The Housing and Regeneration Act has now received royal assent.
A full history of its passage through Parliament is here.
Archive for the 'Housing law' Category
North Devon Homes Ltd. v Batchelor [2008] EWCA Civ 840 concerned a claim for possession of an assured tenancy. At County Court, the claim was brought on grounds 10, 12 and 14 HA 1988. While the claim resulted in a postponed possession order for ground 10 rent arrears, the claims on ground 12 (non-performance of obligation) and 14 (nuisance/arrestable offence). The Circuit Judge had refused to make a possession order on grounds 12 and 14 on the basis that it was not reasonable to do so.
North Devon appealed that decision, arguing that the Judge took into an account an irrelevant matter, had failed to consider a relevant matter and failed to consider a relevant matter raised in the respondent’s evidence.
Briefly, the evidence that North Devon had put forward at the first hearing was of Ms B’s
conviction before Exeter Crown Court on May 2007 of possession of 7.5 grammes within 76 wraps or thereabouts of cocaine, a controlled drug of Class A with the intent to supply it, and also of money laundering. She pleaded guilty to possession of the cocaine with intent to supply, upon the specific basis that she had been asked to hold the drugs for her son and had agreed to do so intending to hand them back to him. However, she was prevented from doing so by the arrival of the police on 22nd September 2005 to execute a search warrant at the flat. Conversely, the jury convicted her of having laundered about £1600 on two specific occasions. The £1600 was part of a larger sum of £27,000 which had been laundered, not necessarily by her, over about a three month period. She had also pleaded guilty to a specific offence of possession of cannabis. She was sentenced to eighteen months imprisonment to run concurrently on the offences of possessing cocaine with intent to supply and on money laundering, with no separate penalty being imposed for the possession of the cannabis.
By the time of the substantive hearing, Ms B was released from prison and back at the property. Ms B gave oral evidence. North Devon apparently did not put forward witnesses at the hearing. In evidence Ms B admitted that she ‘may’ continue to use cannabis for pain relief (Ms B was 61 and in sheltered accommodation). The Judge found that there was not sufficient evidence to establish nuisance under Ground 14(a) or 14(b)(i) immoral or illegal purposes. However, the conviction clearly fell under 14(b)(ii). In deciding that it was not sufficient to make possession reasonable, the Judge said
Mr James (counsel for the respondent) argued that once the Court puts on one side, as it has to do, and as I have done, the complete absence of satisfactory evidence produced to establish nuisance or annoyance and looks at the defendant’s conviction for possession of 7.5 grammes of cocaine with intent to supply, this court must, as the Crown Court had to do so, accept the defendant’s basis of plea, namely looking after it for her son, intending to hand it back to him on one occasion only in September 2005. Whilst I would not necessarily agree with Mr James that this was merely a technical offence, I would nonetheless agree that in gradation of seriousness it is at the lower end of the scale of possession with intent to supply a Class A controlled drug. Insofar as the possession of cannabis is concerned, whilst of course this remains a criminal offence now of Class C, if every tenant of a dwelling house within the public sector was to be visited by a possession order because it was reasonable to make one, the courts would inevitably be swamped with such claims. The facts of this case as presented are wholly different from those in the Musah case [City Council of Bristol v Martin Mousah (1998) 30 HLR 32] and those in the Stonebridge Housing case. Having considered the available evidence and the arguments I do not therefore consider that it would be reasonable to make an order for possession under either Grounds 12 or 14 in this case.
North Devon’s grounds of appeal were that:
The Judge’s comments in the passage above were irrelevant to the extent that they addressed the likelihood of Ms B being rehoused. In addition, inasmuch as smoking cannabis was a criminal offence, it was for the courts to uphold the law not to be perceived as condoning illegal activities.
The Court of Appeal did not agree with that interpretation of the passage. All the Judge was addressing was the seriousness of the conviction for possession of cannabis. The Judge was not clearly wrong to reach the conclusion he did.
Secondly, North Devon argued that the Judge had failed to consider ‘previous warnings’ to Ms B, relying on a letter to her of Sept 2005 - not in evidence at the Court of Appeal but quoted in a skeleton argument.
You will remember that I visited you on 5 Auust 2005 following several complaints that had been made by those living around you. You will remember that one of the complaints was that you were having a steady stream of visitors to your home and it was alleged that you were involved in drug dealing or using. I am continuing to receive complaints about the number of visitors you have visiting you during the day.
The Court of Appeal found that this went to 14(a) - which had not been raised on appeal - but that in any event the Judge had dealt with the issue of visitors and rejected North Devon’s case, which decision was also not appealed.
Thirdly, North Devon’s evidence that Ms B would continue to use cannabis was no stronger than the ‘maybe’ that the Judge had addressed. There was no reason for the Court of Appeal to find that Ms B would continue to smoke cannabis.
