Tag Archive for 'appeal'

How late did you leave it?

Published
by
J
on 19/12/2009
in ASB and FLW case note
. 1 Comment

Not a post about Christmas shopping, (which is all done, thanks to Amazon) but about delays in lodging appeals against ASBOs and the case of R (Birmingham CC) v Birmingham Crown Court; R (South Gloucestershire DC) v Bristol Crown Court [2009] EWHC 3329 (Admin).

When a Magistrates’ court makes a stand alone ASBO (s.1(1), Crime and Disorder Act 1998), appeal (by way of re-hearing) is to the Crown Court. Neither the CPR nor the Criminal Procedure Rules govern such applications, rather, they are dealt with by the Crown Court Rules 1982. Those rules require that notice of any appeal be lodged with the Crown Court within 21 days of the decision under appeal, although the court has power to extend that time. An application to extend time does not (rather surprisingly) have to be served on the respondent to the appeal.

In the Birmingham case, RR sought to appeal his ASBO some ten months after it was made and only after he was convicted for breaching the terms of the ASBO. He suggested that he had been unaware of the ASBO trial (which was untrue, as he had been personally served with both the interim and final ASBO). The judge granted permission to appeal out of time on the papers. BCC questioned this, noting both the lengthy delay and taking issue with the suggestion that RR had not known about the ASBO trial.

A different Judge listed a hearing to permit BCC to make representations and, at that hearing, the original judge who had granted permission out of time confirmed his decision. Even though the court had been misled by the suggestion that RR had not known of the ASBO trial, it was still appropriate to grant permission to appeal out of time.

In the South Gloucestershire case, AW and NW sought to appeal some six weeks out of time. When the council questioned these decisions, it was informed that the judge was “not prepared to revisit” the decision and that the court did not “have to show how it made its decision.”

Both authorities issued procedings for judicial review of the respective Crown courts.

The claims were dismissed. It was important not to treat the 21 day rule as an unimportant formality and an appellant had to explain why they were appealing out of time. The court should also have regard to the problems inherent in a re-hearing, both in terms of deterioration of the memory of witnesses and the additonal costs to a public authority. Whatever decision is reached, the judge must give adequate reasons for his decision.

It was significant in both cases that the appellants were teenagers. Courts were well aware that even unproblematic teenagers did not always do what was in their best interests at the right time. In addition, an ASBO was a serious remedy, particularly when made against younger persons.

In the Birmingham case, it was entirely possible that RR had not fully appreciated the importance of the ASBO being made against him. At the material time he had been arrested for serious drugs offences and was suspected of involvement in an attempted murder. The ASBO may not have been upper-most in his mind. The judge had been wrong, however, not to consider more fully (or at all) the merits of the proposed appeal. The prospect of success was clearly material to whether or not to grant permission.

However, the defect had been cured once the question of leave was revisited at the oral hearing. That hearing had gone on for some 75 minutes and had involved BCC making submissions. In those circumstances, it could not be said that the decision was unreasonable or irrational.

In the South Gloucestershire case, the judge had been given adequate information on which to base his decision. The problem was that he did not give adequate reasons. That was not, however, a sufficient basis to set aside his decision.

However, for the future, appellants should provide details as to the merits of the appal in their grounds of appeal and give reasons for delay in applying. They should also, if possible, address the question of prejudice to the proposed respondent. Consideration should also be given to amending the 1982 rules so as to require such an application to be made on notice to the proposed respondent.

I’m not entirely happy with this as it seems to me that both authorities were treated quite badly here. There is an easy solution of course – simply amend CPR 2.1 so as to make it apply to the Magistrates and Crown Courts in their civil capacity. Perhaps I should mention that in my letter to Santa…

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Costs on conceded appeals

Published
by
NL
on 09/07/2009
in Disrepair, FLW case note and Housing law - All
. 0 Comments

We had noted City of Westminster v Man [2009] EWCA Civ 236 when it was a permission to appeal hearing. Just a bit late, we have found the outcome. The issue was whether an interim costs order, on an application I think, was payable where proceedings as a whole had been stayed under a Tomlin Order. Mr Man had been ordered to pay £1000 by the court below, despite a Tomlin staying proceedings and giving costs against Westminster on the rest of the case. He appealed, acting in person.

