Tag Archive for 'homelessness'

Brief news

Published
by
Nearly Legal
on 12 July 2008
in Housing law
. 3 Comments

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.

S.204 Appeal out of time

Published
by
Nearly Legal
on 12 July 2008
in Housing law
. 1 Comment

Barrett v LB Southwark [2008] EWHC 1568 (Comm) was an appeal of a dismissed application for permission to make a s.204 appeal out of time on an intentional homelessness decision upheld at s.202 review. For some reason it was heard in the Commercial Court (?) and it isn’t yet on Bailii, but is on Lawtel for those that have access.

First a note of the judgment, and then a spot of finger pointing.

Ms Barrett is profoundly deaf with three children, two under 18. She became homeless after a mortgage repossession, because she couldn’t keep up payments. After application to Southwark as homeless, she was notified on 2 July 2007 that they had decided she was intentionally homeless. Ms Barrett went to Blackfriars Advice Centre, who submitted a ‘detailed submission’ for the s.202 review. Southwark finally finished the review in February 2008. The review decision was dated 7 Feb. It contained Southwark’s standard line that the right to appeal must be exercised “within 21 days from the date of this letter”. The review decision was received by Blackfriars on 14 Feb. On 15 Feb, Blackfriars notified Ms B of the decision and advised her she had 21 days to appeal and that she needed to see a solicitor. (Blackfriars don’t have funding for representation). She received the Notice to Quit from temporary accommodation on the same day.

According to Ms B’s evidence, there was then a lengthy and sorry tale of trying to find representation, receiving wrong advice from various sources, including solicitors, and finally getting a decent solicitor on 2 April. An appeal with application for permission was lodged on 3 April 2008.

The application for permission was refused by HHJ Gibson at Lambeth County Court. That decision was appealed to the High Court.

S.204(2) HA 1996 states that:

An appeal must be brought within 21 days of his [appellant] being notified of the decision, or, as the case may be, of the date on which he should have been notified of the decision on a review.

S.204[2A] adds

The Court may give permission for an appeal to be brought after the end of the period allowed by (2), but only if it is satisfied
(a) where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time, or
(b) where permission is sought after that time, that there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.

Here the issue was primarily S.204[2A](b). However the Court makes time to correct an error in HHJ Gibson’s judgment about the date from which the 21 days runs.

The date from which the 21 days runs is the date on which the applicant is notified of the decision. We all knew this, there are sufficient previous judgments on the matter, so I don’t know what HHJ Gibson was doing taking the date as the date on the letter.

Southwark’s routine line at the end of both s.184 and s.202 decision letters is wrong, and Southwark know it is wrong. In this case, the High Court also decided that one could not take the date the decision letter was received by the applicant’s advisors as being the date the applicant was notified. The proper date was 15 Feb. I’m not sure this would hold if it was solicitors advising on the s.202, rather than an advice centre, but it is an interesting point if one really needs to argue the extra day or so.

Much of the rest turns on the specific facts of the case. Ms B’s profound deafness and telephone communication via a not wholly functional type talk relay system, combined with the advice that ’she needed a solicitor’, and her lengthy and determined efforts to find a solicitor, were considered. The High Court reversed HHJ Gibson, finding that there was good reason for the failure to bring the appeal in time and for the delay in applying for permission. The delay was because Ms B was seeking advice she could undestand and follow, and she had not received it until 2 April. In addition, although this is not a requirement for the exercise of discretion under s.204[2A], the appeal was not hopeless and had merits.

There are some general points to note.

‘Good reason’ should not be taken as simply a synonym for ‘valid reason’. Good reason has its common parlance meaning. The definition of ‘good cause’ in Social Security Commissioners Decision R(S) 2/63(T) expressly approved. it reads:

In Decision C.S 371/49, the Commissioner said “”good cause” means in my opinion, some fact which, having regard to all the circumstances (including the claimant’s state of health and the information he had received and which he might have obtained) would probably have caused a reasonable person of his age and experience to act or fail to act as the claimant did”. This description of good cause has been cited in countless cases. it has stood the test of time. In our judgement it is correct. The word ‘fact’ of course means a combination of events happening either simultaneously or in succession.

