The bedroom rule is a “bright line rule” contained in Reg 13D(3) of the HB Regs 2006 which entitles HB claimants to one bedroom for each of the following: a couple, a person who isn’t a child, two children of the same sex, two children who are less than 10 years old, and a child.  In Burnip, and Trengove, the applicants had been assessed for DLA as requiring day and night care from another person.  However, there was no provision in the bedroom rule for an extra bedroom for a carer.  [Ms Trengove's claim was continued after her death by her personal representative]  This rule has been changed from 01.04.2011 so that carers requiring a bedroom can be taken into account, but these claims related to periods before then.  In Gorry, two of Mr Gorry’s children, both girls, had (different) disabilities which meant that it was inappropriate for them to share a bedroom.  The rule change after 01.04.2011 does not apply to persons in Mr Gorry’s case so the judgment will have a continuing significance in such cases.

The questions were whether the bedroom rule was discriminatory under Article 14 of the European Convention; and, if so, whether there was any objective and reasonable justification for their discriminatory effect.  They agreed with each other although Kay LJ gave the lead judgment on the former, answered in the positive; and Henderson J gave the lad judgment on the latter, answered in the negative.

On the former, the appellants’ case was that the rules had a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied.  The shortfall for these applicants was significantly greater than for other applicants because their HB was based on one room less than their objective needs.  Alternatively, drawing on Thlimmenos v Greece (2001) 31 EHRR 15, the right is also violated “when states without an objective and reasonable justification fail to treat differently persons whose situations are significantly different”.  The Court held that discrimination was established on the basis of either approach.  It seems to break new ground on the latter, as Kay LJ put it (at [18]):

Whilst it is true that there has been a conspicuous lack of cases post- Thlimmenosin which a positive obligation to allocate resources has been established, I am not persuaded that it is because of a legal no-go area.  I accept that it is incumbent upon a court to approach such an issue with caution and to consider with care any explanation which is proffered by the public authority for the discrimination.  However, this arises more at the stage of justification than at the earlier stage of considering whether discrimination has been established.  I can see no warrant for imposing a prior limitation on the Thlimmenos principle.

Kay LJ then went on – and this is, I suspect, properly obiter (see [19]) but significant – to suggest that the UN Convention on the Rights of Persons with Disabilities could have been used as as an aid to the interpretation of Art 14 so that, if its meaning had been elusive or uncertain, that uncertainty would have been resolved in favour of the appellants (at [22]).

So, there’s a lot of assistance there for future claimants/appellants where discrimination on the grounds of disability are pleaded.

We then come to justification and I really must applaud Henderson J’s meticulous examination of the benefits claimed by the appellants in the round.  He noted, first of all, that this was not a case where “very weighty reasons” were required as it was a case of indirect discrimination or failure to make an exception from a policy or criterion of general application, especially where social policy questions were in issue (at [28]).  Mr Burnip was entitled to incapacity benefit, DLA, and a student loan, in addition to his HB.  His weekly income was £288.09.  For hb purposes, DLA is disregarded; his reckonable income exceeded the applicable amount by £12.25; his maximum eligible rent, based on entitlement to one edroom, was £103.85, which was reduced by 65% of £12.25 (application of the taper).  In short, he was entitled to £95.89 pw for hb; his rent was £155.77 pw.  He received a discretionary housing benefit payment intermittently, it did not cover the shortfall or the difference between the one and two bedroom rate, and there were periods when he received nothing at all.

Henderson J made three crucial points: (a) incapacity benefit and DLA are designed to meet ordinary living expenses and not intended to meet housing needs – that is HB – so, it would be wrong in principle to regard “those subsistence benefits as being notionally available to him to go towards meeting the shortfall between his housing- related benefits and the rent he had to pay” ([45]); (b) discretionary housing benefit payments were not a complete or satisfactory answer to the problem that he needed two bedrooms but was assessed on the basis of one bedroom only because they are (i) discretionary, (ii) payable from a capped fund; (iii) could not be relied on to meet the difference between one/two bedroom rates; and (c) the difficulty in finding suitable accommodation and the probable need for adaptations mean that it is likely to require a long-term commitment for which there was a need for “… a reasonable degree of assurance that he will be able to pay the rent for the foreseeable future, and that he will not be left at the mercy of short term fluctuations in the amount of his housing-related benefits” ([47]).  The same reasoning held good for Ms Trengove and for Mr Gorry.

The government seems to rely on discretionary housing benefit payments every time it reduces the applicable amount or makes other deleterious changes to the rules, and this case should be a salutary lesson to them that they cannot simply rely on that before the courts.

More generally, Henderson J said that the kinds of considerations which allowed the Court of Appeal to uphold discriminatory rules against persons with disabilities in the immigration context – AM (Somalia) at [29], Kay LJ, and [64]-[72] – were not relevant here where “we are here concerned with a benefit (HB) the purpose of which is to help people to meet their basic human need for accommodation of an acceptable standard” ([64]).  He went on to say that the exception here is for a small category of persons (“relatively few in number, easy to recognise, not open to abuse and unlikely to undergo change or need regular monitoring”: [64]), so that the cost and resource implications would be modest.  Finally, as Parliament has now legislated for cases of the Burnip/Trengove variety, at a time of economic hardship, should “… be taken as recognising both the justice of such claims and the proportionate cost and nature of the remedy” ([64]).

