that it has failed to take all relevant matters into account.  By the same token, a decision to press ahead with possession proceedings taken following a re-consideration of the case subsequent to the notice to quit will be reviewable regardless of the legality of the earlier decision to commence the proceedings.

Wayne Beglan, for Croydon, relied on the ASB manager’s assessment as essentially curing any defect.  There then followed quite a lengthy discussion of the government’s ASB guidance and Croydon’s policy.  That can be cut quite short here because the essential points to note are twofold (1) both the guidance and the policy clearly delineate that action taken against people with disabilities requires a multi-agency partnership type approach and support for the individual; and (2) although Mr Barber’s action fitted into the most serious category of ASB for Croydon’s policy, which “will almost always result in legal action … for an outright possession order”, it only just did so, and the policy itself more broadly drew attention to the range of possible actions (such as an ABC) to change the behaviour of a perpetrator: “Simply to remove him to another location may not of itself solve the problem” (at [32]).

Christopher Balogh, for Mr Barber, argued that Croydon had pressed ahead with the possession claim regardless of the alternative possibilities to which they had given no consideration.  Patten LJ agreed.  There had been no liaison with other mental health or social services to develop an alternative strategy.  The ASB manager’s assertion that there had been no further disturbance at the property after the NTQ because of its deterrent effect also meant that there was no need to press on with the possession claim.  Patten LJ continued (at [43]):

But the principal criticism that can be made is that Mr Hunt carried out the analysis of whether some alternative course of action would prevent any further instances of ASB in the future without assistance from the specialised agencies and without, in my view, giving Dr Owen’s report the weight which it clearly deserves; indeed any weight.  Thus he appears to have rejected Dr Owen’s view that the incident was linked to Mr Barber’s disabilities, although no reasons are given as to the basis on which this was done.  There was also no apparent consideration of the possible consequences for Mr Barber of losing his flat which Dr Owen considered would cause his life to descend into chaos.

Any steps to explore alternatives should have taken place prior to the trial of the claim.

Conclusion: Croydon’s claim was Wednesbury unreasonable in an old-fashioned sense.  Wayne Beglan appears to have been concerned that Croydon would be issue-estopped if they sought possession on the same grounds again, an argument which seems to fly in the face of what is being required, ie a proper reconsideration of all the facts to satisfy the council’s public law obligations.

Comment:

Croydon were clearly on sticky ground after Patten LJ’s refutation of the narrow approach taken in Doran.  Patten LJ’s reasoning on this point is compelling and the gateway (b) claim must attach to each decision taken by the public authority on the way to the ultimate sanction.  Such an approach may well actively assist public authorities as previous decisions can effectively be remedied by a subsequent proper consideration, a point made by Patten LJ.  Croydon seemed to have adopted a trigger happy approach without taking into account the evidence – or, perhaps worse, disregarding the expert evidence.  I have an idea of ASB teams as having a “prosecution-first” mentality, which may be unfair but reflects a criminological bent on my part.  What this case is telling us is that public authorities need to have regard to all the evidence and the proper application of their policy (in this case, consideration of the alternatives).  Mr Barber’s personal circumstances were clearly relevant here (cf Defence Estates) because of Croydon’s policy.  One slight pang I have about this case, though, is whether it is requiring something close to a proportionality assessment of the possession claim (which may go further than other courts have gone in the past, eg Stokes esp at [77], although it does reflect the joint instructions to the expert, who was also asked to make effectively a vulnerability assessment for priority need, as well as the terms of the policy itself).

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Allocations: Scope of Medical Reports

Published
by
Dave
on 04/02/2010
in Allocation and FLW case note
. 0 Comments

R(Bauer-Czarmonski) v Ealing LBC [2010] EWHC 130 (Admin) is a kind of a classic post-Ahmad decision in that, rather than being a challenge to the CBL Locata scheme as a whole, it relates to the way in which Mr Bauer-Czarnomski’s application was treated by Locata; that is to say, it concerns taking into account immaterial considerations.   It is also notable because Mr Bauer-Czarnomski successfully represented himself.