Apparently, once the appeal was given permission, Westminster decided not to oppose it. So the issue was conceded However, they refused to settle with costs to Mr Man unless he provided details of his costs, when they might make an offer. Mr Man did not give details and so the matter ended up in front of the Court of Appeal, with nobody attending, no substantive issue and Westminster arguing in writing, incredibly, that due to Mr Man’s unreasonable refusal to give details, Westminster should have the costs of below and preparation for the appeal. The Court of Appeal, astonished to have to sit as a three strong panel with no-one in front of them on this, simply said Westminster had no ground at all for their view. They should simply have applied to have the appeal allowed with costs against them in appeal and below. So that was the order made.

Rather disappointing not to have argument on the Tomlin stay point, but what were Westminster thinking?

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Catch-up miscellany

Published
by
NL
on 02/12/2008
in Allocation, FLW case note, Homeless, Housing law - All and secure-tenancy
. 23 Comments

Thanks, as ever, to Jan Luba and Nic Madge in Legal Action for putting out notes on cases, including those that don’t make the reports. There were a few of those in December’s Legal Action that are worth a mention – of course, all I have to go on is the LA note. (Hint – anyone sending a report to Legal Action could also think about sending one here, or you could send a report here even if you don’t intend to send it to Legal Action. Full credit given – in a larger type size than LA, at that. Not that there is any rivalry intended, heaven forfend, we just like having new case info and things to speculate about up on the blog).

First up is Birmingham City Council v Qasim (Birmingham County Court 8 October 2008). An admin officer in Brum’s housing department had arranged for 14 tenancies, completely outside the allocation process and with no authority. These had been disguised as mutual exchanges, where there were no exchanges. An audit report found no evidence to show complicity by the tenants in the fraudulent behaviour of the officer.

Birmingham sought possession on three alternative grounds:

1. The grant of tenancy was an unlawful allocation and so a nullity

2. HA 1985 Sch 2 Ground 1 and tenancy agreement – repossess the property where false information given to get the tenancy, or someone has given false information on the ‘tenant’s’ behalf.

3. Ground 6 – mutual exchange for a premium.

One of the Defendants, supported by the others, applied to strike out the claim on the basis that there were no reasonable grounds to bring it.

On the evidence, the Circuit Judge found:

Ground 6 was not available as there were no exchanges

Ground 1 was not available on lack of evidence of false information being given

The CJ then turned to the unlawful allocation. He found that Islington LBC v Uckac [2006] EWCA Civ 340 was the relevant binding precedent and that therefore Birmingham could only obtain possession on one of the Schedule 2 HA 1985 grounds. Accordingly, the possession claim was dismissed.

With all respect, this strikes me as questionable. Uckac simply doesn’t address the unlawful allocation point, and if that point is right, there is no secure tenancy. This is a different point to the rescission argument in Uckac – see paras 25 and 26. I understand that Birmingham are appealing, and for once I would have to say I am not surprised.

Notting Hill Housing Trust v Deol (Brentford County Court 10 October 2008) – confirms that a s.21(4) notice must either expire on the end of the term of the tenancy (periodic) or have a functioning saving clause, ‘after expiry of two months from the service upon you’ won’t do unless the days add up right. Oh and a month is a calendar month, not a lunar month (how desperate was counsel for the landlord?).

R(Hyslop) v Legal Services Commission [2008] EWHC 2294 (Admin) – retention of property (including a long lease) incurs a statutory charge, even where the loss of the property is only ‘theoretical’ due to the claim being hopeless and doomed to fail. As an aside, how does one rack up £6,371 of costs at legal aid rates on defending a ‘doomed to failure’ possession?

Kelly v Westminster City Council (Central London County Court 14 August 2008). A s.204 appeal. On review, Westminster upheld a decision that a 49 year old man who had asthma, back pain, depression and a history of crack cocaine use and of imprisonment was not vulnerable. This was despite the fact that he had at best stayed with friends, or crashed at crack dens while out of prison for intermittent periods since 2005. His homeless application was supported by a letter from a prison officer stating that he was institutionalised and would relapse on release. Westminster, in its wisdom, decided that he was not institutionalised and that he had managed to secure accommodation in the past.