The Court granted a declaration by way of relief, leaving it to Parliament to resolve the problem.

Faidi & Anor v Elliot Corporation [2012] EWCA Civ 287 concerned two leaseholders in Eaton Mansions. The freeholder is the Grosvenor Estate and the reversioner is Eaton Mansions (Westminster) Ltd (EMW), a company owned by the leaseholders. The Claimant had Flat 6, the Defendant Flat 8, directly above it. The leases were in identical terms.

Clause 4 of the lease contained covenants by the tenant with the landlord “and with and for the benefit of the Flat Owners”. Clause 4(5) stated that the tenant covenanted to:

“observe and perform the regulations in the Fourth Schedule hereto or any future regulations imposed by the Lessors for the better management of the Building Provided that the Lessors reserve the right to modify or waive such regulations in their absolute discretion”

The Fourth Schedule contained at paragraph 3 a prohibition on ‘doing, permitting or suffering, in or upon the demised premises, any act or thing which may be or become a nuisance or annoyance to the lessors or the tenants of the lessors or the occupiers of any part of the building or of any adjoining or neighbouring premises’, and at paragraph 15, this:

“At all times to cover and keep covered with carpet and underlay the floors of the Demised Premises other than those of the kitchen and bathrooms and at all times suitably and properly to cover and keep covered the floors of the kitchen and bathrooms in the Demised Premises”

Flats 8 and 10 had been joined as one. The Defendant decided to separate them, and obtained consent from the freeholder and EMW in 2007. A part of this consent involved a letter requiring the works to include “an appropriate sound resisting/absorbent material must be laid between the floor structure and the new floor finish”, as the new floors in Flat 8 where to be timber, with underfloor heating.

The Defendant’s evidence was that sound proofing material had indeed been put in place between wooded floor and the concrete.

The licence for the works was to last the term of the lease, unless breaches of licence term were unremedied. Clause 7.3 of the licence stated

“It is agreed and declared that the obligations on the part of the Tenant and the conditions contained in the Lease which are now applicable to the Premises shall continue to be applicable to the same when and as altered as permitted by this licence and shall extend to all additions made to the Premises in the course of the Tenant’s Works.”

The Claimants claimed that ordinary noise from Flat 8 was a disturbance to them in Flat 6. Eventually they issued proceedings in the tort of nuisance and in breach of covenant. Both heads of claim were dismissed at first instance trial. The Claimants appealed, solely on the breach of covenant issue.

The argument from each party was:

The Defendant’s case was that, by agreeing to the work being done as proposed by Stinger, EMW had waived the obligation to carpet those rooms to which otherwise the obligation to lay carpet and underlay would have applied under paragraph 15 of the Fourth Schedule. That is because it would have been inconsistent with the giving of consent to the installation of the new timber floor in general, and in particular also with the installation of underfloor heating as the primary source of room heating. It was open to EMW to waive that obligation under clause 4(5), and that is what they did.

The Claimants opposed this on two different bases. First it was said to be inconsistent with clause 7.3 of the licence, which preserved the application of the lease. Secondly, it was said that the conduct of EMW was not clear enough to amount to an irrevocable waiver, especially having regard to the effect of the waiver not only on EMW itself but on the lessees of other flats. It was said that, if Stinger had wanted a dispensation from the terms of paragraph 15 of the Fourth Schedule, it should have sought it in express terms as a provision of the licence.

At first instance, the Judge held that there had been a waiver of paragraph 15 as the licence gave permission to carry out the specific works involved. Laying carpet would reduce the effectiveness of the underfloor heating, so carpeting throughout was not a reasonable solution. In addition the sound proofing that had been put in exceeded the relevant building regulation requirements.

Rather astonishingly, there was no issue on privity of contract or privity of estate taken in the assignee leaseholder of flat 6 seeking to enforce a lease covenant in the lease of flat 8 against the assignee of that lease.

On appeal, the Claimant argued that the carpeting requirement should not be seen as all or nothing. There were rugs in parts of flat 8. Thus EMW’s licence should not be seen as irrevocably waiving paragraph 15. It was thus open to the court to make an injunction, at its discretion, for an intermediate solution which would give some sound protection while not affecting the purpose of the underfloor heating and wooden flooring.

The Court of Appeal was not having this:

Clause 4(5), as applying to paragraph 15, is either effective or it is not. If it is effective it requires the entire floor surface of the relevant rooms to be covered with carpet and underlay. If it is not effective, it does not require carpeting at all. An intermediate solution might have a great deal to be said for it as an agreed or mediated solution to this sort of issue, arising as it does between neighbours who may have to live with the situation over a long period. It does not seem to me that an arrangement for agreed partial carpeting is one which the court could achieve, whether under its discretion as to the grant of, and the terms of, an injunction, or in any other way.