Refusing to accept unfavourable advice, by itself, does not rule out good cause. (This is reference to an odd part of HHJ Gibson’s judgment, apparently saying that she should have accepted the unfavourable (and actually actively bad) advice, and by pressing on, she lost ‘good reason’ for delay.).

On costs, it is accepted that on an application for permission to appeal out of time, the costs should usually be borne by the applicant, although in this case, Southwark had sent Counsel to oppose the application rather than left it to the Judge, which would also be a consideration on costs. Ms B got the costs of the appeal of the decision on permission, with no order as to costs on the intial permission hearing.

Now for the finger pointing. Ms B’s evidence gave a detailed account of trying to find a solicitor to take on the appeal. She went to the Law Society’s find a solicitor site. All of those she initially contacted turned her away, referring her to others. The judgment speculates that solicitors were reluctant to take the case because

It appears that legal aid housing advisors get paid only a limited fixed fee for their work in this field, and dealing with a deaf client adds to the time to be spent on the case.

I don’t know where the Court got this from (I suspect a misunderstanding, but then I haven’t yet met any Counsel who fully understand how funding actually works), but it is, of course, wrong. A s.204 appeal would spend about 60 minutes on a fixed fee legal help before devolved powers were used to enable the appeal to be drafted, grounds prepared and issued.

What is clear is that Ms B spent a lot of time trawling round firms, both legal aid and non-legal aid. Her statement, as paraphrased in the judgment, makes for deeply discomfortingly reading. Now, I grant that none of the firms mentioned got to put their account of events, but I would also say that some of the ‘who and what’ did not surprise me. So, I quote:

Ms Barrett’s daughter spoke to Andrews Solicitors without revealing Ms Barrett’s deafness and they agreed to give her an appointment. When she arrived she says they told her that nothing could be done. They did not tell her why that was so; she never received a client care letter or any letter confirming the advice. She thinks she was asked to pay about £130 for this service. [Interesting, Andrews do or until very recently did legal aid!]

On 12 March Ms Barrett secured an appointment with Messers Gan & Co, and she was told she should ‘forget trying to bring an appeal’. The solicitor did not explain why but drafted a letter for her to send to the Council requesting that they extended the deadline for termination of her temporary accommodation. She was handed a summary of what had been said. The note starts: “we have objected to Notice to Quit - this is best.

Ms Barrett found out about a service called Community Legal Advice [presumably the CLS advice line] and she contacted their helpline on 19 march. the following day she received an advice letter in which it was said “the decision can only be appealed within 21 days of the date of the review decision, which will have passed in your case. You can stil make the application, but the court may reject it for being out of time”. They further said that bringing an appeal was “outside our remit as we do not deal with civil claims”. The organisation sent her a list of solicitors whoe, they suggested, she should contact. [If this is the CLS, well done. Wrong advice and actually fibbing about being able to act in a s.04 appeal - they can and do, via Derbyshire Housing Aid.]

Ms Barrett tried Glazer Delmar, was offered an appointment but was told they weren’t able to help when she got to their office having taken the day off work.

Next Ms Barrett

was told by Messers Peter Otto & Co that if she paid a fee of £60 they would try and help her. She paid. The person concerned rang up the Council and suggested she should return to the HPU to make a new application. {The HPU told her she was wasting her tine and the advice was wrong] She went back to the solicitors who “didn’t want to know and told me to leave”.

Finally, via Southwark Law Centre and the Southwark housing lawyers group email ring, Ms Barrett’s case was picked up by Pierce Glynn, who took the case to this appeal. Counsel was Stephen Reeder.

Where to start? Honestly, where to start? Obviously, I know the area. I can certainly believe that many firms referred Ms Barrett on. I can pretty safely say she didn’t contact my firm - I would almost certainly have been the one taking the call - but I can’t say that we would have been able to take the case. Maybe so, but we were pretty swamped then (as now) and I would probably have given her some other firm’s numbers and the CLS line and website. No issue about deafness would have been involved. I suspect the same would have been true for quite a few other firms.

