Archive for the 'Introductory and Demoted tenancies' Category

Five go to Mornington Crescent

Published by Dave on 05/04/2010 in ASB, FLW case note, Homeless, Introductory and Demoted tenancies, Licences and occupiers, Possession and Uncategorized. 9 Comments

[aka Three out of the Five go ever so slightly bonkers on the way to Mornington Crescent, and one of those three gets lost on the way]

On the Radio 4 show, I’m sorry I haven’t a clue, there is a game called Mornington Crescent, in which there are no rules and the outcome is irrelevant as the show is more important than the game.  It is a surreal game in which the winner is the first person to say “Mornington Crescent”.  I was reminded of that game when reading the five cases wrapped up in Salford City Council v Mullen [2010] EWCA Civ 336, which J termed “the Famous Five“.  They each raise the relevance and extent of gateway (b) in two different factual scenarios: (1) termination of a non-secure tenancy/licence occupied by virtue of section 193, Housing Act 1996 (Powell v Hounslow LBC; Manchester CC v Mushin); and (2) tenancies terminated under the introductory tenancy regime contained in Part V, Housing Act 1996 (Hall v Leeds CC; Frisby v Birmingham CC; Mullen v Salford CC).  Gateway (a) was not argued before the CA in these cases because the CA is bound by Kay and Doherty, and all of the five occupiers reserved the right to argue gateway (a) in the SC.  These are cases in which there are no rules – or, at least, counsel for three of the five local authorities (Salford did not appear) argued that Wandsworth LBC v Winder [1985] AC 461, which forms the basis of gateway (b), didn’t decide, erm, what it did decide – and the outcome is entirely irrelevant – as the main show is the nine person SC in Pinnock, with which the famous five were seeking to join (perhaps to make a suspicious six).  However, the outcome was that four out of the five local authorities won; Manchester lost and one will need to look into the mind of Jon Holbrook to find out why.  Permission to appeal was granted in Powell and Hall as the best specimens, so to speak; permission was refused, subject to submissions, in the others.

The first thing to answer, then, is why did the CA bother at all and not just wave the cases through. Their line was that the SC should have a broad range of cases and county courts need urgent guidance (an understatement, I’d say) about how to deal with gateway (b) defences to possession proceedings.  Whether those courts find that guidance here or not is open to doubt.

There are five questions of law considered: (1) does section 38, County Courts Act 1984 exclude a gateway (b) defence in all cases? (2) do the particular statutory schemes exclude the taking of a public law defence in the county court? (3) does gateway (b) involve a full proportionality review? (4) How wide is gateway (b) in the context of the specific statutory schemes? and (5) what “decision” or “decisions” can be challenged through gateway (b) (that is, just the decision to serve the notice to quit [ntq] or all decisions leading to possession – this is the ongoing battle between two lines of CA judgment, respectively Doran v Liverpool CC  [2009] EWCA Civ 146and Central Bedfordshire DC v Taylor [2009] EWCA Civ 613, discussed also in our note of Barber v Croydon LBC [2010] EWCA 51).  Waller LJ gives the judgment of the CA, but Patten LJ gives a supporting judgment which specifically considers the position in Manchester CC v Mushin.  This was the only case lost by the local authorities and was, if I might say, surreally argued – more of that at the end because it’s just weird and not exactly on point as it turns out.  Waller LJ takes each point in turn as follows:

Section 38 ([47]-[49])

Section 38 is the curious provision which disentitles a county court from giving the remedies of certiorari and mandamus.  From that small seed, it was argued by Hounslow, Leeds and Manchester that a gateway (b) defence is not open to a Defendant at all in the county court and, in the alternative, Wandsworth LBC v Winder [1985] AC 461, properly analysed, only gives rights to defend private rights using public law.  These amount to possibly the most bizarre submissions I’ve ever come across from mostly ordinarily sensible people.  They could not possibly succeed without unwinding twenty five years of case law, the whole of gateway (b) (because one would have to make an application for permission to bring a JR if they were right), not to say Doherty etc.  Clearly the CA were bound and this was a hopeless argument.  The only local authority counsel who comes out of this well is Jonathan Manning who did not take this point at all and rightly so.  Yes, gateway (b) can be procedurally messy because of the remedy problem caused by section 38, but that does not mean it cannot exist.

Statutory Schemes ([50]-[55])

This submission was stronger for the local authorities with a muted “Mornington Crescent” being raised in the introductory tenancy cases.  The submission here  was that the statutory schemes precluded the raising of a gateway (b) defence to the possession claim.  The homelessness cases were never going to succeed because there was CA authority in the way (Barber and McGlynn v Welwyn Hatfield DC [2009] EWCA Civ 285).  Hounslow nevertheless foreshadowed their SC argument with the claim that gateway (b) only arises in exceptional circumstances where domestic law contains an insufficient safeguard against an Article 8 violation, a proposition roundly rejected on authority.

The introductory tenancy cases are successful on this point in the sense that the statutory provisions make clear that the county court judge has no discretion but to grant a possession order once the procedural elements around the s 128 notice have been complied with (s 127(2)).  Manchester CC v Cochrane [1999] 1 WLR 809 and R(McLellan) v Bracknell Forest BC [2001] EWCA Civ 1510 stand in the way of the alternative construction argued for the occupiers (ie that they could bring their gateway (b) defence in the county court, rather than by commencing a fresh JR application).  Although it was argued that Doherty had “swept away” Cochrane and McLellan, the CA decision in Pinnock stood in their way, particularly as the introductory tenancy and demoted tenancy regime are essentially identical (at [54]).  This point, then, was won by the local authorities and leaves us with a rather awkward scenario (what if the County Court refuses an adjournment, but there is a successful permission application for a JR?).