Essentially, Mr Bauer-Czarnomski applied for an allocation in 2004.  He was placed in Band D, the lowest band on the Locata scheme.  His parents both have serious mental problems which necessitated him in giving 24 hour care to them.  This had a damaging impact on his own health as was noted by his doctor in a medical report in 2006.   Now, here’s where it gets interesting.  Locata get its own medical report from, you guessed it, Dr Keen who did not see or communicate with Mr Bauer-Czarnomski.  Dr Keen accepted the GP report but then went on to advise on priority, essentially saying that the current accommodation was adequate.  As Collins J put it, the council were wrong to rely on that advice which was not a matter for Dr Keen who

“… appears to have approached it on the basis that the physical condition of the house and the fact that there was an independent bedroom was sufficient to mean that the conditions of the housing were not such as were affecting his health within the meaning of the policy.  That, in my judgment, was manifestly wrong.  Conditions must extend to the conditions involving those who are living at the house, the effect of their actions and so on.”

Perhaps taking account of the Shala decision, an opinion was sought from a psychiatric adviser who agreed with Dr Keen and went on to say that, in his view, there were other households in a more unpleasant situation.  As Collins J again pointed out, that was not a matter for him to determine.  The point was that Mr Bauer-Czarnomski’s physical and possibly mental health was being adversely affected by the conditions because of the disabilities of his parents.  Collins J said that Band D was clearly wrong and quashed that decision, saying that he should have been placed in either Band B or C.

Mr Bauer-Czarnomski raised a further issue that reliance should not have been placed on the views of a doctor who had not contacted him and had no knowledge of his case beyond the written medical report.  Collins J said that he did not think it was essential for the medical advisor to see the individual “… certainly if he does not dissent from the medical views given in the report that is presented”; suggesting that it may be if there is dissent.  The problem was that Dr Keen and the psychiatric advisor went beyond their remit giving opinions on the appropriate band to put him in, which was a matter for the council – a fairly basic administrative error and not one which really should have come before the High Court.

Mr Bauer-Czarnomski got his costs with a warning from Collins J that they are not terribly generous for a litigant in person.  Finally, Collins J said that he wouldn’t put his direction about appropriate band in an order “because if the Council do not take any notice of it, they will be in trouble”.

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Housing benefit: Two decisions

Published
by
Dave
on 01/02/2010
in Benefits, FLW case note and Uncategorized
. 2 Comments

Two HB decisions from the Upper Tribunal, Administrative Appeals Chamber have appeared, which are interesting because they demonstrate the approach of the Tribunal to the construction of the HB Regs (Torbay Borough Council v RF [2010] UKUT 7 (AAC) (14 January 2010)) and the Tribunal’s approach to appeal grounds (HN v London Borough of Brent [2009] UKUT 289 (AAC) (11 December 2009)).

RF had the good fortune (well, not for RF as it turns out) to appear before Emeritus Professor Nick Wikeley (he of Ogus, Barendt and Wikeley, The Law of Social Security) in his role as a judge of the Upper Tribunal.  RF suffers from Crohn’s disease.  He was sentenced to a term of imprisonment of 12 months on 16 July 2008 and was released on licence on 29 October 2008 (15 weeks later).  It was clear at the time of sentence that his incarceration was to be between 14-17 weeks.  The case concerns the 13 and 52 week rules for HB (Regs 7(13) and 7(16)/(17)).   On the 13 week rule, RF argued that HB should be paid for the 13 weeks, and he would pay the outstanding rent.  The problem was that his incarceration was likely to exceed 13 weeks and, on a literal reading of Reg 7(13) (which requires that the period of absence is unlikely to exceed 13 weeks), Wikeley J found against him on this point: “The approach suggested by the claimant – that the local authority meet his rent for the first 13 weeks and that he meet the balance thereafter – might seem superficially attractive.  However, social security legislation does not generally permit this type of negotiated compromise.  A person is either entitled to benefit or not entitled to benefit” (at [12]).  RF was not entitled.