However, if Ms Barrett’s statement is even close to a representation of events, the treatment that she received was at worst incompetent and exploitative - what the hell were non-legal aid, non-housing firms doing taking her money? Or in one instance what was a supposed legal aid, supposed housing firm doing taking her money and giving bad advice? - or at best careless of her situation. After all a day off work, unpaid, is a big deal.

Add in the well meaning but utterly out of their depth and plain wrong attempts at assistance by the Royal Association for Deaf People - for pity’s sake, advice people should not try to deal with these situations by having a stab at utterly unknown law themselves - and it is clear that, with the honourable exceptions of Blackfriars Advice Centre and Pierce Glynn, Ms B was pretty comprehensively failed by advice and housing law provision in Southwark/Lambeth.

At first glance, this looks like a strong argument for an LSC style CLAN - integrated diagnosis and referral across a network of providers. But then look at what the Community Legal Advice line did for her. And this is the LSC flagship for the new world of advice provision.

Frankly, I find this all very depressing. I know full well that there are lazy, incompetent and exploitative firms out there. I’ve been against them in a few cases. And there are some very good legal aid housing firms in this area of London, but I suspect that these were the ones at capacity. So where is the additional capacity? Because, on this anecdotal evidence, there isn’t much point in relying on the CLA phone advice to pick up the slack.

In passing…

Published
by
Nearly Legal
on 4 July 2008
in Housing law
. 1 Comment

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.

Deficiency in a decision

Published
by
Nearly Legal
on 19 June 2008
in Housing law
. 4 Comments

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...]

Suitability and marital harmony

Published
by
Nearly Legal
on 10 June 2008
in Housing law
. 2 Comments

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.

Third party costs against Councils?

Published
by
Nearly Legal
on 3 June 2008
in Housing law
. 1 Comment

Very interesting post on Housed this evening on the possibilities of seeking a costs order against a local authority for a possession order obtained by a private landlord where the LA has refused to take a homeless application from the tenant until they are evicted. The post contains an advice by Tony Ross of 1 Pump court on the matter.

Hmm. I need to have a think. What about funding for the application?

Interim Accommodation and Judicial Review

Published
by
Nearly Legal
on 28 May 2008
in Housing law
. 0 Comments

Lusamba, R (on the application of) v London Borough of Islington [2008] EWHC 1149 (Admin) concerned a judicial review application on failure to decide on provision of interim accommodation pending review of a negative s.184 HA 1996 decision. It raises interesting procedural issues and a few issues on dependency of family members for priority need.

The application for judicial review on grounds of failure to make a timely decision on interim accommodation was made on 10 April 2008, after a review request on 4 April 2008.  On 15 April 2008 at oral hearing, which islington missed as they had not been notified by the court, permission was granted and temporary accommodation ordered. On 28 April, Islington made a decision and refused interim accommodation. Islington applied on 1 May to discharge the interim injunction. The interim relief sought had been temporary accommodation pending not just decision but until the s.205 review decision, which this Court notes extends considerably beyond the final relief sought.

This hearing was of Islington’s application, which was also made on the basis that permission had been granted before the time for an acknowledgment of service had expired, with no abriding order, and that Islington had not had notice of the hearing.

The Court found that as the decision on interim accommodation had now been made, the proceedings as issued must fail. The application for interim accommodation pending review could not now be based on the allegation that the required decision had not been made. In fact interim accommodation could only have been ordered on the basis that it was until the decision on interim accommodation was made.

The Court’s options were either to treat the hearing as the full hearing or dismiss the application and discharge the application. But this did not take into account what was effectively a further application, via the Claimant’s response to the Defendant’s application to discharge. Not a formal application but one in substance, that the decision of 28 April not to provide interim accommodation was unlawful, meriting interim accommodation until review decision as relief. The Court then considered this de facto application on its merits on the basis that both parties had in any case consiered their positions on the decision letter.