The Claimant also argued that clause 7.3 of the licence meant that the lease covenants applied as before. This included para 15 of the Fourth Schedule – the carpeting obligation.

Further, the Claimant argued that there was nothing in the licence which precluded EMW later requiring compliance with paragraph 15 if it turned out that there remained problems of sound disturbance. EMW as landlord was also acting on behalf of other lessees. Its position was to be taken as being not that it would never seek to enforce the paragraph 15 obligation, but that it would not do so except for good cause.

The Court of Appeal found that, while it would have been better if the licence had been clearer on this point, the licence had expressly addressed the specific works and alterations in a way that could not be overcome by a general clause. The waiver was good.

Further it was unrealistic to take the licence as being less than a full waiver. The possibility of enforcement of paragraph 15 was wholly at odds with the nature, extent and expense of the works covered by the licence.

Appeal dismissed.

Lord Justice Jackson went on the make the following observations on neighbour disputes, the courts and the value of mediation:

34. [...] This case concerns a dispute between neighbours, which should have been capable of sensible resolution without recourse to the courts. During the course of his submissions in the Court of Appeal Mr Pearce for the claimants observed that this may not be an “all or nothing” case. A moderate degree of carpeting in flat 8 might (a) reduce the noise penetrating into flat 6 and (b) still enable the occupants of flat 8 to enjoy their new wooden floor. This is precisely the sort of outcome which a skilled mediator could achieve, but which the court will not impose.

35. Of course there are many cases where a strict determination of rights and liabilities is what the parties require. The courts stand ready to deliver such a service to litigants and must do so as expeditiously and economically as practicable. But before embarking upon full blooded adversarial litigation parties should first explore the possibility of settlement. In neighbour disputes of the kind now before the court (and of which I have seen many similar examples) if negotiation fails, mediation is the obvious and constructive way forward.

36. In the present case a mediator would not have been concerned about the interaction between the various leases and the licence to carry out works. Nor would he have been concerned about the other interesting points of construction, which first the county court judge and now this court have been called upon to decide. Instead he would have been helping the parties to find a sensible resolution of the practical problem which had arisen. I have little doubt that such a mediation would have been successful. The points of law upon which the litigation has turned are not easy ones and at the time of the hypothetical mediation neither party could have been confident of victory.

37. As it is, neither side wrote to the other proposing mediation until shortly before the hearing in the Court of Appeal. By then huge costs had been incurred. The claimants’ costs up to the end of trial were £23,195. The claimants incurred a further £34,609 costs on the appeal. The defendant’s costs up to the end of trial were £32,798. The defendant incurred a further £49,532 costs on the appeal. Thus the total costs thrown away amount to £140,134. If the parties were driven by concern for the well being of lawyers, they could have given half that sum to the Solicitors Benevolent Association and then resolved their dispute for a modest fraction of the monies left over.

In brief, the Regulation provides that once a request for a s.202 review has been made, the Authority is obliged to notify the applicant of their right to make further representations on review, either personally or by somebody on their behalf.

In both El Goure and Maswaku, the Authorities were criticised for failing to notify the Appellants or their solicitors once the requests had been made that the Appellants themselves, or somebody else on their behalf, might make review representations. Mummery LJ gave the lead judgement in both cases and remarked that the point was an empty one. The purpose of the Regulation was to protect unrepresented applicants, not those who already had the benefit of legal representation. There was no suggestion that the applicants failed to make the desired representations because of the lack of notification and it did not follow that the review decision ought to be quashed, even if the duty to notify was mandatory. There was nothing further that the Authority could reasonably have been expected to do as the underlying purpose of the Regulation had been achieved.

(Comment: it would be interesting to see how the Court would deal with this issue if an applicant, in ignorance of their rights, made their own representations on review)

The additional issue in Maswaku concerned the duty under s.193(5) of the Housing Act 1996 to notify the applicant of the ‘possible consequence’ of refusal of temporary accommodation. The applicant refused a placement in Dagenham because of the difficulties involved in attending training in Hackney. The Appellant complained on appeal that she had not been informed, inter alia, of her right to make a fresh application as homeless, the risk that she might be found intentionally homeless and the risk that she might lose priority on the waiting list.

The judge rejected this ground of appeal. The ‘possible consequence’ of refusal of temporary accommodation was the discharge of housing duty, which had been communicated. It was not incumbent on the council to spell out all the potential consequences of refusal of temporary accommodation.

The main issue in El Goure was the test that the Authority applied under s.189(1)(b) where the children’s residence was shared. The Appellant complained that the council had applied an ‘exceptionality’ test and had misdirected itself, whereas the statutory question was whether it was reasonable for the children to reside with the Appellant. The Court noted the use of the word ‘exceptional’ in the review decision but found that the way the reviewer reasoned the decision showed that the correct test had been applied. The reference to ‘exceptionality ‘ in Holmes-Moorhouse was intended (as in Pinnock) as an outcome and not a guide. The appeal was dismissed.