Proportionality ([56]-[61])

The next two questions concern the scope of a gateway (b) review.  What degree of scrutiny/intensity does it entail?  It will be remembered that Lord Hope in Doherty at [55] said that “… it would be unduly formalistic to confine the review strictly to traiditional Wednesbury grounds” but that just begs the question.  The CA hold that it does not extend to a full proportionality review, citing Doherty as their authority.  That really foreshadows the real issue which is that it’s beyond Wednesbury but less than proportionality, and we know that some judges have said that you can’t really pass a sliver of paper between Wednesbury and proportionality, which leads to …

Width of Gateway (b) ([62]-[67])

This section begins with a citation from Dyson LJ’s judgment in Smith v Evans [aka Buckland] [2007] EWCA Civ 1318, at [44], that “It will only be in a truly exceptional case that it will even be seriously arguable that [a gateway [b)] defence will succeed”.  They go on to quote extensively from Lord Bingham in Kay because there’s not much difference between him and the majority in Kay, the need for highly exceptional circumstances even on his braoder formulation, and his judgment was approved by the ECHR in McCann.  The question this gives rise to is the extent to which personal circumstances are and can be relevant in a gateway (b) defence.  The answers are different depending on the statutory scheme, according to the CA.  As regards the introductory tenancy regime:

… the question will be whether there is some highly exceptional circumstance which should lead to the County Court adjourning the matter so that Judicial Review can be applied for in the Administrative Court. Circumstances personal or otherwise which Parliament must have contemplated would be likely to be present in the context of such a scheme could not be considered as ‘exceptional’ never mind ‘highly exceptional’. Thus for example it would be contemplated that difficult questions of fact as to whether anti-social behaviour had occurred or not would be something that Parliament would contemplate as likely. A Local Authority would not have to conduct a full inquiry to establish the truth or otherwise of such allegations knowing that those are just the situations in which getting witnesses to attend and give evidence would be difficult. With allegation and counter-allegation the Local Authority has to take a decision and unless it could be shown that it was arguable that no reasonable authority with the duties it had to perform in relation to managing its social housing could have taken the decision, there should be no question of adjourning the case until a tenant had brought judicial review proceedings.

With the homelessness cases, a different approach was required because of the different statutory scheme which enables a defence to be run in the county court, andthe ntq cannot be challenged directly through the review procedure.  But: the gateway (b) defence would need to be highly exceptional if the local authority were going to continue to provide accommodation, perhaps in a smaller place; there is an internal review of certain decisions under section 193 available through which the occupier can make full representations; and it should be remembered that the purpose of the homeless legislation is limited.  In summary, then, Barber was an example of the kind of case which is highly exceptional (although see below) because the local authority were unaware of Barber’s mental illness when they served the ntq but: “Anything less than that kind of risk would be unlikely to qualify as so exceptional as to provide an arguable gateway (b) defence in the context of the homeless legislation” (at [67]).

Decision or decisions? ([68]-75])

This is the most interesting aspect of the decision, to me at any rate.  The question is whether one can only challenge the ntq through a gateway (b) defence, as suggested in Doran, or whether each separate decision taken by the local authority (or RP) on the way to possession is defendable through gateway (b), as in Taylor and Barber.  I have never seen how it can be as limited as Doran suggests, but it is particularly interesting to see the SoS arguing that Doran is correct.  They do so for three reasons: Doran allows the facts as they appeared or should have appeared to be considered, and therefore is not as limited as we thought; the Taylor approach causes practical problems of its own in enabling occupiers to lengthen possession proceedings, making them more expensive and costly and here, they use the example of ASB stopping after the ntq or at a later stage before possession; finally, the whole point of gatewway (b) was that the ntq or a rent demand was ultra vires and void as in Winder (which rather repeats the modified section 38 argument).  The CA reject these submissions (at [73]) and felt bound by Taylor as it had been accepted in Barber (at [74]).  They reject the first submission because it does not deal with a wholly new event occurring after the ntq, such as the occupier becomes seriously ill.  They reject the second submission because:

… we do not accept there is a practical difficulty in a situation in which an introductory tenant brings forth facts which show he has now improved his behaviour; a local authority will be bound to consider whether it should continue with the  proceedings but it will not be arguable that it is unreasonable for the Local Authority to continue with them having given the tenant his or her chance and with others waiting for accommodation.

And finally …

there’s Manchester CC v Mushin.  In summary, Mr Mushin’s wife and family left the home provided by Manchester under Part VII due to Mr Mushin’s domestic violence.  Manchester served an ntq and Mr Mushin relied on a gateway (b) defence on the basis that he did not commit domestic violence and he wanted to stay at the property in case his wife and children reutrned.  At the trial Manchester relied on Mr Mushin’s over-occupation but conceded that, if it was proved that domestic violence had been the reason for the service of the ntq, then a gateway (b) defence was open to him and should succeed if he had not had the opportunity to rebut the charge of domestic violence.  Manchester sought to withdraw those concessions intheir amended notice of appeal and skeleton.  But Jon Holbrook, for Manchester, decided not to seek to withdraw them preferring apparently to attack the judge’s findings of fact on this point.  As Waller LJ put it, “… the argument should have been that because Mr Mushin was in fact in accommodation for a family whereas he was now single, the court should have granted a possession order and  any challenge to unsuitability should have been brought by Mr Mushin under the relevant sections applying to the homeless” (at [43]).  Indeed, “there was nothing highly exceptional about Mr Mushin’s position – it possibly would have been if his wife and family wanted to come back and live with him, but the local authority continued its claim. 