The original homeless application was made on the basis that the applicant had a dependent, her 18 year old sister, both French nationals. The sister was a full time student and the applicant was apparently receiving child benefit and child tax credit for her on that basis. The Council’s refusal for interim accommodation emphasised that, although an 18 year old in full time education can be a dependent, the guidance suggests that the relationship should be akin to a parent and child relationship. In addition, the sister had been in the UK for a year or so before being in education and before receiving any support from her sister.

The Court found that the applicant had not provided any new material after the s.184 decision and one would expect detailed material on dependency to be provided. There was nothing to include the present case iside what the guidance envisaged as dependency. The Court had real difficulty in seeing how the s.202 review would be succesful, but for its purposes, there wasnothing to suggest that the decision letter refusing interim accommodation was anything other than a proper response or contained an error in law.

On that basis, there was no point in formally amending proceedings. This was to be treated as the full hearing of the judicial review application and it was dismissed and injunction discharged.

There is an illustration here of the importance, but also the difficulty when in a hurry, of getting application, grounds, final relief and interim relief all lined up properly when making an urgent application. But also an illustration of the convolutions that the problems the Admin Court is facing can sometimes result in, when one effectively turns out to be applying for something else altogether, simply through time and events.

Caravan sites and Tomlin orders

Published
by
Nearly Legal
on 21 May 2008
in Housing law
. 1 Comment

A couple of interesting permission to appeal hearings have appeared on Bailii. Permission granted in both cases for Court of Appeal hearing.

Lee v Rhondda Cynon Taff County Borough Council [2008] EWCA Civ 523 concerns whether a Local Authority should have considered the acquisition of a plot for a caravan in the context of a review of an offer of ’suitable’ accommodation following assumption of housing duty to a homeless Romany Gypsy.

City of Westminster v Man [2008] EWCA Civ 532 arose out of a claim for unpaid service charges. It concerns whether a Tomlin Order, staying the proceedings, means that an earlier order for costs in the proceedings, not mentioned in the Tomlin Schedule, is unenforceable due to the stay. Not necessarily of interest to many housing people, but we use Tomlins a lot in disrepair and nuisance claims, so this is worth keeping an eye on.

Cardiff homeless - tactical lessons?

Published
by
Nearly Legal
on 6 May 2008
in Housing law
. 5 Comments

Thanks to Housed and Garden Court’s bulletin for the pointer to this Ombudsman’s report [pdf] on Cardiff’s failure to provide temporary accommodation pending enquiries on what was a prima facie case of ‘not reasonable to remain’ homelessness.

Cardiff were operating a ‘housing options’ filtering scheme and refused to accept Mr F as homeless until he had notice of eviction.

I don’t want to go through the details - which will surely sound very familiar to most housing advisors. Instead, I wanted to look at the case in terms of tactics for advisors and the utility of various routes.

In this case, the Ombudsman awarded compensation of £1500. It is not clear when the complaint to the Ombudsman was made. However, Mr F’s first approach to the Homeless unit was in March 2006. He was not put into temporary accommodation until about August 2006, after a possession order was made, and this was apparently after the Ombudsman had begun investigations. The Ombudsman’s report is dated 16 April 2008. So, although the report is completely devastating in regards to Cardiff’s then practices, it was of little avail to Mr F at the time to complain to the Ombudsman, as he was still not taken into temporary accommodation until after a possession order, despite the investigation. The report then took at least 18 months to appear.

Mr F did have the help of a solicitor during the period March - August 2006. The solicitor apparently repeatedly called and wrote to the HPU during this period, pointing out the conditions Mr F and his family were living under, the intentions of the landlord and also supplying evidence of medical concern about the impact on the health of the infant son.

In that sense, the solicitor provided all the information that Cardiff could reasonably have required to actually make a decision, let alone find that a s.183 HA 1996 duty was triggered. But Cardiff didn’t respond. A passage from a solicitor’s letter from May 2006 (two months in) is quoted in the report:

Mr [F] is living in accommodation which is currently being extensively renovated by his landlord. We have spoken with the landlord and in the landlord’s opinion the premises are not fit for habitation, and as you will appreciate Mr [F] is extremely limited in the accommodation which he can obtain bearing in mind his limited resources.