In response to a submission from North Devon that ‘the wrong message would be given out’, Lord Justice Wall said:
In my judgment, there are two short answers to that submission, although neither is strictly necessary for the determination of this appeal. The first is that if there is a message in this case (and speaking for myself the case seems to me to turn on its particular facts and to raise no point of principle) it is that actions for possession are serious and regard must be had to the facts of the particular case. As I see it, the judge paid careful attention to the particular facts and weighed them up meticulously. The second follows from the first, namely that, on the particular facts of this case and as the case was presented to him, the judge was entitled to deal with the respondent’s convictions as he did, and he was thus entitled to hold, as he did, that the respondent’s breaches of her tenancy agreement did not bring her within the scope of this court’s decision in Bristol City Council v. Mousah: or, to put the matter another way, that they were not such as to make it unreasonable for the judge, to decline to make a possession order.
On applications for permission to appeal to the House of Lords:
Omar v Birmingham City Council - Omar refused permission to appeal from this Court of Appeal judgment. Very disappointing given the ambiguity, to put it mildly, of the Court of Appeal judgment (look at the comments on that post).
Aweys v Birmingham City Council - Birmingham given permission to appeal. Eh? The JR and Court of Appeal judgments were clear and straightforward. So we will have to see whether Birmingham are just throwing money away.
Both odd decisions, but maybe I’m missing something. Thanks to CLP people for the information.
There is an all too common situation. A tenant with the right to buy is offered a capital sum and the mortgage payments for the (in this case) three years needed to avoid repaying the RTB discount on transfer. In the meantime, they either get to stay or hand over control of the property to the shadow. Recent RTBs have provisions in the lease to make this more difficult, as well as a much reduced discount, but there remain a lot of sharks circling.
McGuane v Welch [2008] EWCA Civ 785 was an appeal of a County Court judgment awarding an equitable interest of 100% in a lease of the property concerned to Mr Welch (W), against the title of Mr McGuane (M), the erstwhile tenant.
I’ve not got time to do a detailed report, but the appeal succeeded, largely on the basis that there was an express trust, not a constructive trust, and that the claimant did not come to equity with clean hands. In particular the Claimant had engaged a not entirely reliable solicitor, May & Co, supposedly to act for the Defendant in the arrangement. They never met their supposed client or advised him directly in person or in writing. One trusts the SRA have taken note.
The Defendant pleaded the whole arrangment being the act of “a poor and ignorant man”, (Creswell v Potter (1968) [1978] 1 WLR 255, Backhouse v Backhouse [1978] 1 WLR 243). But the judgment left the erstwhile tenant liable to repay all the monies that the Claimant had spent on the property in mortgage and refurb, so effectively meaning a plague on both your houses.
There are a number of issues in this judgment that I want to return to - in particular the requirement for ’stamped’ trust deed and transfer for admission as evidence, and the way in which express trust is dealt with. But that will have to wait for a fortnight or so. No time now, I’m afraid.
In the meantime, it is clear that the Court deeply disapproves of the ‘transaction’, but absent evidence or argument on breach of statute, can’t say much more.
This was a judicial review against Southwark’s allocation policy, reported in this post, which Southwark, rather surprisingly, appealed.
Faarah, R (on the application of) v London Borough of Southwark [2008] EWCA Civ 807 was the result. The issue was the manner in which Southwark had translated medical priority points for transfer under the old allocation scheme into priority banding in the Choice Based Letting scheme that began in September 2005, and as a result priority dates.
Southwark appealed on three issues.
Firstly
that the judge was wrong to treat the criteria for 20 medical points under the old scheme and for inclusion in band 3 on medical grounds under the new scheme as indistinguishable in substance, and secondly, that in any event Southwark was entitled in the exercise of its discretion to adopt the administrative practice that it did as a transitional step in moving from the old scheme to the new scheme.
The Court of Appeal said that the Judge was right to treat the criterea as identical. Southwark had adopted an unpublished administrative scheme that did not accord with their published criterea. Southwark’s discretion did not extend to allocating housing other than by its published scheme.
Second, on the dating of priority, Southwark argued that there was no requirement for priority to pre-date the new scheme and in any case, the applicant only achieved band 2 priority through the multiple needs provision of the new scheme. The applicant pointed out that Southwark gave may people priority dates well before the introduction of the new scheme. Consistency in application should backdate the applicant’s priority to the date of her award of 20 points medical priority. The Order from the judicial review was unclear on this point, quashing the original priority date given to the applicant but not specifying a new one.
The Court of Appeal could not find a clear rationale for awarding priority dates, other than the obvious one of starting from Sept 2005 for everyone who predated the new scheme on the list. Southwark did not argue for this, as it does not accord with their actual practice. The Court said that any mechanism for awarding priority dates should be published and that Southwark could (impliedly should) regularise their position in that way for the future.