Was there in reality any evidence on which the county court judge could base his finding that the ntq had been served because of the domestic violence?  Well, yes, actually, quite a lot.  Granted there had been two ntqs, only the first of which was relied on; although the housing officer at the time said that he thought it had been served on the basis of underoccupation, against that was the case history and the fact that the housing officer was one cog in the wheel, so to speak.

Conclusions

Forgive me some brief concluding thoughts, perhaps taking account of some of the observations made at last week’s conference as well (not really a law practitioner’s event, but lots worthwhile going on).  What it boils down to is whether there is a highly or seriously arguable gateway 9b) defence in which personal circumstances seem to play some role at least.  Barber is regarded as exceptional, but this is, of course, an empirical question and I wonder whether that notion of “exceptional” is actually brought out in the everyday lives and practices of local authorities and RPs, as well as occupiers.  We are still left with the real bottom-shifting question: what is exceptional?

Catching up with LAG

Published by NL on 16/01/2010 in Assured Shorthold tenancy, Disrepair, FLW case note, Housing law - All, Introductory and Demoted tenancies, Unlawful eviction and harassment and assured-tenancy. 6 Comments Tags: , .

The January 2010 Housing updates in Legal Action have some County Court case reports that hadn’t reached us. You will naturally have already read them in Legal Action, but for our archives…

Tenancy Deposits
O’Brien v Hill Barnet County Court 22/09/2009
Mr O’Brien granted Mr Hill a 12 month AST on 9 June 2008. He served a s.21 Notice on 12 June 2008. On 2 July 2008, the landlord received the payment of the deposit from Barnet Council, which had agreed to pay the deposit on Mr Hill’s behalf, and the deposit was protected on 7 July 2008. Some time later Mr O’Brien brought accelerated possession proceedings relying on the June 2008 s.21. Mr Hill defended on the basis that the s.21 was invalid as at the time it was served there had not been compliance with s.213 Housing Act 2004.

DJ Silverman ordered that the claim be struck out on the basis that the s.21 was invalid, but gave the Claimant permission to restore the claim if he thought that the order should not have been made (!). Unsurprisingly, Mr O’Brien did apply to restore the claim and this time DJ Silverman made a possession order, accepting that no deposit had been received at the time of service of the s.21 and that therefore s.213 did not apply.

This surely has to be the right decision and the first strike out order is frankly a bit odd. It appears DJ Silverman wasn’t entirely happy with it at the time either.

Harassment and Unlawful Eviction Quantum
Odera v Iqbal Luton County Court 3 September 2009
The Claimant had an AST of a room in a three bedroom house with shared facilities, where she lived with her 11 year old daughter. The landlord allegedly harassed her throughout the tenancy by entering without warning. In January 2008, he gave her a defective Notice. The Claimant began looking for alternative accommodation. On 17 February, she backed her belongings and told the Defendant landlord she was on her way to pick up keys for new accommodation. The new landlord refused to give her the keys unless she handed over the full deposit. She returned to the premises. Later that evening, the Defendant and another man removed her belongings and put them outside the property. The Defendant dragged the Claimant and her daughter out of the bedroom, down the stairs and out the property. The police were called but accepted the Defendants word that the Claimant had no right to remain. The police asked the Defendant to store the Claimant’s belongings until the next day (Top work there, Luton constabulary). The Claimant stayed in emergency accommodation, then for 3 days with her sister in Watford. When she returned to pick up her belongings, she found them discarded in the back garden, soaked and rain damaged.

At trial, the Claimant’s evidence was accepted. Damages:
£500 for breach of covenant of quiet enjoyment and trespass for the two weeks prior to the eviction.
£1000 for the assault and method of eviction.
£1500 aggravated damages, particularly in view of Claimant’s daughter witnessing the assault and being assaulted.
£1000 exemplary damages as the landlord sought to increase his income by letting the property as a whole.
An inquiry into special damages – later settled at £750.

Cashmere v Walsh, Downing and Veale Central London County Court 27 October 2009
The Claimant had an assured tenancy of a flat in Docklands from 1990. In 2000, Downing bought the flat as bare trustee for Walsh. Veale was Downing’s mother and a business associate of Walsh.

Between 2000 and 2003 there was minor disrepair at the flat (defective light fitting, non functioning storage heater). There was further disrepair from 2003 onwards – a further non-functioning heater, broken handle on the toilet cistern following a refurbishment of the bathroom, and poor floor covering in the bathroom. The Claimant began spending more time at his girlfriend’s home. Downing and Veal promised to carry out repairs. In December 2007 they asked the Claimant to move out for the duration of works. The Claimant moved out and allowed the landlord to clear the flat of his belongings which were piled in the corridor. The works were completed in a week, including a new front door and lock. When the Claimant asked for a copy of the key he was told he could not have it because there were rent arrears. After being turned away by the Defendants on several occasions, the Claimant engaged solicitors. Pre-action letters received a response from Walsh saying that he was now the owner of the flat and had a new tenant in. On this basis an application for re-entry was not made. The annual rent was £10,920