Beitov Properties Ltd v Elliston Martin [2012] UKUT 133 (LC) is, I suspect, going to cause some sleepless nights for managing agents of long leasehold properties (and, possibly, some other agents and landlords).

Section 47, Landlord and Tenant Act 1987 applies to all demands for rent (whether ground rent or “normal” rent), service charges and administration charges. It requires that all written demands for payment of such sums must “contain… the name and address of the landlord and… if that address is not in England and Wales, an address in England and Wales at which notices… may be served on the landlord by the tenant.” If this information is not provided, then the sums are not due “any part of the amount demanded which consists of a service charge” is not due (S.47(2)).

In the present case, the service charge demands had given the name of the landlord, but not his address. Rather, they gave the address of the managing agents. The LVT held that this was insufficient to comply with s.47 and, hence, the service charges were not due. They rejected an argument that it was good enough to give the details of the agent, holding that the requirement as to give the registered address or trading address (in the case of a company).

The Upper Tribunal dismissed an appeal. The wording of s.47 was clear. The requirement as to provide the name and address of the landlord, not of any other party. If that address was not in England or Wales, then an address in the jurisdiction had to be provided. Either way, the demand had to tell the tenant who the landlord was and where he could be found. In the case of an individual, this would be his place of residence or business. In the case of a company, it would be either the registered office or place of business. None of this had been complied with, so the appeal was dismissed.

The Upper Tribunal did (to my mind, rather unfairly) appear to criticise the LVT for taking such a technical point (“balls aching” as one learned member of the NL team called it). I’m not sure that’s fair. If it’s the law then it’s the law. The LVT can’t chose which laws to enforce and which to ignore. This appears to be a large commerical landlord, with access to professional advice. It’s surely not too much to ask that they get this bit right?

As to the wider consequences. First, I rather suspect this landlord (or, rather the agents) are urgently checking their demands again. But this is a wider issue. I know of many managing agents that take the same approach as in this case. I rather suspect it’ll be a while until this filters into the wider consciousness. Until then, this “balls aching” point is there to be taken.

The actual judicial review that gave rise to this hearing was an age assessment case which was conceded by the Local Authority following a second expert’s report. A consent order was agreed, but no agreement on costs. Submissions on paper resulted in a first instance order that:

‘Having considered the submissions on costs made by both parties and having regard to the principles referred to by the court in R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 and to the caveat added by Hallett LJ in R (Scott) v Hackney LBC [2009] EWCA Civ 217 at 51 – to the effect that a judge must not be tempted too readily to adopt the default position of making no order for costs – I accept that this is the just outcome here. As has been submitted for the defendant this is not a case where the case was obvious from the outset. And in view of the dynamic development of this area of the law while the claim was live and the burdens on the defendant which are referred to in paragraph 12 of its submissions I do not consider the defendant’s conduct in the proceedings has been such as to justify an award of costs being made against it.’

The Claimant appealed, arguing that:
(i) The judge failed to address the appellant’s primary argument that costs should follow the event.
(ii) The judge misdirected himself in refusing to award costs because the outcome was not obvious from the outset.

Permission to appeal was given in light of Bahta.

I’ll turn to the specific points on this case at the end of this note, including the basis of the arguments. However, the primary interest is in what amounts to guidance set out by the Court of Appeal on costs in settled Judicial Reviews.

The Master of Rolls at paras 60 to 63, says:

60. Thus, in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61. In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis.

62. In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument that, where the parties have settled the claimant’s substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. That I think was the approach adopted in Scott. However, where there is not a clear winner, so much would depend on the particular facts. In some such cases, it may help to consider who would have won if the matter had proceeded to trial, as, if it is tolerably clear, it may, for instance support or undermine the contention that one of the two claims was stronger than the other. Boxall appears to have been such case.

63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.

And Stanley Burnton LJ states at paras 75 to 77:

75. The consequence of our decision should be a greater willingness on the part of the parties to judicial review proceedings, at first instance and on appeal, to agree not only the substantive provision of the order to be made by the Court, but also the issue of costs. Settlements in which the question of costs is left to be determined by the Court at a later date are common, and perhaps too common. Parties can no longer assume that the likely order is no order as to costs, even where one party or another has conceded the whole, or substantially the whole, of the other side’s case.

76. A successful negotiation of costs issues is likely to be cost effective, saving the costs of subsequent written submissions and saving the time of the judge who is required to determine costs. It is in both parties’ interests to address the question of comprehensive settlement as early as possible.

77. Where the parties are unable to agree costs, and they are left to be determined by the Court, it is important that both the work and costs involved in preparing the parties’ submissions on costs, and the material the judge is asked to consider, are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party. This is not to say that there are not cases where the merits can be determined and no order for costs can be seen to be the appropriate order; but in such cases that order is not a default order, but an order made on the merits.

In this particular case, with quite a complex history, the Defendant had argued that
i) the respondents settled on the assumption that there would be no order for costs.
ii) There had been a change in the perceived legal position as a result of the Supreme Court’s decision in R (A) v Croydon in November 2009.
ii) There was a substantial amount of evidence and the issue was diffcult, including the change in the weight to be given to Dr Birch’s views, following the judgment in R (A) v Croydon and R (WK) v Kent County Council [2009] EWHC 939 (Admin).