Thirdly, Southwark argued delay by the applicant from 2005 to 2007 in bringing the claim meant that she was not entitled to relief. The Court of Appeal found no reason to reverse the Judicial Review on this point. Southwark had been and continued to act unlawfully.
On relief granted, Southwark argued the delaration made was ‘not conducive to good administration’. The Court of Appeal was not impressed:
When pressed to explain his reasoning, he said that the making of a formal declaration would place a greater onus on the council to correct the practice than if the relief were limited to an order specifically relating to Ms Faarah. I found that a surprising and rather worrying submission. If it is true, it provides all the more reason why it is in the interests of good public administration that the judge’s declaration should stand.
An argument that Southwark should be allowed to continue an unlawful practice because changing it is inconvenient? Marvellous.
It appears that the Court of Appeal shared my surprise that Southwark had appealed this on all issues. Lord Justice Sedley agrees with the main judgment and adds at 53-54:
I share his concern at the sustained endeavour of the local authority, through Mr Broatch, to treat this appeal more as a damage limitation exercise than as an endeavour to get their policy and practice within the law. Both Southwark and other authorities with similar schemes have a duty to make sure that their schemes are compliant with their statutory obligations and are not subverted by inconsistent administrative practices.
The other rider is that all the members of this court would wish to express their appreciation of the skilful professional service which Ms Faarah has had from the Southwark Law Centre. As the history set out by Lord Justice Toulson shows, the law centre, by careful and well-informed correspondence, was able to locate and challenge the precise error of public administration which this appeal has confirmed. It is of importance to the administration of justice, as well as to many individuals, that there should continue to be law centres like Southwark’s which are able to offer professional help of high calibre to the neediest people.
Following the gloomy conclusions of my previous post, and the vulnerability of law centres at the moment, that gets a round of applause.
The Housing and Regeneration bill has been amended so that homeless applicants with families who are subject to immigration control will have that family count towards priority need. This will apply for UK/EU/Commonwealth citizens.
Good. That will hopefully be one of the more vicious and ugly effects of the current statute, already found to be in breach of ECHR, done with.
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.
Oh dear, oh dear. That could have gone better.
I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.
The headline result is that:
- For an eviction to be unlawful due to disability discrimination under s.22(3)(c), the eviction must be for a reason that, in the mind of the landlord, is related to the disability.
- To be discriminatory the treatment must be less favourable for a reason related to the disability. The comparator against whom the treatment is measured is someone who has acted, or not acted, in the same way but is not disabled. So, for example, someone who has rent arrears, or has illegally sub-let, if that is the position of the disabled person.
- It is still possible (by a majority) to raise disability discrimination as a ‘defence’ against mandatory or ‘undefendable’ possession claims, but the circumstances in which this will be possible will be extraordinary.
This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.
Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[...] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.
The issue is s.24(1) which defines discrimination for the purposes of s.22(3) - the eviction clause. S.24(1) reads:
For the purposes of section 22, a person (‘A’) discriminates against a disabled person if -
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment is justified.
However, exactly the same formulation appears at s.5(1) - employment; and s20(1) - Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.
Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.
For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.
The specific problem for services and premises - which was the provision facing the Lords here - is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.
Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.
What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn't, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) - no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]
The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 - 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view - the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.
The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did - the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.
Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.
The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.
[I should point out that in all of this, I agree with Francis Davey's comments on my 'Malcolm in brief' post. Link below]
Article Series - Disability Discrimination
- Catching up - Disability Discrimination and possession
- Disability and tenancy - More on Malcolm
- On impotent landlords and disability.
- Disability discrimination - the comparator
- DDA and mandatory possession
- S v Floyd and a disability defence
- Adjourning pending Malcolm in the Lords
- And now Malcolm!
- Malcolm in brief
- Comments on Malcolm in the Lords
Belated, I know, but this is the first chance I have had to really look at the judgment in Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).
Ground 8 and Legitimate Expectation
First the substantive ground of challenge - that the use of Ground 8 mandatory possession claims by L&Q Housing Trust amounted to breach of the claimant’s legitimate expectation and/or convention rights.
This was based upon LQHT’s terms and conditions, which said that they would comply with the Housing Corporations regulations and guidance. Housing Corp guidance says that ‘before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt’. The Claimant argued that reasonable alternatives included agreement on paying arrears, money judgment, or discretionary possession claim on grounds 11 or 12. Seeking to avoid Postponed Possession Orders was, in effect, saying that the judicial discretion would not be properly exercised. LQHT’s practice, it was claimed, was solely to use Ground 8.