On a claim for damages, the Court acknowledged that there were ‘historic’ rent arrears of about £7,000 and that the Claimant had caused noise nuisance to his neighbours, but neither of these were the reason for the eviction. The Defendants had chased housing benefit, it was not until the locks had been changed that they demanded payment from the Claimant personally. The true reason for the eviction was the desire to sell the flat, which was achieved after the eviction. Damages under s.27 and s.28 Housing Act 1988 were appropriate, without deduction under s.27(7)(a). Damages on this head £47,000 against Walsh.
Disrepair – £9,200 (4% of rent for the first 3 years; 15% of rent for the next 5 years).
£8,000 against Downing and Veal for their part in the deception and the refusal to hand over keys, which amounted to trespass. The Claimant had taken over 18 months to find suitable alternative accommodation.
£500 for failure to return a deposit.
£6,515 against Walsh and Downing for the loss of the Claimant’s belongings, which were never recovered.
Aggravated damages of £10,000 against all three Defendants. The Claimant had been duped into handing over the keys, even assisting in the removal of his belongings. His belongings had been dumped and the Defendants never told the Claimant where they were. The Defendants has lied about the whereabouts of the belongings to the Claimant’s solicitors, had denied the eviction and denied control over the flat at the relevant time. They had also lied about a new tenant being in place.

Introductory Tenancies
Plymouth City Council v Hill Exeter County Court, 6 November 2009
Mr & Mrs Hill were introductory tenants. Following a valid s.128 Housing Act 1996 notice on grounds of rent arrears, a possession order was made. Plymouth applied for a warrant and a bailiff’s appointment was set. The Hill’s sought further time to pay the arrears and applied to suspend the warrant. A DJ ordered the warrant to lie on the file, as an administrative act. There were two further applications for bailiff’s appointments, two further applications to suspend and two further orders that the warrant lie on the file. At a further hearing, some 5 months after the date of possession, the DJ ordered that the warrant lie on the file for 21 days pursuant to his powers under s.123 County Courts Act 1984. Plymouth appealed on the basis that the power to order the warrant lie on file did not exist, or if it did, the DJ could not suspend execution of the warrant beyond the 6 week period specified in s.89 Housing Act 1980.

Held by the Circuit Judge:
The Court could hear the appeal although the outcome was now academic.
The DJ was exercising a judicial power, not an administrative one.
The power to order that the warrant lie on file in this case did not exist.
The correct power was the one to suspend and this was limited to being up to 6 weeks under s.89 HA 1980 and there was no judicial or administrative power to delay it after that time.

As ever, thanks to Jan Luba QC and HHJ Madge for the updates.

Pinnock Permission

Published by NL on 11/12/2009 in Housing law - All, Introductory and Demoted tenancies and Possession. 6 Comments Tags: , , .

We’ve just heard that Pinnock in Manchester CC v Pinnock has been given permission by the Supreme Court. Our note of the Court of Appeal case is here ([2009] EWCA Civ 852). We had wondered about permission after Central Beds v Taylor was refused.

I would have thought anyone defending possession proceedings for an introductory or Demoted tenancy would be looking to stay pending Pinnock, at least in the absence of continuing ASB or other serious and pressing facts.

Garden Court North have a note here.

New Local Authority Allocation Guidance

Published by NL on 05/12/2009 in Allocation, Housing law - All, Introductory and Demoted tenancies and secure-tenancy. 2 Comments Tags: , .

DCLG has released the new Code of Guidance for Local Authority allocation of housing. There is a slightly unfinished page about it here and a press release here. The Code of Guidance itself is here [link to pdf].

We will come back to the Guidance in a proper post soon, but the stated principle is:

The guidance makes clear that first priority for housing must be given to those in greatest housing need. But it also encourages local authorities to make greater use of the existing freedoms and flexibilities to prioritise needs specific to their local area. It also encourages them to do more to involve and inform their communities when setting their local priorities so that local views are reflected in allocation policies.

By the way, since John Healy became housing minister, every single bloody press release begins “Housing Minister John Healey has today…”. This didn’t happen with Beckett, or even with Flint, and the relentless repetitive self-promotion, even claiming credit for decisions that far pre-dated his reign, is getting more than a little tiresome and perhaps somewhat counterproductive.

Unwelcome in the valleys

Published by NL on 14/09/2009 in ASB, Housing law - All, Introductory and Demoted tenancies, Possession and secure-tenancy. 0 Comments Tags: , , , , .

While we are in Wales and with thanks to the Garden Court housing bulletin, we report an Ombudsman’s decision Complaint against Cardiff CC 200702358 [pdf]

Mr Davies and Miss Brown complained about Cardiff Council’s failure to deal with noise nuisance and threatening behaviour from Mr Williams over a period of some years. All parties were Council tenants, Mr Williams lived in the flat below the complainants.

The Council’s failure to deal with Mr Williams had been the subject of a previous Ombudsman’s report in 2007 (200501496/7/8), which had made extensive recommendations on Cardiff’s handling of ASB. Mr Williams had been transferred, but to a nearby flat, in the course of this investigation.

Mr Williams had had an introductory tenancy when the initial complaints of noise nuisance where made – amounting to 8 months of near daily noise nuisance, supported by nuisance diaries and some witnessed by Council officers, before Mr Williams received ‘warnings’. There was also a police interview about threatening behaviour. All in the first year of Mr Williams introductory tenancy. Despite this, the Council confirmed Mr Williams secure tenancy. In 2006 there was an incident of threatening behaviour. The Council accepted Mr Williams account, but criminal charges were brought by the police and a conviction obtained. After the conviction, the Council served an NSP on Mr Williams, but took no further action.