Whilst we appreciate that the landlord has given him Notice to Quit, it does appear that the premises may be unreasonable for him to occupy at the present time and we would be grateful if you would kindly look into considering his homelessness application on that basis.

Cardiff simply ignored this and the other letters and calls. Although they had no justification for ignoring them, (and tried to blame an individual officer), I’m not surprised at the lack of response.

I have no idea if the solicitor was a housing specialist - they are said to be the ‘family solicitor’ - and I don’t want to be particularly harsh, not knowing the circumstances of their instruction. But I do think there is a general tactical lesson to found here.

In my view, when your client’s circumstances are such that there is a clear prima facie housing duty under s.183, pending enquiries, one needs to give the recalcitrant local authority all the reasons why the duty has been triggered, and the history of the client’s presenting to the LA.

But one doesn’t ask the LA to look into it, one insists that they respond, via a Judicial Review pre-action protocol letter before claim. And one insists that the LA respond pretty much immediately, with a deadline beyond which an application for Judicial Review with interim injunction application will be made with no further notice. Copy the letter to the LA Legal Services. Then, if there is no reaction in time, make the JR application. (Assuming there is time, I’d usually want to get Counsel’s advice and drafted grounds pre-issue, of course).

Sadly, asking the LA to kindly look into it will often at best get a delaying response, at worst achieve nothing at all.

I have no doubt that I might be regarded as unduly aggressive in advocating these tactics. But, as the Cardiff Ombudsman’s report makes clear, one is properly insisting that the LA comply with their legal duty, not asking a favour or trying to persuade them to do the right thing. It is worth looking at the response of the then operational manager of Cardiff’s homeless services to see why the ‘giving the LA the information and asking nicely’ approach might well be of little utility. In interview with the Ombudsman, the manager:

was unable to give my investigator the current definition of homelessness saying that it had been a long time since he had looked at the legislation. When asked to expand on the statements in the formal response as to the overriding priority being given to homelessness prevention, the Operational Manager moved away from this position saying that he had not wished to convey an impression that considerations about homelessness prevention would over-ride the assessment process as a matter of course but went on to say that local authorities in Wales have a performance indicator to reduce homelessness applications, this being a consideration in future grant awards and it is appropriate that the options of advice and prevention should be a first response.(33)

So he didn’t know the law and was pre-occupied entirely with reducing homeless applications. Given Councils’ policies (and Government pressure), it is not surprising that these should be the concerns of homeless units. (That this is about policy driven practice, rather than any individuals working in HPUs, should be clear).

The merit of the aggressive (but still polite, of course) approach is that it bumps matters up to Legal Services immediately, who are, at the least, going to have to deal with the more obvious legal deficiencies in their client’s dealings. If this doesn’t get results straightaway, carrying through the threat with an application for JR with injunction application focuses minds wonderfully.

The benefit of the approach is the likelihood is that the client’s application will be accepted and they will receive temporary accommodation quickly. It is therefore hugely in the client’s best interests.

However, there is a caveat. Should the LA choose to fight the JR, rather than act to remove the grounds (effectively settling the case), it will take months to years to get a substantive hearing at the Administrative Court. There is no one simple answer to what happens to the client in the meantime - it entirely depends on the ongoing situation.

There will also be people, I have no doubt, who will object that making applications like this is why the Admin Court is bunged up and that this is a needless waste of the Admin Court’s time. I entirely agree. It shouldn’t be necessary to have to threaten and make applications in this way, only for the LA to back down in the light of its indefensible position.

I should also be clear that I am no fan of making an application as a threat, regardless of the details of the client’s case. But where the client has a viable case, their interest is paramount, and if the LA’s inaction means an application, so be it.

As a post-script, I’d like to mention that I will put up a related post shortly about issues of independence and the ability to take an aggressive approach to local authority decisions (or lack of them) in this way, provoked by some posts on Housed’s blog.