L&Q denied that they had a policy to only use Ground 8. That use of Ground 8 resulted in a high level of payment of arrears prior to hearing and was thus an effective tool. L&Q denied that the contractual term involved could give rise to legitimate expectation - it was a statement of intent or target duty. It was not specific enough to give rise to an expectation - the specific guidance was not prescriptive and the language vague. In any case, there was no evidence of reliance.
L&Q said they had pursued all reasonable alternatives in this case, and use of grounds 11 or 12 prior to the use of ground 8 could not be considered to be a required reasonable alternative.
On the facts of this case, where there was a history of substantial and repeated defaults on agreements, the Court found that L&Q was entitled not to consider using ground 11 or 12.
Moreover, the Court found that the wording of the guidance was too broad to allow solely the claimant’s interpretation and, as the passage in the terms and conditions was not contended to be contractually binding, it could not be treated as having the qualities that would justify enforcing it as a legitimate expectation, particularly as there was no evidence that the Claimant was even aware of the term.
The claim failed.
Comment
I think L&Q were, to some extent fortunate in the challenge they faced. Legitimate expectation was always going to be difficult to establish on the back of Housing Corp guidance. I was rather surprised to see it as the sole ground of challenge. I suspect that L&Q also managed to obfuscate their actual practice somewhat in evidence. Certainly what was put forward in evidence differs from what tenant-side advisors encounter. But there we are.
There may be enough in the specifics of this case to distinguish it in future, as LQHT’s behaviour in regard to this specific tenant clealry shaped the Court’s attitude to the overall challenge - there had been repeated attempts to recover arrears and come to agreements, as well as repeated NSPs, sufficient to bolster LQHT’s claim that this was a weapon of last resort.
There may also be further evidence on L&Q’s use of ground 8 that may support challenges on other bases. I don’t think that this one ends the JR and ground 8 possibilities.
Subject to Judicial Review
More significant in the broader scheme of things, of course, is that L&Q were found to be a Public Authority amenable to judicial review in its housing function.
L&Q’s argument was that they were not a public authority. While certain functions were certainly public, such as its statutory function in relation to anti-social behaviour orders, or specific statutory delegations by local housing authorities, the main function of managing and allocating its own housing stock was not public.
Public funding grants were received but this was not determinative of public function. Provision of housing is not a public function like provision of education or social care. Moreover, the relationship between Claimant and LQHT was contractual, which was at the core of R v Servite Houses, ex p Goldsmith [2001] LGR 55, as approved in YL v Birmingham City Council [2007] 3 WLR 112. RSLs have private law status and being subject to detailed regulation does not point to them being public authorities, as found in YL v Birmingham.
LQHT argued that even if allocation was a public function, the termination of tenancy was not. it was a management decision governed by contract. Since the decision in Peabody Housing Association Ltd v Green (1978) 38 P&CR 644, only Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 had suggested that termination of a tenancy by an RSL could be a public function, and Poplar Housing turned very much on its specific facts.
The Claimant argued that Peabody was prior to the explainsion of Judicial Review and Servite was decided prior to the introduction of the HRA. The Claimant applied YL v Birmingham and argued that LQHT was carrying out a overnmental function, the management and allocation of stste-subsidised housing (cf Novoseletskiy v Ukraine (2006) 46 EHRR 53). LQHT received substantial capital grants from public funds. RSLs were established under the Housing Act 1996 in order to deliver affordable housing and funded by Government to that purpose. Management of housing, including the setting of rents, is subject to the Housing Corp guidance.
The Claimant also pointed out the LQHT irself allocates and manages public housing resources in the public interest, albeit not strictly by delegation of functions, but Strasbourg case law on delegation of powers (e.g. Wos v Poland) was relevant. LQHT was entrusted with public funds and required to use them in the public interest. Unlike Southern Cross in YL, it is non-profit-making and not acting out of private, commercial motivations.
Deciding to grant or terminate tenancies are therefore decisions concerning the allocation of public housing resources.
The Claimant also argued that providing housing to priority applicants under the LA allocation scheme was pursuant to s.8 Housing Act 1996 and a duty under s.170 HA 1996. The Court found this misconceived, a duty to co-operate under s.170 is not a statutory duty to grant a tenancy.
Likewise, the Court ignored arguments on the government accepting that RSLs were ‘bodies governed by public law’ for the purposes of EU directives on procurement. The government’s view did not determine the position and EU law was not Convention or human rights law.
The Court found that LQHT was a public authority in its housing function, citing the following reasons:
- LQHT is different to an ordinary commercial business by the nature of its activities and the contexts in which it operates.
- LQHT is non-profit-making charity acting for the benefit of the community, so lacks the private and commercial features that feated in YL v Birmingham.
- LQHT operates in the social rented sector which is not merely subject to detailed regulation (pace Southern Cross in YL) but is permeated by state control and influence with a view to meeting the Government’s aims for affordable housing and in which RSLs work beside local authorities and can be said in a real sense to take their place,
- Control and influence is exerted through the Housing Corporation. While stautory guidance is non-binding, there is clear indirect pressure on RSLs to comply. The extent of control and influence being exampled by the approach towards implementation of policy on rent setting and the general statements in the Code of Guidance.