Further complaints of noise and behaviour were referred by the Council to ‘Pollution control’ who declined to deal with out of hours complaints on the basis that ‘the case was too dangerous to be put to its “out of hours” service due to the perpetrator‟s violent history and the consequent risk to the safety of staff.’

From the beginning of 2007:

Miss Brown continued to submit nuisance diaries including one example from the 9 February to 23 March that had eleven separate incidents of amplified music and other disturbances; her other diaries were similar in content. In April 2007, Pollution Control served a noise abatement order on Mr Williams. Similar reports continued to be made through the year and by October witness statements were being obtained from Mr Davies and Miss Brown to support legal action by Pollution Control. An email between Housing staff and Community Safety at this time acknowledged that Miss Brown was in fear for her safety as she was the main complainant and had reported hearing Mr Williams make verbal threats to kill her and her boyfriend. The housing officer asked for advice from Community Safety on security measures for the flat and a community alarm and additional locks were provided.

In June 2008 Mr Davies and Miss Brown advised the Council that in the face of continuing complaints and lack of promised action by the Council that they had lost faith in its willingness to bring the nuisance to an end and they withdrew their witness statements and asked for a transfer instead. Pollution Control explained that they could not proceed with action under EPA without their involvement and tried to persuade them to continue but they did not do so. The Council took action to register the transfer request in November 2008 but Miss Brown had not been moved at the time of writing this report.

In October 2008 the Council transferred Mr Williams to another flat on the same estate which is in a nearby block and has windows facing the windows of the flat occupied by Miss Brown and Mr Davies. The Council said that the transfer was not connected with the complaints that had been made against him and had taken place within a timescale that was normal for that estate.

The ombudsman pointed out the range of options legally available to Cardiff, from ASBIs and the EPA through to Introductory and Demoted tenancies and eviction, and also to Cardiff’s policy, which included:

a description of the legal and non legal remedies available, examples of when each should be considered together with the grounds on which they could be sought and the burden of proof required. For example, it describes the Anti-Social Behaviour Injunction which would be used in an emergency to protect a victim or witness who had been threatened and for which the civil burden of proof, being “likely to have happened”, would be required. The grounds for seeking this remedy would be conduct that is capable of causing a nuisance or annoyance to any person and affects the housing management functions of a landlord.
The procedure includes a flow chart which directs staff to devise an action plan and to conduct a formal assessment of the complaint if it is not resolved.
It advocates weekly or monthly updates to the complainant at all stages of the complaint and speedy action at all stages; for example, where there has been violence or threats of violence or deliberate damage to property, the matter should be dealt with immediately but not more than 24 hours after the report. All emergency cases should be discussed with the Housing Team Manager within 24 hours.

This had clearly not happened at all.

The previous report had found that Cardiff left ASB to pollution control almost entirely.

The Council officers evidence was varied and disjointed. Notable was the District manager who was concerned that for housing officers:

a NOSP was regarded as a form of warning letter and that if there were no problems in the initial 28 day notice period, then it was not followed up and was sometimes even withdrawn.

Nobody had any idea why this case hadn’t been referred to the dedicated ASB unit and the newly appointed ASB specialist solicitor ws concerned about the lack of integration and about the tendency of housing officers to treat introductory and secure tenancies alike.

In a frankly damning conclusion, the Ombudsman found systematic failings:

i) Late referral of the case for consideration of possession proceedings and the lack of active engagement or consideration of management or legal remedies by the Housing Department, who relied on the Pollution Control section to take the lead in bringing the nuisance under control although many of the issues being complained of were breaches of tenancy rather than noise pollution issues.

ii) the

lack of adequate response to the problems during 2007 and up to October 2008, when Mr Williams was moved, this being after the implementation of the Council‟s action plan following the previous Ombudsman‟s report (para 23) which was completed in March 2007. The actions of its officers and interviews suggest that the lessons have not been fully learned from the last report and that further work to reinforce the action plan is still needed. I feel that in its response to the draft report the Council has not properly absorbed the chronology of complaints and has failed to take account of the evidence contained within its own files.

iii) the Council‟s failure to take advantage of the opportunity afforded by the fact that Mr Williams was on an introductory tenancy agreement when it received numerous complaints from Miss Brown from early in his tenancy and from another tenant complaining in very similar terms of eight months of nuisance from the time Mr Williams moved in.

iv) that

the Council says in its response to my draft report that it approaches introductory tenancies in the same way as secure ones, and I believe it needs to revisit the statutory provisions on this and be reminded of the purposes for which Parliament brought in introductory tenancies. Having examined the WAG guidance on which the Council relies in its response, I feel that it has quoted selectively from this document and that a more clear sense of what the document intends is obtained from reading beyond the lines quoted.

v) the failure to pursue Mr Williams for criminal damage, leaving it to Ms Brown to push the police for a criminal prosecution.

vi) The failure to pursue the NSP, once served.

vii) No consideration of obtaining an injunction to protect the safety of Ms Brown and Mr Davies, despite the Council acknowledging a threat to its own staff.

viii) A lack of effective multi agency working.

Therefore:

I find maladministration in that the Housing Department has failed to follow its procedures in respect of the following matters:-

Lack of regular updates to the complainants and failure to convey decisions
Absence of an action plan
Absence of speedy action at any stage in the handling of the case
Absence of consideration of legal alternatives by the Housing Department
Absence of legal action to protect witnesses
Lack of effective working with other departments
Late referral to legal department
Late installation of security measures

I find no evidence of considerations of proportionality of action or right to home life under Article 8 the Human Rights Act 1998 in this case and these considerations are not directly referenced or embedded in the anti social behaviour procedures of the Council. I find that Miss Brown‟s and Mr Davies‟s human rights were engaged in this case but were never addressed by the Council.