On appeal, the Court found that the findings that Mr Kelly was not institutionalised and could find accommodation were so unreasonable, no reasonable review officer could have made them. The prison officer could not decide on vulnerability, but was capable of assessing whether someone was institutionalised. Staying with friends or in crack dens could hardly be taken as ’securing accomodation’. In any case Mr Kelly had been recalled to prison because he couldn’t secure accommodation. Decision quashed. What can one say? I mean really…

Melka v Tower Hamlets LBC (Bow County Court 7 July 2008) – Interim accommodation in an area could amount to a local connection/normal residence. There was no rule that interim accommodation could not amount to residence of choice s.199(1)(a) HA 1996. A witness statment from a review officer that stated that an issue had been considered did not rewrite a decision letter that had failed to address a relevant issue.

A post on R(M) v Barnet LBC [2008] EWHC 2354 (Admin), which we had unaccountably missed, will be up in a day or so (make it two) – Children Act 1989 s.17 and s.20 duties.

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Addiction, relapse and priority need

Published
by
NL
on 17/10/2008
in FLW case note, Homeless and Housing law - All
. 2 Comments

Simms v London Borough of Islington [2008] EWCA Civ 1083 is Court of Appeal case from a s.204 appeal.

The issue was vulnerability, the Pereira test, and the use of medical evidence.

Mr Simms was homeless,sleeping in his car, having lost his home after losing his job. He had an addiction to crack, asthma and suffered from depression and panic attacks. He applied to Islington as homeless, with support from Addaction Hackney, which pointed out the dangers of homelessness for his progress in drug treatment. His doctor first reported moderate depression and drug use.

At s.184 Islington found not vulnerable, following the recommendation of their medical advisor, who had not seen Mr Simms.

A further medicial report from Mr Simms doctor was submitted for the s.202 review. This report and the solicitor’s submissions highlighted the risk of relapse into drug use if Mr Simms was street homeless, the solicitors arguing that this was a clear injury or detriment.

Islington’s s.202 upheld the s.184, on the basis that his depression was not enough to make him vulnerable and that drug addiction was not a medical problem. The review letter mentioned the doctor’s second report. No further advice from the Council’s medical advisor was sought.

Mr Simms appealed, on the basis that:

(1) that the reviewing officer had not properly taken into account whether, having regard to the risk of a relapse, the appellant was vulnerable as a recovering drug addict for some “other special reason”;

(2) that the reviewing officer had not properly taken into account all the medical evidence bearing in mind that the council’s medical assessment adviser had neither seen the appellant nor consulted with his advisers. Moreover she had not been given the opportunity to consider Dr Anantha’s second report of 2nd May;

(3) that the reviewing officer had not properly considered how street homelessness would impact on the appellant’s psychiatric condition.

The s.204 appeal failed and was taken to the Court of Appeal on those grounds.

Held:

On the s.202 decision letter, the decision-maker had not overlooked the risk of relapse. The Council were well aware that Mr Simms was receiving assistance for his addiction and this had clearly been a factor in finding he was not Pereira vulnerable.

On the medical evidence, the decision-maker stated, correctly, that it was the LA’s duty to determine vulnerability. They were entitled to prefer the evidence of their medical adviser and there was no requirement in every case to refer any further medical reports to the advisor (Shala distinguished). The differences between the first and second report from Mr Simms’ doctor were not so great as to require a second opinion from the advisor. The review letter as whole did not give any reason to think that the decision-maker was not aware that the medical advisor had not seen Mr Simms or consulting his doctor.

The question of the impact on Mr Simms’ psychiatric condition was not arguable if the appeal otherwise failed. In any case, it was clearly considered by the review officer in the s.202 decision letter and she was entitled to decide it did not render Mr Simms vulnerable.

Overall, not a happy case, but evidence, if more were needed, that the Shala conditions on use of medical reports and advice is concerned with specialist advice and reports from those qualified in the field. Where it is clear that an adviser has not seen the homeless applicant, by itself this does not render their advice of no or limited value.

The issue of danger of relapse into addiction as vulnerability is not closed off. What was upheld here was that the decision-maker was entitled, on the evidence before her,to take the view that she did. The view that although a self induced drug alcohol problem was not a reason for vulnerability, the risk of relapse may be, suggested by Crossley v Westminster CC [2006] EWCA Civ 535, [2006] H.L.R. 26, remains open.

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