- Particularly important - the nature and extent of public subsidy of LQHT, in common with other RSLs. In particular, the receipt of capital grants, esepcially social housing grants under s.18 HA 1996. Very large sums are involved. That they are for particular developments, rather than block grants, makes no odds. The funds are directed towards increasing social housing stock and are one means by which the state accomplishes this. While private funding is also important and RSLs aren’t the only receipient of funds, LQHTs business as a whole is heavily subsidised by the state due to the role played in implementing policy. A clear case of “the injection of capital or subsidy into an organisation in return for undertaking a non-commercial role or activity of general public interest (YL v Birmingham at 105).”
- Also relevant is that a ’significant’ proportion - 10% - of LHQT’s housing stock was ex-local authority following voluntary transfer. While clearly not the same as Poplar Housing, which was formed for the specific purpose of stock transfer, this still reflected the fact that RSLs are performing functions of the same type as local authorities.
- The duty of co-operation with Local Authorities under s.170 HA 1996 means that RSLs don’t have a purely commercial relation with local authorities, but operate under a statutory framework. Over half LQHT’s new lettings were nominations from LAs.
- That serving a notice to quit was not a statutory power but a private law right did not prevent an RSL being a public authority. If allocation is a public function, it would be wrong to separate out ‘management’ including termination as private. Allocation and management are part of a single function.
For these reasons LQHT is a public authority in the meaning of s.6(3)(b) Human Rights Act 1998.
If it is a public authority for the purposes of the HRA, then it should be equally amenable to judicial review on conventional public law grounds.
Comment
I don’t think that this list should be taken as a set of necessary conditions for public authority status. Clearly some elements were more persuasive to the Court than others. For instance - the ex-local authority housing stock point. This is clearly a different point to that made in Poplar Housing, as here it is, in effect, simply further support for the idea that RSLs are performing the same type of housing function as local authorities. So, I can’t see how much, or indeed whether, ex-local authority housing stock is in possession of an RSL being a crucial determinant for their status as public authority. The main point is surely the level of public funding/subsidy and the level of state guidance/direction involved.
It would be difficult, I suspect, for any RSL to argue that its position is so significantly different to that of LQHT as to not be a public authority. But no doubt some will try.
While the headline is susceptibility to Judicial Review, it is also worth noting that, at almost the same moment that an amendment to the Housing and Regeneration bill to make RSLs subject to the HRA failed, this judgment states clearly that, in their housing functions, RSLs are indeed subject to the HRA.
A few months ago, this might not have been a big deal, but post McCann, it may turn out to be significant. Proportionality in the mandatory possession process anyone?
I know that a number of RSLs have been quietly settling prospective JR claims, precisely to avoid a full hearing on their status as public authorities. I suspect L&Q are not very popular at the moment with their fellow RSLs. There will no doubt be an appeal of that finding, which also opens the prospect of a cross appeal by the Claimant. Interesting times.
I’m afraid that detailed comments on Weaver and Malcolm, let alone anything else will have to wait until the weekend, just in case anyone was looking for them. Actual and very urgent casework has intervened, involving quite the most ridiculous reason given for a s.184 decision of intentional homelessness that I have ever come across. That has accounted for the last couple of evenings.
LB Lewisham v Malcolm [2008] UKHL 43
Court of Appeal thoroughly and unanimously overturned.
The reason for the treatment is the reason in the mind of the landlord, or one which can be imputed to them. So the landlord must be aware or be imputed to be aware of the disability, and the reason for the treatment in the landlord’s mind must be related to the disability.
Clark v Novacold mostly disapproved. The Court has some problems with the comparator issue, but mostly settles for the comparator for less favourable treatment being someone who has done the same thing but is not disabled (Thus, in Malcolm, someone who has illegally sub-let). Marvellous passage on the blind man and guide dog hypothetical at 35.
Baroness Hale alone disagrees, holding that the Novacold interpretation was what Parliament intended and approves Novacold for that reason. But she also finds that the landlord must or ought to have known of the disability and that knowledge to be a reason for the treatment.
Baroness Hale also argues for the introduction of a discretion on granting possession orders where there is apparent unlawful discrimination, balancing occupier and landlord interests.
Mandatory/unanswerable possession procedures can still have a DDA ‘defence’, it appears, but discrimination must be established as above.
Article Series - Disability Discrimination
- Catching up - Disability Discrimination and possession
- Disability and tenancy - More on Malcolm
- On impotent landlords and disability.
- Disability discrimination - the comparator
- DDA and mandatory possession
- S v Floyd and a disability defence
- Adjourning pending Malcolm in the Lords
- And now Malcolm!