Neither is there any evidence of considerations of Miss Brown and Mr Davies‟s position under s.183 of the Homelessness Act 2002, specifically in relation to the appropriateness of their remaining in the flat given the actual violence and repeated threat that they experienced. This is a statutory duty. Additionally, the delay of five months in dealing with their transfer request was unacceptable.

Recommended:

Ms Brown be transferred to a suitable location within 3 months

Ms Brown be paid £7,500 for the 3 years of evidenced complaint

The Council to revise ASB policy to formalise early discussion with legal representatives and consideration of the alternative legal remedies that are available to tackle anti social behaviour, and to include in its procedures appropriate advice and considerations under the Human Rights Act 1998 and Homelessness Act 2002.

Further training

Council to evidence actions in 3 to 6 months

HLPA Conference

Published by J on 29/08/2009 in ASB, Allocation, Community care, Homeless, Housing law - All, Introductory and Demoted tenancies, Mortgage possession, Nuisance, Possession, Succession, Tolerated trespasser, assured-tenancy, right-to-buy and secure-tenancy. 1 Comment

The Housing Law Practitioners Association (“HLPA”) host their annual conference on December 15, 2009 at the Royal College of Surgeons, London. Details have just been released (with more to follow later in September) and can be found at www.profbriefings.co.uk/hlc2009.

Highlights include:

(a) Richard Drabble QC giving the key note speech. Richard has had a very active year in the housing field having appeared in Manchester CC v Pinnock, R (Weaver) v L&Q, Hanoman v LB Southwark and Austin v LB Southwark;

(b) Jan Luba QC outlining the expected developments in housing law in 2010. Given that Jan’s work in Holmes-Moorhouse v LB Richmond, Austin v LB Southwark, R (Ahmed) v Newham, R (Aweys) v BCC / Moran v Manchester CC, his insight into the coming 12 months is not something you’d want to miss.

(c) HHJ Platt, DJ Sterlini and DJ Backhouse giving a perspective from the county court bench. If you wanted to know how the changes and developments of the last year are playing out at the ‘coal face’ then you couldn’t ask for three better informed commentators.

(d) Claer Lloyd-Jones of the TSA and their plans for the future regulation of housing law.

(e) Professor David Cowan (who we here at NL have a bit of a soft spot for) of Bristol University and Arden Chambers, whose work on Ground 8 might (we hope) eventually lead to its abolition or restriction.

Other friends of NL who are speaking include James Stark, Dawn McPherson, Jonathan Manning and Chris Johnson.

We can’t recomend the HLPA conference highly enough. The majority of your NL team will be in attendance. Do come and say hello.

Pinnock and Proportionality

Published by Dave on 31/07/2009 in ASB, FLW case note, Housing law - All, Introductory and Demoted tenancies and secure-tenancy. 9 Comments Tags: , , , .

The CA have just handed down judgment in Manchester CC v Pinnock[2009] EWCA Civ 852, concerning the evidence that can be taken into account to justify a breach of a demoted tenancy at a review panel, the proper role of the County Court in such a circumstance, and the standard to be applied on a judicial review of a review panel decision. It is significant then in the context of demoted tenancies and demonstrates also that the proportionality standard is subject-specific. Manchester won by the way, although, no doubt Richard Drabble QC will seek leave to appeal as it was conceded that the CA was bound by Gilboy as regards whether the demoted tenancy review process is article 6 compliant (at [23]).

Facts

Mr Pinnock had lived at 65 Meldon Road for 30 years, and lives there with his partner, Christine Walker, and their five children. The five children – Clive, Trevor, Devon, Orreon and Orraine – were involved in various offences and between 1998-2007, the Recorder, who made the demoted tenancy order, which began on 08 June 2007, “listed no less than 32 matters between 1998 and January 2007 involving the family, including sentences for criminal offences, the imposition and breach of ASBOs, an Anti-Social Behaviour injunction granted against Christine Walker and breach of that injunction” ([9]). New terms were included in the demoted tenancy agreement concerning nuisance, annoyance, disturbance, harassment etc. Pretty much the day before the demoted tenancy would have become secure again, Manchester served notice of proceedings for possession and extended the demotion until the Pinnocks gave up possession. The notice referred to two breaches of the amended demoted tenancy: Clive had resisted and/or obstructed a PC; Devon had pleaded guilty to causing death by dangerous driving and driving whilst disqualified and uninsured in the locality of the property. None of the facts at any time suggested that Mr Pinnock had been involved in any such activity.

Mr Pinnock sought an oral review of that decision, at which the review panel took account of more recent serious offences committed by the sons, including conviction of Clive and Devon for burglary; Christine Walker had blamed the police for Devon’s car crash. Mr Pinnock’s defence was that the children no longer lived at the property, to which the council found that “it remains the family home where your sons return on a frequent basis”. As regards Christine Walker’s blaming of the police, “The panel felt that this clearly demonstrated that both you and your partner have failed to address your responsibilities as parents. Furthermore you both appear to refuse to accept the seriousness of your sons’ behaviour …”. The children continued to pose a serious risk to the community.

At the County Court hearing under s 143N, Housing Act 1996, the judge appears to have proceeded on a gateway (b) path a la Kay/Doherty, and found that none of the matters referred to in the possession notice would have been sufficient on their own; the review panel had not ducked the issue of whether Clive and Devon were still living in the property; that the council was entitled to rely on matters after the possession notice which Mr Pinnock knew about and had an opportunity to deal with at the panel.