The 52 week rule, however, was a rather different matter because, on a literal reading, it applied to RF’s case.  The issue was whether his claim fell within Re 7(16)(c)(iii); ie that he was “undergoing, or as the case may be, his partner or his dependant child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation.”  The first tier Tribunal, which had found in RF’s favour on this point, had erred because it had applied an excessively literal approach to this provision.  Wikeley J held that there has to be a connection between the medical treatment and absence from home.  RF was absent from home because he had been incarcerated and not because of his need for treatment.  Express provision is made for certain prisoners in Reg 7(16)(c)(i) and: “The very fact that special provision is made for one class of prisoner is a strong indication that other classes of prisoner are meant to be excluded.  The Latin maxim, and principle of statutory interpretation, “expressio unius est exclusio alterius” (to express one thing is to exclude another) is apt here.  So the very fact that remand prisoners away from home for more than 13 weeks are included in regulation 7(16) is an indication that convicted prisoners are excluded” (at [24]).  Wikeley J then retreats into an excursus on the history of the temporary absence rule, noting the “conversation” (my word, not his) between the SoS and the Social Security Advisory Committee in 1995, which reinforced Wikeley J’s conclusions on the issue.

HN was heard by Lane J (as it turned out, to HN’s very good fortune) and concerned overpayments of HB and CT after HN had said that she was a lone parent between 16/09/02 and 16/01/07.  The first tier Tribunal had held that she had been living with her partner, a finding which Lane J refused to disturb (and did not grant permission to appeal on this point on the basis that Tribunals only ever have circumstantial evidence to go on, the burden of proof is on the authority, and the Tribunal must make a decision on the balance of probabilities [which it had done here]).  The overpayment claimed back was £58,797.14.  Lane J, however, granted permission to appeal on a point not raised by HN which was that the overpayment should be reduced by the entitlement of her partner and by the birth of a further child (Reg 104(1)).  As a result, the overpayment of HB was £3572.26, quite a significant difference and well-spotted by Lane J of his own volition.

One final point: Brent asked if they could recover half of the overpayment against HN’s partner, which was possible under the 1987 Regs.  Lane J said that the new form of Regs did not allow for this save in cases of misrepresentation or failure to disclose a material fact (not applicable here).  However, “The Authority does have a discretion to recover from a partner under regulation 102(1ZA) in certain circumstances.  This provision is probably applicable at the enforcement stage, not least because (i) only a discretion is given, and (ii) any decision under this regulation 102 is not appealable to a tribunal (paragraph 1, Schedule, Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001)”.

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Transfers and rent arrears

Published
by
Dave
on 29/01/2010
in Allocation, FLW case note, Homeless and Housing law - All
. 1 Comment

The question of the interaction between housing debt and prioritisation for an allocation under Part VI, Housing Act 1996, appears to have been in issue in R(Osei) v Newham LBC Lettings Agency, decided on 27.01.10.  I say “appears to” because, as of yet, no transcript is available – summaries appear on Lawtel and Lexis – and I for one would be grateful of sight of the full transcript (hint hint to Alison Meacher/Hereward & Foster [who acted for Ms Osei] and Lindsay Johnson/Newham [for Newham]).  Essentially, the question was whether it was appropriate for Newham’s choice-based lettings agency to decide that Ms Osei’s rent arrears were sufficient to reduce her priority when bidding for properties.  Ms Osei appears to have had a terrible time of it.  She was a victim of domestic violence and applied for an out-of-borough transfer with her two children (she was also pregnant).  Her application was supported by a variety of agencies (the LA’s domestic violence team, their ASB team, and a child protection plan also supported her application for an urgent need for re-housing).  Newham’s lettings agency initially accepted her application but only subject to her clearing her former tenancy rent arrears (which would, on any view, have been unlawful unless Newham found her to be ineligible).  They subsequently issued a decision-letter which said that Ms Osei was entitled to emergency re-housing; but, given the number of households entitled to such priority, Ms Osei’s rent arrears were such that she would rank with a lower priority so that it was unlikely she would be made an offer of accommodation; the lettings agency was not minded to exercise its discretion to rehouse her.

Ms Osei argued (a) that the local authority had fettered its discretion by making the issue of the rent arrears the absolute priority consideration without regard to her personal circumstances and the danger she was in; and (b) the lettingss agency failed to give adequate reasons.  It should be said that Newham also put in a supporting witness statement.