- Malcolm in brief
- Comments on Malcolm in the Lords
Before I even have time to get to grips with Weaver, the House of Lords judgment in Malcolm v Lewisham is out. No time even for a quick look now. Hopefully I’ll get to post something later on.
Article Series - Disability Discrimination
- Catching up - Disability Discrimination and possession
- Disability and tenancy - More on Malcolm
- On impotent landlords and disability.
- Disability discrimination - the comparator
- DDA and mandatory possession
- S v Floyd and a disability defence
- Adjourning pending Malcolm in the Lords
- And now Malcolm!
- Malcolm in brief
- Comments on Malcolm in the Lords
Judgment just out
Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin)
Full notes tomorrow, but the headline is:
L&Q is a public authority in its housing function for the purposes of Judicial Review.
Use of ground 8 possession claims is not a breach of legitimate expectation.
London Borough of Lambeth v Johnston [2008] EWCA Civ 690 is an appeal to the Court of Appeal from a County Court s.204 appeal.
The brief facts - the Claimant applied to Lambeth as homeless in September 2004. He told the officer he had an alcohol problem Lambeth put him into temporary accommodation. In September 2005, with no further interview or enquiries, Lambeth made a s.184 decision that he was not vulnerable.
At s.202, this was upheld, despite new evidence from the Claimant’s drug dependency agency that he was Class A dependant and alcoholic. He was now on a treatment programme but in a vulnerable condition. There was also evidence from his GP to the same effect. The s.202 said not vulnerable, , based on a Nowmedical opinion on drug and alcohol abuse.
At the first s.204 appeal, the Court held that the s.202 was inadequate in its response to the material available, over-reliant on the Nowmedical opinion, and Wednesbury unreasonable. However, the Court also said that even if this was not so, the failure to conduct furthe enquiries or a fresh interview during the year before the s.184 decision would mean that there was a serious procedural irregularity in the decision. This should have been obvious to the reviewer, triggering regulation 8(2) of The Allocation of Housing and Homelessness (Review Procedures) Regulations 1999:
(2) If the reviewer considers that there is a deficiency or irregularity in the original decision, or in the manner in which it was made, but is minded nonetheless to make a decision which is against the interests of the applicant on one or more issues, the reviewer shall notify the applicant –
(a) that the reviewer is so minded and the reasons why; and
(b) that the applicant, or someone acting on his behalf, may make representations to the reviewer orally or in writing or both orally and in writing.
The reviewer had failed to do this. The matter was remitted for a fresh s.202.
The new s.202 also concluded that the Claimant was not vulnerable. There was no notification that the reviewer was minded to make a decision against the applicant.
The Claimant went to s.204 appeal on, in part, the grounds that Lambeth were in breach of Reg 8(2) in failing to notify of being minded to find adversely despite the clear deficiency in the s.184 process. The Court agreed and upheld the appeal, with costs. Lambeth appealed to the Court of Appeal.
Lambeth argued that
- Given the facts and history of this case, all parties were well aware of the specific issues under consideration in the s.202 and that a Reg 8(2) noification would have served no purpose.
- The review officer had considered the deficiency - which had in any case been raised at the first appeal - and, after talking to Lambeth Legal, decided that in the circumstances, it wasn’t necessary to send a notification.
The Court agreed that in the specific circumstances of this case, the notificiation may have made little or no practical difference, but that was beside the point. Accepting the Claimant’s arguments, the Court found that Reg 8(2) was not an option, or dependent on the review officer’s view on its practical benefit to the applicant. It was a duty imposed by the terms of the regulation if there was an apparent deficiency or irregularity in the s.184 decision - either in the process of making it or in the decision itself.
The Court’s statement on the importance of the regulation is worth noting.
53. It is one thing for an applicant to be able to make representations on the matters in issue and then apprehensively await the review officer’s decision, whichever way it may go. It is quite another for an applicant, not just to be able to make such representations, but then also to be given (i) advance notice of the review officer’s reasons for his provisionally adverse views, and (ii) the opportunity not just to make further written representations as to why those views are not justified by his reasons, but also oral representations to that effect. Previously the applicant will simply have addressed the issues as best he can. Now he will have the opportunity to respond specifically to the review officer’s own reasons as to how he proposes to deal with the issues. That is a most important advantage to the applicant. It may well, in many cases, enable him to engage in no more than an exercise of advocacy. But advocacy can turn a case. There can be few judges who, having formed a provisionally adverse view on a skeleton argument advanced in support of a case, have not then found their view transformed by the subsequent oral argument for which, in the art of advocacy, there is no comparable substitute. The opportunity open to an applicant to try, by written and/or oral argument, to persuade the review officer that his reasoning for his provisional conclusion is mistaken is – at the very least – potentially of great benefit to an applicant. To be deprived of that right is or may be seriously prejudicial.