Submissions

Before the CA, Richard Drabble raised a number of arguments aimed both at the statutory process for review as well as the way it was handled in this case. He argued that the basis for the panel and County Court review was proportionality and that had not been considered (eg alternative remedies). Although the panel/County Court were entitled to have regard to events after the possession notice, that was only if one of the matters in the possession notice was upheld, but none was; the County Court judge had substituted his own decision for that of the review panel.

Andrew Arden for Manchester argued, amongst other things, that the qualified rights under Article 8 had been taken into account by the legislation; the County Court judge did not have jurisdiction to review the panel’s decision on jr grounds (that could only be done in the Administrative Court); it wasn’t necessary for the council to establish that there had been breaches of the tenancy agreement.

Judgment

Stanley Burton LJ, with whom Lloyd and Mummery LJJ agreed, proceeded first on an “apart from authority” basis ([26]-[32]). On that basis, he said that it was the whole process from the outset that needed to be considered in the context of Article 8 rights. When the demotion order is originally made, “… the court has found the removal of security a necessary and proportionate response to the conduct of the tenant or those residing with or visiting him“; and that where there had been conduct serious enough to justify a demotion order (as here), at the second stage, “… very little is required to justify the landlord’s decision to obtain possession. it would be wholly wrong, and inconsistent with the statutory scheme, to scrutinise the landlord’s decision at the second stage with the rigour required of the county court at the first stage”. As regards proportionality at the second stage, he said this

… is not a high test, and I see no real difference at the second stage between it and the domestic requirement, to which I refer below, that the landlord’s decision must not be one that no reasonable person would consider justifiable. If on review the landlord considers for good reason … that it is necessary or appropriate to obtain possession of a dwelling-house let on a demoted tenancy, and its decision is one that no reasonable person would consider justifiable, the requirement of proportionality will be satisfied. (original emphasis)

There then follow pages and pages – a bit of a cut and paste job – from Kay, Doherty, Doran, and Central Beds – with two “simple propositions” at [46]-[47]: in a statutory context like this one, if the provisions are incompatible with Convention rights, the landlord’s decision and that of the County Court is nonetheless lawful (s 6(2)(b), HRA); on a jr, the standards applicable are those applicable in a non-Convention domestic review (Doherty/Doran/Central Beds). Anyone hoping for further pearls of wisdom will be disappointed, I fear.

As regards the role of the County Court, he said that s 143D restricts that Court to considering whether the procedure had been followed. If it has been, the order must follow. He was fortified in this conclusion by three further points: (a) the county court has no power to make a quashing order, so that, if it did find the decision to be legally effective, it might have no alternative but to dismiss the claim for possession (so that the tenancy would become a secure tenancy again under s 143B(4)(b)); the whole process was intended by Parliament to be quick and section 143F(6) was directory rather than mandatory; his conclusion was consistent with the materially identical wording for introductory tenancies. Nobody had suggested here that the correct procedure had not been followed.

Although strictly obiter, therefore, he gives his views on a number of points:
What approach should the administrative court take? the court “should be cautious in the extreme before quashing a decision of a public landlord” (at [58]).
What reasons can be given in a notice? he says that such reasons may extend beyond the tenancy agreement. He is extensive in his interpretation of what can be taken into account:

My provisional view is that the reasons for the landlord’s decision may be anything relevant to its management of its housing estate, provided, of course, that it arises or becomes known after the date of the demotion order and so could not have been taken into account when it was made. If there are relevant reasons that justify the decision (in the sense that it cannot be said that no reasonable person would make that decision for those reasons) the Court should not, in my judgment, normally quash the decision.

What can be taken into account on review? anything that postdates the possession notice, provided that can be fairly done. The question is whether, at the time of the review, the landlord has a good reason to seek possession.

As for this case, he accepted that the review panel had ducked the issue of Devon’s residence, but that did not make the incident irrelevant. Christine Walker’s blaming of the police bore on whether she and Mr Pinnock were able and willing to exercise parental control; Orreon’s conviction for burglary after the possession notice was served was relevant. Even if the judge had jurisdiction, the review decision was not irrational.

'We rule the estate'

Published by NL on 01/02/2009 in ASB, FLW case note, Housing law - All and Introductory and Demoted tenancies. 0 Comments Tags: , , , , .

A local authority’s failure to effectively implement the range of sanctions for Anti Social Behaviour is the subject of a report by the Public Service Ombudsman of Wales, Case 200702044 – Conwy County Borough Council.

The whole report (there is a link on that page) is worth reading, highlighting lack of awareness, systems, procedures and apparently a disinclination to take complaints seriously on the part of the LA. Following a number of previous reports, the LA was supposedly instigating a new internal procedure during the period concerned, but it seems to have had little impact.

What is particularly clear from the report is that at virtually all levels in the LA, from housing officer to the urgent ASB panel, there was a clear misunderstanding of the requirements of ASBis, Demoted Tenancies and subsequent possession proceedings, in terms of procedure, required evidence and the civil burden of proof, such that the neighbour victims of the anti-social behaviour suffered a further 3 years or more. Mostly, the Council just sent the odd warning letter and a few NSPs, with no further action.

Remarkably, the victims’ landlords, an RSL, took action against the principle offender, the son of the LA’s tenant, at an early stage in the form of an ASBi, and apparently thereafter attempted to tutor Council officers in the available options, to little effect. The RSL even went to the expense of obtaining advice from their solicitors on the requirements of a possession order from a demoted tenancy to pass to the manager of the Council’s ASB unit, who was apparently completely unaware that a possession order was mandatory if the decision process had been followed correctly.