Fair and commonsense reviews

Published
by
Nearly Legal
on 1 May 2008
in Housing law
. 1 Comment

So, then

Omar v City of Westminster [2008] EWCA Civ 421

Briefly, the facts were that Mr Omar made a homeless application to Westminster. His household consisted of his wife and his infant son who had just been born and was, at the time of the application was under special care at Kensington & Chelsea hospital. The son was discharged on 28 December 2006. Westminster accepted a duty on 15 January. The family were given temporary accommodation in a hotel. On 19 February Westminster offered a two bed property in Walthamstow E17 for temporary accommodation under s.193 HA 1996. Mr Omar refused the offer, stating that his infant son had a further hospital appointment at Kensington & Chelsea. Mr Omar provided a letter from January 2007 confirming post discharge weekly appointments and another letter confirming an appointment on 21 February.

Westminster wrote on 23 Feb 2007 discharging duty to accommodate under s.193(3) and 193(5). A review was requested of both suitability of the offer and decision to discharge on the basis that Mr Omar relied on the medical support in the Westminster area and family support in the area. Further medicial information was received from the hospital on 4 May 2007 with a current prognosis. Westminster’s review was negative. The decision letter mixed past and present tenses in addressing the situation, but takes as a main basis the report of 4 May 2007 from Kensington and Chelsea Hospital on the then current care and prognosis for the baby.

At s.204 Appeal, the Judge found that:

  1. As to the suitability of the property, the reviewer was entitled to consider the position at the review date - subsequent to the first decision.
  2. As to the decision to discharge duty, the review had to be limited to the facts at the date of the decision, but that in this review, the reviewer had so limited themselves.
  3. There was, in any case, no point in sending the matter back for further review as the same decision was bound to be reached.

The Court of Appeal, in LJ Waller’s sole judgment, reversed this and directed the matter back for further review.

The Court take an avowedly commonsense appproach:

It seems to me that the question of what facts may be taken into account on the review will depend on what is being reviewed and must, unless there is some compelling legislative provision which dictates to the contrary, be dictated by what fairness requires.(25)

Thus where the decision-making process effectively continues up to the end of the review, it is fair to consider the facts as they are at the date of the review. But when, as here, the decision is final at a certain date, and, as per Osseily v Westminster City Council [2007] EWCA 1108, duty is discharged at that time, not somehow postponed until the end of the review; then it is the facts at the date of the initial decision which are at issue (even if what those facts are comes to light later on - it is fine for the reviewer to find things out later about that point).

Having set out its commonsense goal, the judgment performs some remarkable acrobatics to show that this view is either compatible with, or distinguishable from previous cases: Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547; Sahardid v Camden LBC [2005] HLR page 11; and in finding support in Robinson v Hammersmith and Fulham LBC [2006] 1 WLR 3295.

These paras, 27-31 are well worth reading as a masterpiece of teleological analysis.

In this case, the County Court Judge was:

  • wrong to separate suitability of accommodation and the discharge of duty decision
  • wrong to hold that on suitability facts up to the date of review should be considered, because duty had already been discharged
  • wrong on the review decision letter, which was clearly fundamentally based on the later information of 4 May, so the argument that no other decision was possible on the facts fell.

The general principle for any review under Housing Act 1996 (suitability of accommodation, housing duty, suitability of offer of permanent accommodation, presumably) is, as far as I can see, as follows:

The ‘cut off date’ for what facts should be properly considered by the reviewer depends on what is being reviewed.

Where the review is effectively a continuation of the decision-making process, the facts continue to be relevant up to the date of the review. An example would be a review of suitability requested by someone who had at the same time accepted the property and is in occupation.

Where the decision is a final one, no facts relating to a point after that date are relevant to the review. So a discharge of duty or, as far as I can see, where an offered property is no longer available after refusal (but there has been no discharge of duty), that date of first decision is the cut off point for relevant facts on review. But remember, this is the date to which the facts relate, not the facts known to the decision-maker on that date. Any facts that subsequently come to light that concern that date are relevant to the review.