The Court upheld the s.204 appeal finding that the failure to consider that this was a case where Reg 8(2) was engaged was indefensible and unlawful. Hall v. Wandsworth London Borough Council [2005] 2 All ER 192 followed.
Failure by the review officer to adequately consider, in an objective manner, whether a s.184 decision is deficient or irregular in content or process is susceptible to judicial review principles (Wednesbury unreasonableness) and therefore also to s.204 appeal.
[Many thanks to a reader and commentor here for sending his own report, which was useful for me, but alas, for reasons of employment related discretion, it couldn't be posted. But guest posts/case notes isn't a bad idea...]
C, R (on the application of) v London Borough of Lambeth [2008] EWHC 1230 (Admin) is, in the end, mainly concerned with education, but there is quite a bit of interest to housing people.
The issue was the duties owed to the Claimant under s.23 and s.24 Children Act 1989.
The Claimant had been in care with Lambeth. Shortly before her 18th birthday, Lambeth gave her tenancy of a one bed flat. The next year, after suffering a serious sexual assault at the flat, C left to stay with friends and a former foster mother. In 2207, she was briefly street homeless, before the application for Judicial Review was made. She was accommodated by Lambeth after an interim order.
The judicial review application concerned Lambeth’s failings in three duties to a ‘looked after child’ - housing, community care, education and training.
In the meantime, the claimant turned 21. In view of the ongoing proceedings, Lambeth agreed that if any breach of duty was found, then it would not make an issue of C now being over 21.
Shortly before the substantive hearing, Lambeth accepted a permanent housing duty and a duty to make a community care assessment. The education aspect remained at issue. Lambeth maintained that no education and training duty existed because a course of study had not been identified in a pathway plan that had been adopted before C turned 21. In any case, the pathway plans that had been prepared had not been adopted by the Council.
The Court held, following R(J) v Caerphilly County Borough Council [2005] EWHC 586 Admin; [2005] 2 FLR 860, that the pathway plans that existed had not been properly prepared as they had been prepared by C’s personal advisor. The plan was descriptive rather than establishing proposed courses of action and assistance for C.
The Council’s failure to adopt the plan did not make much of a difference as its evidence was that the plan would have been the same if it had adopted it. The plan requires objective assessment so that all parties can see what it envisages, identify progress or the reasons for the lack of it.
In addition, the plan recognised that the then housing problems had had a major effect on C’s educational aims. C’s difficulties in engaging with the course she had been undertaking were therefore in part due to Lambeth’s failure to accept the housing duty, and also, given C’s mental health difficulties, the failure to undertake a community care assessment.
It was artificial to separate out the educational duty from the housing and community care duty where they were clearly interlinked. C was therefore successful.
Hanoman v London Borough of Southwark [2008] EWCA Civ 624
Where a local authority landlord has failed to respond to a tenant’s notice in time under the Right to Buy procedure, the tenant can serve an ‘operative notice of delay’ under s.153A(5) Housing Act 1985. The effect of this notice is that the landlord must deduct from the purchase price an amount based on the rent paid during the period of the delay (s.153B).
Does housing benefit, whether as payment, or as rebate on rent payable to local authority, count as rent for the purposes of s.153B?
Simple answer - yes. S.153B makes no prescription as to the source of rent payments and it would be ludicrous to distinguish between housing benefit as payment and housing benefit as rebate.
There is also an interesting side issue on preserving rights in a dispute over RTB terms after completion of the sale by way of collateral contract.
Jones v London Borough of Merton [2008] EWCA Civ 660 addresses whether a tolerated trespasser’s liability to pay mesne profits ends when they leave the property or when they notify the former landlord that they have left.
Ordinary trespassers are only liable for mesne profits for the period of actual occupation of a property. Merton submitted that tolerated trespassers were in a different position. Public policy required that housing authorities be notified as soon as possible that occupation was at an end to enable re-letting. There was a direct analogy with the requirement that a secure tenant end the tenancy by notice to quit under s.5 Protection from Eviction Act 1977 as the tolerated trespasser had a distinctive status.
The Court said this was not so. The only valuable, distinctive right of the tolerated trespasser, the right to apply for revival, ends when execution is no longer required to give effect to the possession order, which is when the trespasser has left the property. Liability for mesne profits only extends to the period of actual occupation and there is no requirement for formal notification of giving up occupation to the landlord.
On a side note, possession (as in occupation) requires both factual possession and intention to possess. One cannot be said to have given it up until there is no intention to possess. JA Pye (Oxford) Ltd v. Graham [2002] UKHL 30 applied. There is some dissension between the judgments as to when, on the facts of the case, this was manifest in this case.
As ever, housing cases come in a flood after a drought.