This being in effect a restatement of the Boxall based arguments that had been successful at first instance.

The Court of Appeal’s view was summed up by Stanley Burton LJ as follows:

The respondents’ maintenance of their position was entirely reasonable while the law was as it was generally thought to be before the decision of the Supreme Court in R (A) v Croydon. That decision led eventually to the order His Honour Judge McMullen QC of 26 July 2010. The respondents then had to reconsider their case, if they had not already done so. The appellant’s reliance on the evidence of Dr Birch may have been ill-advised, but ultimately it was his case, based on his account of his age, that prevailed. The respondent agreed not merely to re-assess his age, but that his age was as he contended it to be: i.e., they conceded the entirety of his claim.

Costs to the Claimant.

Comment
The judgment refers to Sir Rupert Jackson’s cost review, where he states

‘The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me ….
. . . in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant’s costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order.’

The Judgment also highlights the increasing number of cases settled save for costs, where the courts have had to deal with written submissions on costs. This increase was clearly something of which the Court of Appeal disapproved.

The result, being an extension of Bahta but falling perhaps just a little short of the Jackson proposals, is very useful for claimants. It makes clear that the usual Defendant arguments (e.g. that settlement was a practical or commercial decision, that it had nothing to do with the merits of the claim and that it was not at all clear that the Claimant would win), will not be sufficient to result in no order as to costs. The usual principles of civil litigation costs will apply. Boxall is effectively distinguished as being a case where the Claimant had only succeeded on a lesser part of the Claim.

The Defendant’s frequent tactic offer of a settlement on the basis of no order as to costs was always difficult for the Claimant’s solicitors to resist, given the client’s interests. However, this judgment now puts any settlement negotiations on the basis that the default position is that the Claimant should have their costs and that the Defendant will have to have a very strong reason to seek to depart from that.

The same principle should apply to s.204 appeals, as they are based on judicial review principles. There seems to be no good argument why a s.204 appeal should not have the ‘ordinary civil litigation principles’ apply equally.

Congratulations to Robert Latham and Hansen Palomares for the appellant on this result and for finally bringing some sanity to this costs issue.

Mago

The applicants in Mago held tenancies for life of flats within Bosnia-Herzegovina (with the exception of Mrs Mago, whose husband was the tenant) and they were compelled for varying reasons to leave their  homes following the outbreak of the war in Bosnia-Herzegovina in 1992. Security of these flats could be lost in a limited range of circumstances, including where the flat was left unoccupied for a continuous six month period or more. Once the tenants left, their properties were treated as abandoned by the authorities.

After the end of the war, the applicants made claims for restitution of their former homes. The Statute under which they made these claims contained an exception for those who served in foreign armed forces after 19/5/92. The majority of the applicants were members of the Yugoslav People’s Army and their claims and appeals were dismissed because they fell foul of this exception. The applicants petitioned the ECHR alleging breaches of Art 1 Protocol 1, Article 8 and Article 14.

The Court held that there had been no violation in three of the complaints as the applicants in question had been provided with alternative flats in Serbia and Montenegro. Although the deprivation of property rights might in normal circumstances lead to a finding of a violation, the exceptional circumstances of the case and the fact that the loss of the accommodation was the result of war and the dissolution of the former Federal Republic of Yugoslavia meant that the Respondent was under no obligation to make reparations under Art 1 Protocol 1 (para 104)

In Mrs Mago’s case, the Court held that the exception had been incorrectly applied as she was entitled on her divorce from Mr Mago to inherit the rights to the flat. Mrs Mago was not involved with any foreign forces and the Court accordingly held there had been a breach of Art 1 Protocol 1. The two remaining applicants (Radovic and Krstevski) had been members of the VJ forces and the Court accepted the argument that membership of certain armed groups depended largely on one’s ethnic origin. The Court held that the measures depriving the applicants of the right to restitution had the effect of treating individuals differently on ethnicity grounds and there could be no justification for deprivation in these circumstances. The Court found a violation of Art 1 of Protocol 1.

The overall award ranged from EUR 58000 to 90000.

Yordanova

This claim was brought by members of the Bulgarian Roma community, who inhabited vacant land in a district of Sofia from the 1960s onwards and constructed tenements (without the permission of the authorities) for between 200 and 300 people. The State sold the land occupied by the community to a private investor in 2006 and the Courts ordered the community’s expulsion on the grounds that they had no proprietary interest in the land, despite the time they had already lived there with the State’s acquiescence.

Nevertheless, the eviction was delayed pending a decision whether they should be rehoused and the applicants in the meantime petitioned the ECHR on the grounds of breaches of Art 1 Protocol 1, Articles 3, 8 and 14.

In deciding under Art 8 whether the authorities were pursuing a legitimate aim, the Court rejected the applicants’ argument that the State was motivated by a racist agenda and it accepted that the buildings were unlawfully built, that they were structurally unsafe and sub-standard and that there were inadequate sanitary facilities.