Lord Carlile QC, sitting as a Deputy Judge, held that Ms Osei’s circumstances had been taken into account and the agency had been satisfied that Ms Osei’s case was not such an exceptional one as to enable her debt to be disregarded.  Certain of the correspondence had not been “felicitously phrased, and suggested a restrictive approach by the agency to debt” but, applying Holmes-Moorhouse (presumably Lord Neuberger’s judgment in relation to section 202/204 decision letters, discussed in NL’s post on that case), such letters were not to be read as statutory provisions and the decision-letter clearly set out Ms Osei’s domestic situation as well as the regard had to that situation.  On the inadequate reasons point, it was held that there is no particular form for the giving of reasons “… and having regard to the knowledge that [Ms Osei] and her solicitors could be taken to have had it was clear that sufficient reasons had been given for the agency’s decisions” (applying R(M) v Hackney LBC [2009] EWHC 2255 – links to our note, see [35] of the judgment).

There’s a lot going on here that requires some background information – hence the need for a transcript!

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Credit where it's due?

Published
by
Dave
on 12/01/2010
in FLW case note and Trusts and Estoppel
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Walsh v Singh [2009] EWHC 32 is a fascinating case about constructive trust (CT) and proprietary estoppel (PE), or at least it could have been. First credit goes to HHJ Purle QC, sitting as a judge of the High Court, who has managed the seemingly impossible task of giving judgment in such a case without reference to any authority (beyond Yeoman’s Row v Cobbe, but on the quantum meruit point), despite the case being redolent (at least) of the facts in Lloyds Bank v Rosset, Midland Bank v Cooke, Coombes v Smith, Cobbe (on the estoppel point), Stack v Dowden, Thorner v Major (although probably distinguishable), a possible tinge of Tinsley v Milligan, and I could go on.  That’s not to say that the judge was wrong or that he necessarily applied the wrong principles, but it does make the case eminently appealable.  In fairness to the judge, one might say that CT/PE cases are fact specific and he heard evidence over around seven days, the parties clearly hated each other and the evidence was hardly ad idem, so he had much to sort out; and he did apply a set of principles which broadly correspond to the law.

I’m going to set out the facts and judgment, and then seek to reconstruct the case, identifying some further issues.  In particular, part of the interest in this case comes from the basic problem facing anybody trying to make a claim based on CT and PE as regards detriment when they have been in a loving relationship (although this one seems to have been quite turbulent): how can you show that your acts were done on the basis of gaining an interest in the home as opposed to doing them out of love for your partner? (on this, see in particular Rosset, where, to paraphrase Lord Bridge, it was the most natural thing for a wife to do the acts Mrs Rosset did to get the home ready in time for christmas).  But I’m getting ahead of myself – first, the facts and judgment.

Ms Walsh is a barrister, who began practice in 2000; Mr Singh is a dentist but also “a canny businessman”.  They began living together in 1997, they became engaged in 2001 but subsequently the engagement broke off in 2005.  The property (“the Leire project”) that was the main subject of this dispute was bought in 1999.  The property was bought in Mr Singh’s name only and he paid the entire amount including a mortgage in his name.  The property was bought with the intention of developing it over time into an equine centre (cue amusing jokes about names of horses – ege a stallion, “Pointless”, who lived up to his name by not breeding).  Before the purchase, Ms Walsh’s evidence was that the property was put into Mr Singh’s name because he was paying the mortgage, but that Ms Walsh would have a half share.  That evidence was doubted because Ms Walsh was unsure of the exact words he had used on that occasion.  Subsequently, he promised her “financial security” and that she was entitled to have a joint say in decisions about the home and be clear about decisions made.  Other evidence was that they had engaged on a “joint venture”.  Mr Singh subsequently purchased fields and a paddock for his SIPP.  Ms Walsh assisted with the purchase of both by paying Mr Singh £7500 in respect of the fields and £25000 in respect of the paddock.  That was the evidence on common intention/assurance.  I’m leaving out of the discussion here Mr Singh’s unfortunate conduct in relation to the engagement ring, not dwelt on here but his conduct was “decidedly unattractive” and raised the possibility that his conduct was less than forthright in relation to the properties.

What about detriment?  In addition to the payments for the fields and paddock, Ms Walsh found the property, researched various legal points (a protected tenancy issue and planning permission), contributed to the obtaining of planning permission (in their joint names), and she contributed physically to renovation works, helped him with his other business activities, and, significantly, gave up her promising career at the bar (going part time and then ceasing her practice in August 2004) to run the equine centre.