Jones v London Borough of Merton [2008] EWCA Civ 660 on when liability for mesne profits ends after the tolerated trespasser leaves a property.
Hanoman v London Borough of Southwark [2008] EWCA Civ 624 on when housing benefit counts as rent under RTB rules.
And C, R (on the application of) v London Borough of Lambeth [2008] EWHC 1230 (Admin) on housing duties under the Childrens Act.
I’ll get to as many of them as I can tonight and the rest tomorrow.
Ahad v London Borough of Tower Hamlets [2008] EWCA Civ 606 was an application for permission to appeal from a s.204 appeal concerning a refusal of an offer of permanent accommodation. Tower Hamlets had discharged duty on the basis that the appellant had refused an offer of accommodation that was suitable and reasonable for him to occupy, s.173(7F).
The appellant, his wife and three children made up the household. Tower Hamlets had accepted a duty. The appellant was bidding under a Choice Based Letting scheme, made a bid on the property and was successful. After viewing the property with his wife, he refused the offer.
On s.202 review, Tower Hamlets Law Centre made submissions as follows:
We submit that in the event it would not be reasonable for our client to accept the offer. He himself has not had any objection to the property and was inclined to accept it. However, his wife is adamantly opposed to the property. She feels that it is too small for her family’s needs. She does not like the area where it is located as she has no family there and would not feel safe there. Mrs Begum [Mr Ahad's wife] indicated to our client that he could accept the property if he wished, but that she would not move to the property and neither would their three children. Mr Ahad thus believed that if he were to accept the property he and his wife would separate. Our client was therefore faced with the choice of either refusing the offer or his marriage breaking down.
In response, in the negative 202 decision, the council said:
…that Mr Ahad had not advised the council prior to or following the offer that he and his wife had differing opinions on what constituted suitable accommodation for him and, in any event, his having bid for a property, the council could only have accepted in good faith that he and his household wished to reside in the property. As he had applied to the council, it was appropriate for them to draw the inference that he acted on behalf of the whole family on bidding for the property, and the differences of opinion between him and his wife as to the type and location of the property was a domestic matter for them to discuss and reach a conclusion before making any bid.
At s.204 Appeal, the appellant argued that the Council had failed to take into account the fresh information at review concerning the likely effect on the appellant’s marriage. if it had considered them, it had failed to give adequate reasons.
Mr Ahad had, at all times, accepted that his wife’s objections were misplaced and unreasonable.
At first appeal, the County Court held that it was reasonable for the Council to expect such disputes to be resolved within the household:
The objections fell to be considered as primary objections to suitability and the reviewing officer was entitled to reject them as a reasonable basis for refusing the offer in the light of: (a) the lack of foundation for the wife’s objections; (b) the fact that the reviewing officer found that Mr Ahad was given particulars of the property and its location before bidding for it; (c) it was a choice-based bidding system; (d) the Authority was not concerned with matrimonial problems arising between the persons to be housed in a single household and the result of a dispute as to subjective matters of suitability; and (e) the Authority was not in a position to make findings of fact as to the legitimacy of Mr Ahad’s fears about the future of his marriage.
At renewed permission to appeal hearing, Lord Justice Lawrence Collins considered whether this case raised a point of principle or practice in relation to the two part test of s.193(7F) set out in Slater v London Borough of Lewisham [2006] EWCA Civ 394 and applied in Ahmed v Leicester City Council [2007] EWCA Civ 843. That test being both objective suitability for the applicant and a subjective test of whether it was reasonable for the applicant to accept the accommodation.
The Court held there was no point of principle or practice at issue. The Council had taken the ‘new’ facts into consideration and there was no flaw in the reasoning or process.
It is worth noting that the dual test of reasonable and suitable is upheld here, with no question of the subjective test not being required, as suggested by the Court of Appeal judgment in Omar v Birmingham.
I have now got hold of the judgment in X v Hounslow [2008] All ER 337 (May) (thanks to assorted helpful sprites). [Edit 23/06/08 - now up on Bailii]. Previous posts on this one are here and here - this was the case that apparently instituted a potential duty of care for local authorities to protect vulnerable adults from third parties. It could be very significant indeed.
Having read it, I can honestly say I’m not sure what to make of it at all.
First, some clarification. Although nuisance was initially pleaded, a claim in nuisance was not followed through. This therefore has nothing to do with landlord’s liability to the tenant for another tenant’s nuisance. Although there was an alternative claim under the Human Rights Act s.6 and s.7, this was not followed through by the court, as not necessary.
This was, therefore, a claim in negligence only.
Those of us who are housing focussed (to the point of tunnel vision) will be having trouble with the idea of negligence in relation to a local authority housing function (save in relation to disrepair). And I’m still not sure how it is brought about here.
Key, I think, is that there was extensive social services involvement, warnings and requests for a transfer for X