The relevant question for the Court was whether expulsion was necessary in a democratic society. The Court noted that alternative methods of dealing with the risks to health and safety had not been properly explored (for example legitimation of the community’s occupation of the land, improving sanitation and providing adequate re-housing). The Respondent was also criticised for describing the risk of homelessness as “irrelevant” when the principle of proportionality required due consideration to be given to the consequences of removal (para.126).

Furthermore, the Court recognised (para. 129) that “Such social groups, regardless of the ethnic origin of their members, may need assistance in order to be able effectively to enjoy the same rights as the majority population…..In the context of Article 8, in cases such as the present one, the applicants’ specificity as a social group and their needs must be one of the relevant factors in the proportionality assessment that the national authorities are under a duty to undertake.”

This factor provides an important qualification to the principle that there is no duty under Article 8 to be provided with a home and that “an obligation to secure shelter to particularly vulnerable individuals may flow from Article 8 of the Convention in exceptional cases”.

Accordingly, the Court held there to be a violation of Article 8 and it declared that either the 2005 order be repealed or it be suspended pending implementation of Convention-compliant measures (the Court having recognised that Art 8 gave no right to occupy land unlawfully in perpetuity). No damages were awarded.

Footnote

The ECHR has recently posed questions to the parties in the controversial night-time care case of McDonald v UK, namely:

1. Did the withdrawal of the night-time care service interfere with the applicant’s right to respect for her private life under Article 8 of the Convention? If so, has there been a violation of Article 8 of the Convention (a) from 17 October 2008 to 4 November 2009; and (b) from 4 November 2009 onwards?

2. Was the respondent under a positive obligation under Article 8 of the Convention to provide the applicant with a service which enabled her to live with dignity? If so, in withdrawing the night-time care service was it in breach of this obligation?

We’ll stay alert for any developments in this one.

The background was that a long standing secure tenant had lived in her flat with her three children. Her youngest son aged 19 had been involved in some offending including use and possession of cannabis and had some connection with firearms and ammunition found near the premises. B&D sought possession for both rent arrears and antisocial behaviour. On the first consideration, the court granted an ASBO against the younger son and adjourned the possession claim. Then when the matter came back on, the younger son had been involved in further offending and had breached the ASBO. However, just before the returned hearing, the Tenant had arranged for him to reside elsewhere and while she conceded that the grounds for possession were made out, she asserted that her son would continue to live elsewhere thereby ceasing the nuisance and sought a suspended order. The Judge appears to have had none of this, finding that the Tenant’s actions were too little too late and that he had no confidence that she could do anything to control her son’s escalating conduct. He duly made an outright possession order. She appealed on the basis that the Judge had failed to properly consider either the measures she had put in place to deal with the problems and her own personal circumstances.

The appeal was dismissed. There had been no error of law and the appeal was an attack on the exercise of discretion by the Judge. The Court of Appeal commented that while the judgment did not expressly state that the Judge had taken account of the measures put in place by the Tenant, it was clear from the judgment overall that he had  a very clear grasp of the case and it was material that he had adjourned the first hearing having impressed upon the Tenant how serious he found the antisocial behaviour to be. There were no grounds to interfere with the judgment.

This is a good example of the ever shortening judicial fuse on antisocial behaviour and may signal that advisers need to be giving much starker warnings much earlier to clients in this position.

This was a judicial review of RBK&C’s refusal to provide support under s.21 and s.29 National Assistance Act 1948 and indeed to carry out an assessment under s.47 of the National Health Service and Community Care Act 1990.

Mr De A is a Portuguese national. He lived in the UK from 1998 to 2001 and from 2008 to date. He worked during the first period and for a year after his return. Mr De A had contracted HIV and AIDS. His health deteriorated so that he was not able to work. His prognosis in October 2010 was that he had about a year to live. At the time of the first hearing in this case in November 2011, his prognosis was about 6 months.

Mr De A was evicted from his private accommodation. With the help of friends he was provided with food and accommodation in a hostel for a while, but this could not be sustained. Mr De A applied to RBK&C for assessment and assistance under the National Assistance Act 1948. His sole income was DLA, the DWP having decided he was ineligible for Income Support.

After a couple of assessments, RBK&C decided that he was not in need of care and assistance and in any event, he was ineligible by reason of para 5, Schedule 3 of National Asylum and Immigration Act 2002 as he “has the nationality of an EEA State other than the United Kingdom”.

Mr De A applied for judicial review.

ON the need for care and assistance RBK&C had found that Mr De A was, at the times of the assessments, able to look after himself and had no need for care and assistance. This despite medical reports and Mr De A’s own report being that he needed significant support with shopping, personal hygiene, laundry and meal preparation. IN the JR, RBK&C’s case was that

the evidence indicated that his needs fluctuated. As at the date of assessment, the Defendant [Mr De A] was able to live independently with minimal support, and therefore was not “in need of care and attention”. The fact that he might deteriorate at a later date did not trigger a duty under s.21(1)(a) at the present time.