In fact, even after getting a demoted tenancy for their tenant, the Council managed to provide the tenant with all the emails of complaint from the neighbours, including their email address, without getting the neighbours’ permission, prior to a review hearing of a decision to obtain a possession order. The review overturned the decision to seek possession, apparently largely because a councillor who lived on the estate ‘hadn’t had any problems’ with the tenant.

The neighbours had suffered years of verbal and racist abuse, bricks through the window, car tyres slashed and the cars damaged, eggs and metal objects thrown at the house, noise from parties and police raids next door. This was largely supported by evidence from the police. On the other hand, the tenant had alleged that the neighbours had ‘looked at her funny’. (Even the tenant’s solicitor warned her about making vexatious complaints). For the review, this somehow turned into a ‘personality clash’.

The Ombudsman was concerned to find that the recommendation sof previous reports had not been carried through, despite being well after the compliance period. There was a continuing lack of knowledge on the part of staff, a failure to communicate with the victims effectively or at all, and an over-reliance on the police for expertise and for driving cases forward. In fact, the Council seemed to have gone to ‘extraordinary lengths to preserve’ the tenancy.

The neighbours, one of whom was disabled with severe health problems, and who had a young son, were recommended to be paid £2,500 for each of the four years at issue.

While the RSL had been trying to implement a transfer for the neighbours, they were also on the Council housing list. The Council had failed to address their position on the housing list and wholly failed to consider whether s.183 HA 1996 was engaged, despite it not being reasonable for them to remain in the property in the face of the targetted ASB. It did not require an application to be formally made for the Council’s duties under s.183 to be invoked and they should have been here.

A public report was issued, requiring action by the Council (although it has since transferred its housing stock).

Gilboy redux

Published by NL on 02/07/2008 in FLW case note, Housing law - All and Introductory and Demoted tenancies. 0 Comments Tags: , , , , .

Gilboy, R (on the application of) v Liverpool City Council & Ors [2008] EWCA Civ 751 is the appeal from the Judical Revew decision noted in this previous post.

The appeal, was by general consent, on one issue alone. Does the internal review procedure for reconsideration by local housing authorities of a decision to terminate a demoted tenancy established by sections 143E-143F of the Housing Act 1996 and the Demoted Tenancies (Review of Decisions (England) Regulations 2004 violate Article 6 of ECHR?

My previous notes contain the meat of the issue. The argument, extended from the High Court Tsfayo issues, was that the availability of Judicial Review could not satisfy Art 6 requirements in regard to the Local Authority review of a decision to make a mandatory possession claim for a demoted tenancy, because the issues in the review, as in this case, are often matters of fact and not amenable to JR.

Thus, argues the Appellant, there is no impartial judicial tribunal for the possession claim other than ensuring the procedure has been followed via JR or County Court (as in Donoghue and McCann in the ECtHR- but these were Art 8 cases)

The stumbling block was a Court of Appeal decision on a similar set of procedures in Introductory Tenancies, McLellan v Bracknell Forest Borough Council [2001] EWCA Civ 1510 [2002] QB 1129, which held that Art 6 was engaged, but the provisions were compliant.

The Court of Appeal decided that the differences between introductory and demoted tenancy provisions were not enough to distinguish McLellan. The House of Lords had in effect approved McLellan in Kay v Lambeth London Borough Council [2006] 2 AC 465.

There follows an interesting discussion of McCann. It is pointed out that McCann concerns a ‘bypassing’ of the procedural and statutory processes of secure tenancy. In short, the Court of Appeal considers that Art 6 and Art 8 are closely entwined, such that it is unlikely that a procedure that was Art 8(2) compliant would separately be found in breach of Art 6, and in the McCann judgment, there was

nothing to indicate that the European Court disapproved as violating Article 8 (or indeed Article 6) any of the schemes which make up what the court describes as “a complex system for the allocation of public housing.”

This looks like the first attempt at a limitation of the impact of McCann seen in the wild.

In conclusion:

  • Contra the High Court judgment, it must be a local authority officer that conducts the review.
  • There is no good reason to change the view in McLellan that Art 6 is engaged, contra the High Court judgment.
  • However, there is no statutory requirement that the review involve findings of fact and, even if they do, they are ‘simply staging posts on the way to much broader judgements’ in the exercise of discretion, which remain amenable to JR.
  • There is no material distinction between the introductory and demoted tenancy schemes inasmuch as they are both ‘within recognised categories of administrative decision-making’. McLellan also covers demoted tenancies.

Appeal dismissed.

This judgment will certainly merit some further thought, in particular on the treatment of McCann.

Snippets

Published by NL on 17/05/2008 in Allocation, Housing law - All, Introductory and Demoted tenancies and Possession. 0 Comments Tags: , , , , , , .

A few bits and pieces…

Gilboy v Liverpool CC has a hearing at the Court of Appeal on 19 or 20 May (thanks J and GCN).

Doherty v Birmingham is at the House of Lords later this year, which should be a big test for the legacy, if any, of McCann (thanks J, again)

Rumour is that Southwark are appealing R(Faarah) v Southwark. Not sure I see what the basis of appeal would be, but we’ll see.

The world of housing blogs expands still further and intriguingly, the latest addition is by a homeless officer. The nothing if not literally named A Homelessness Officers Point of View promises to ’cause comment’.

And a happy birthday to Charon QC. Long may the Rioja flow.