Ms Walsh claimed a 50% share of the entire property.

HHJ Purle found against Ms Walsh.  He found that the payments for the field and the paddock were loans (as Mr Singh claimed) on the basis that the SIPP arrangements presupposed that Mr Singh was investing his own money as he was entitled to tax relief on his contributions.  Although her conduct was significant, the judge was unable to accept Ms Walsh’s evidence that she was promised or was encouraged to believe that she would have a half share.  He gave 12 reasons for that finding, the most significant of which were all the cash was provided by Mr Singh; they kept their finances separate; there was nothing in writing about the half interest despite Ms Walsh’s concern to have an explicit assurance (“surprising in the case of a person of high intelligence, the more so as she was training to become (and subsequently became) a barrister”); statements to others that she knew that she wouldn’t be entitled to anything if they separated; Mr Singh wouldn’t have promised her anything when all the financial burden and risk was on his side; there was a gentleman’s agreement between them in March 2006 that accepted that Mr Singh owned and controlled all of the property (but would pay Ms Walsh maintenance); all of Ms Walsh’s contributions were referable to their long-term relationship, with the prospect of marriage and not to the acquisition of a beneficial interest; Mr Singh’s contribution were much more significant that Ms Walsh’s.

As regards what the judge referred to as an “implied bargain constructive trust” – surely wrong – he said that Ms Walsh’s strongest point was giving up the bar to run the equine centre but she did that “because she was committed to Mr Singh as her partner and (from April 2001) her fiance, and because she hoped and expected to marry him” (at [59]).  Even though the gentleman’s agreement expressly recognised the significant contribution made by Ms Walsh to the ongoing development of the site and the equine centre, that was insufficient for the same reason.  A quantum meruit claim also failed because she never intended to act for a reward.

Finally, there was a jointly owned villa in Italy which the judge held  (on the basis of English law anyway) was beneficially owned in equal shares because there was nothing to rebut the presumption of  beneficial ownership in equal shares.

I accept that the judge had an awful job in this case disentangling the interests of the parties and also that English law, of course, knows no concept of community/family property etc.  The basis for asserting the claim had to be a CT or PE.  If there was no property-specific assurance about the Leire project, only assertions of “joint venture” etc,  that pretty much deals with the PE issue (see Coombes v Smith). But there did seem to be more than that if one accepts that he said words to the effect that her “home is her home”.  The same is true of the express common intention.  This raises an issue which is kind of left hanging in Thorner: How unclear/ambiguous does a statement have to be before it fails to act as an assurance/representation?  One answer to this, perhaps drawing on Gillett v Holt, is that a lack of clarity can be made up by the extent of the detriment undertaken by the Claimant (?).

But, most significantly, the judge refers to implied bargain CT and simply does not engage with the issue of whether such an intention can be inferred or, as suggested obiter probably by at least two members of the HL in Stack, imputed.  Whether that would, in any event, have assisted Ms Walsh is open to doubt though, bearing in mind her professional status – an imputation must have some basis in fact (or at least, that’s what I think).  But the inference is open to question, raising the prospect of discussion about the thorny issue of the relevance of indirect contributions.  The issue here about Ms Walsh’s direct contributions to the SIPP fund, entitling Mr Singh to tax relief on those contributions, is a bit like the problem in the way of Mrs Rosset as Mr Rosset’s swiss family trustees had explicitly said that Mrs Rosset was not to get a beneficial interest in the property putting the kibosh on her claim to an express CI.  Ms Walsh’s situation is different as she would be claiming an inferred CI and Tinsley v Milligan might be of assistance here.

I could go on (and on – having just prepared my lectures on this).  My point is that none of this was discussed.  Ms Walsh’s situation is like Mrs Burns in Burns v Burns, although perhaps not as extreme.  It raises the question, which equity forces us to ask, as to why people do things.  The answer must be more complex than the rules of equity allow us to think – Ms Walsh may have given up her career at the bar because she loved horses and Mr Singh, but maybe she also gave it up because this was a joint venture, which suggests some form of stake in the project.  Ms Walsh is better equipped to answer that not just because she was involved but also because her first degree was in psychology.  As Baroness Hale said in Stack (at [69]), in law “context is everything”.

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The HRA and precedent

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