The Court rejected this line of argument

65. In my judgment, the Defendant misdirected itself in the way it assessed the Claimant’s needs under s.21(1)(a). First, it is not a pre-requisite of eligibility under s.21(1)(a) that the person is incapable of performing a domestic task himself. Lady Hale gave the example of “household tasks which an old person ….can only perform with great difficulty”. In the Claimant’s case, it was sufficient that, because of his fragile condition, he reasonably required support with domestic tasks, such as shopping, cleaning, cooking etc.

66. Secondly, the nature of the Claimant’s illnesses meant that the level of his fatigue, weakness, pain and secondary infections fluctuated from time to time. It followed that his ability to look after himself also fluctuated, from day to day, from week to week and from month to month. This is not an unusual feature of long-term illnesses, and LAC 93 (10) paragraph 2(5) expressly approved the provision of accommodation for the purpose of caring for those who are ill. A fluctuating need does not necessarily take a person outside the scope of s.21(1)(a). In Mani for example, the claimant needed help with household tasks “on days when he is in pain” (at [2]), i.e. not all the time.

The principles in R (M) v Slough Borough Council [2008] UKHL 52 should be applied, both as to the threshold for s.21(1)(a), met “as soon as a person can be said to be in need of some care and attention, even to a relatively small degree” [Lord Neuberger in M] and considering current and prospective need:

Having regard to the principles set out in M in relation to current and prospective need (at [35], [55]), it will be a question of fact in each case whether a person’s condition is such that he should be treated as “in need of care and attention” even though the extent of his need for care and assistance fluctuates from time to time. For example, in R (Nassery) v Brent LBC [2011] EWCA Civ 539 the Court of Appeal upheld the Council’s assessment that, despite the claimant’s sporadic past episodes of mental disorder, he was not “in need of care and attention” at the time of its assessment. In this Claimant’s case, given the seriousness of his illnesses, his ongoing, debilitating physical symptoms, his frequent periods of acute illness requiring hospitalisation, and his very poor prognosis, I consider it was irrational for the Defendant to conclude that he was not “in need of care and assistance” when there was ample evidence that he had a continuing need for support in day-to-day living, albeit fluctuating in extent from time to time, depending upon his state of health.

On the issue of eligibility and human rights, it was common ground that Mr De A was ineligible for assistance under s.21(1)(a) NAA by reason of Schedule 3 to the National Asylum and Immigration Act 2002. The issue was how far it was necessary to provide assistance in order to avoid a breach of Mr De A’s convention rights, specifically Article 3 and Article 8.

RBK&C conceded that if a need for assistance was found then there would be a potential breach, following R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396. However, RBK&C maintained that such a breach could be averted by Mr De A’s return to Portugal, where he would be eligible for appropriate support services, relying on R (Kimani) v London Borough of Lambeth [2003] EWCA Civ 1159 and N v UK (2008) 47 EHRR 885.

RBK&C further argued that

in deciding the human rights issue, the court’s role was limited to determining “whether there is an error of law in the council’s human rights assessment on traditional judicial review principles” (skeleton argument, paragraph 5). It was for the Defendant to decide, under paragraph 3 of Schedule 3 to the NIAA 2002, whether the making of s.21(1)(a) arrangements was “necessary for the purpose of avoiding a breach of a person’s Convention rights”. The Court did not have the information required to make this judgment, nor was it entitled to substitute its judgment for that of the Defendant. It followed from this analysis that the issue had to be decided on the basis of the evidence available to the Defendant at the date it made its human rights assessment, in October 2011, not 6 months later.

The Court held that this was too restrictive an interpretation of the Court’s role:

As the Court is itself a public authority for the purposes of the Human Rights Act 1998, it is subject to the duty in s.6 not to act incompatibly with Convention rights. It must also ensure that other public authorities, such as the Defendant, do not act incompatibly with Convention rights. This is an essential part of the way in which the ECHR is enforced in domestic law.

Article 3 is an unqualified right. It was not proper that the Court should not defer to the judgement of the local authority, “if the Court is satisfied that the Defendant’s acts or omissions are exposing the Claimant to an imminent risk of suffering cruel, inhuman or degrading treatment, it must act to prevent such a breach of Article 3 from occurring”. And

When considering a qualified right, such as Article 8, the Court must consider the legitimate aims of the decision-maker and the proportionality of the interference with the right to family and private life. However, it should not adopt a traditional judicial review approach.

Huang v Secretary of State for the Home Department [2007] 2 A.C. 167 and Pinnock adopted.

On the evidence, Mr De A’s physical and psychological condition, his experimental treatment and the presence of his support network in England all strongly suggested a considerable degree of suffering if her were to return to Portugal at this stage. The available services in Portugal, and the time it would take to receive them, were not comparable and would involve delay.

Although Portugal is an EU country and signatory to the ECHR, with a health and welfare system, it is too late for this impoverished Claimant to access the immediate support which he needs on his return, because of his weakened physical condition; his vulnerable mental state; the absence of any friends or family in Portugal to assist him; and the ‘cumbersome’ and slow assessment procedures in Portugal (for exemption from health care charges, eligibility for financial benefits, and any type of accommodation). The Defendant’s offer of financial support for 4 weeks is insufficient, as the evidence is that it will take much longer than that for him to obtain the accommodation and benefits he needs, and so there is, in my view, a real risk that the Claimant will end up sleeping rough on the streets. As M said; “[t]he effect of what would essentially be a forced return of a sick man …would be to condemn this man to a very likely relapse, a hastened death, and a lonely end to what has been a brave struggle to live with dignity.”

Following D v United Kingdom (1997) 24 EHRR (and BB v France (see N v UK at D68), the case was exceptional because Mr De A was at the end of his life. It was not simply a matter of the lack of availability of treatment to prolong life, as in N v UK App. No. 26565/05. The case fell within the exceptional class described by Lady Hale in N v Secretary of State for the Home Department [2005] 2 AC 296 [at 69]:

“…the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”

Refusing to provide accommodation and support, but forcing Mr De A to return to Portugal would be a breach of Article 3, involving inhuman treatment.

Article 8 was also interfered with, but the interference was lawful under Schedule 3 to the NIAA 2002. The question was therefore whether the interference would be necessary and proportionate.

RBk&C argued that “it is exercising a legitimate aim, in the interests of “the economic well-being of the country” in seeking to minimise its expenditure on social services, and prioritising its scarce resources for the benefit of UK nationals”. R. (Clue) v Birmingham City Council [2011] 1 W.L.R. 99 in support.

Weighing against this was the likely limited time support would be required and the costs that RBK&C would incur in facilitating Mr De A’s move to Portugal. Any saving to the public purse would be minimal.

In addition, it was appropriate to weigh in the balance that Mr De A had entered the UK lawfully and worked here.

Held on Article 8:

In my judgment, the Claimant [Mr De A] is justified in submitting that any potential saving to the public purse will be minimal and does not reasonably justify a decision which will have such severe consequences for the Claimant. The Claimant’s terminal illness means that he faces an undignified and distressing end in Portugal, struggling to find any accommodation and means of support, and parted from his existing support network of friends and healthcare professionals.

Held overall:

a) the Defendant’s decision, of 27 October 2011, that the Claimant had no eligible needs requiring care and attention within the meaning of s.21 NAA 1948, was unlawful;

b) the Defendant’s decision, of 27 October 2011, that it was not necessary, within the meaning of paragraph 3 of Schedule 3 to the NAIA 2002, to make arrangements for the Claimant under s.21 NAA 1948 for the purpose of avoiding a breach of his Convention rights, was unlawful;

c) the Defendant’s refusal to make arrangements for the Claimant under s.21 NAA 1948 is incompatible with the Claimant’s rights under Article 3 and Article 8 of the ECHR, contrary to s.6(1) Human Rights Act 1998.

But it caught my eye. To be fair, one cannot always tell from a short judgment of this kind exactly what happened, but it gives the impression that landlord and tenant law was, at best, misunderstood. So it seemed like a golden opportunity to set the record straight.

The defendant’s father and mother had lived in the property under an assured tenancy. Sadly, the father died. The mother succeeded under s.17 of the Housing Act 1988. Later on her son, the defendant, came to live with her and look after her. The mother died. The landlord eventually decided that the defendant would not be allowed to carry on living in the property and served a notice to quit which duly expired. They claimed possession on the basis that the son was a trespasser.

But why? Assured tenancies are not magic. They have some magical properties given to them by the Housing Act 1988 but underneath they are still perfectly normal tenancies which means they are an estate in land capable of being inherited.

This means that when the defendant’s mother died, her tenancy would pass under her will or intestacy. If the mother had not been a successor, the magic of s17 might have come in to play, but she was so it did not. From the facts of the case it seems overwhelmingly likely that the son was her heir. He would then inherit the tenancy and become the tenant.

As an aside there are some subtleties here which I am not about to delve in to, such as the nature of a heir’s rights under an intestacy and the role of the Public Trustee. Readers will be familiar with the and all the usual rules about giving notice after a tenant has died.

It seems likely that the defendant was a tenant of the property and, since he lived there, almost certainly an assured tenant. You cannot end an assured tenancy by giving notice to quit. It may be that the district judge inquired into this possibility and the matter was dealt with but not mentioned in the judgment, but it really ought to have been.

The right way to evict an heir in these circumstances is of course to use Ground 7 of Schedule 2.

The building in question was built in 1888 and consisted of a basement, ground and five upper floors. It was originally built as (in effect) six flats, with a housekeeper’s flat and three small shops.  The question was whether this could reasonably be called a house. The judge held that it could not. It was, in truth, a block of flats with three shop units. It was not a house which had been divided into flats (which would have been capable of being enfranchised).

An appeal to the Court of Appeal was dismissed. It was important to remember that the question was whether it could “reasonably” be called a house. It was clear that a purpose built block of flats could not reasonably be called a house.  Depending on what happens in Hosebay, there may be a further appeal.