Report to come…

Published
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Nearly Legal
on 1 May 2008
in Housing law
. 1 Comment

I previously mentioned a Garden Court report on Omar v Westminster. There is also a brief Times report here.

The full judgment is now out on Bailii and is interesting.

Omar v City of Westminster [2008] EWCA Civ 421 (03 March 2008) on reviewing suitability of s.193 temporary accommodation.

I’ll get to it tomorrow (or later today, now).

EU homeless and education

Published
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Nearly Legal
on 21 April 2008
in Housing law
. 2 Comments

A Court of Appeal case, concerning eligiblity for housing assistance via EU status

London Borough of Harrow v Ibrahim & Anor [2008] EWCA Civ 386 (21 April 2008)

The facts are, briefly, Mrs Ibrahim is a Somali national, married to a Danish national. He came to the UK in 2002 and worked until 2003, when he claimed incapacity benefit to 2004. He was then declared fit. He didn’t take up work and left the UK shortly afterwards. he returned in December 2006 and remained without work.

Mrs Ibrahim and their four children joined Mr Ibrahim in the UK in Feb 2003. The children started school in Harrow and have remained in school ever since. Mrs I is separated from her husband, has not worked and relies on benefits. In January 2007 she applied as homeless. Neither Mr nor Mrs I qualify as having a right to reside as worker, work-seeker or self-sufficient. So, unless the children had a right to reside, they would be subject to immigration control and not eligible for housing assistance. Mrs I as carer relied upon her children’s right to reside.

After a negative s.184 decision and s.202 review, the Recorder in a s.204 appeal found for Mrs I, that the children had a right to reside under art 12, Regulation (EEC) No 1612/68 (the 68 reg). Harrow appealed.

The issue is deceptively simple. It has long been held that children of an EU citizen (or the spouse of an EU citizen) who at one point had the right to reside, as a worker or otherwise, and who entered education in the host country when that right was being exercised, had the right to reside in order to continue that education, via Art 12 of the 1968 regs. This was regardless of whether the initial person had ceased to have the right to reside or had left the country. Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091

However:

  • Baumbast concerned people who were self-sufficient, without specifically referring to or addressing the fact.
  • More importantly, the 68 reg had been, at least largely, supplanted by the Directive 2004/38/EC of 29 April 2004 (the “2004 Directive”) and the corresponding provisions of English law in the (European Economic Area) Regulations 2006 (the “2006 Regulations”).

The 2004 Directive was intended as a unifying of the previous piecemeal right to reside provisions. But it did not expressly repeal art 12 of the 68 regs, when it did expressly repeal other articles (10 and 11) in the same Regulation.

The 2004 Directive (and the 2006 Regulations) hold;

  • that the right to reside to continue education is available when the parent who initially had the right to reside has died or left the country.
  • that “Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.” (Art 14 2004 Directive). But residence as worker does not have such a condition, see Art 7(1)(a) 2004 directive.

Mrs I contended that, as art 12 of the 68 reg was not repealed, the broad principle of art 12 and Baumbast remained. Mrs I’s situation was a lacuane in the 2004 Directive as Mr I had not died and had lost the right to reside as worker/workseeker by the time he left the UK. There was no requirement of self-sufficiency to reside as a worker and was none in the 2004 Directive. Baumbast had held no such requirement.

Harrow and the Secretary of State as intervener contended that the 2004 Directive is the sole source of rights of residence and was clearly intended to incorporate Baumbast. That Art 12 wasn’t repealed didn’t matter when Art 10 of the 68 reg was repealed, as Art 10 was the source of rights of residence. In any case, the 2004 Directive made self-sufficiency an over-arching requirement for any other right to residence other than the specific exception of a worker and his family. So Mrs I didn’t meet the conditions as i) she wasn’t self-sufficient and ii) Mr I fell outside the Directive as he was neither dead, nor a worker/work-seeker when he left the UK.

The Court of Appeal leaned towards Harrow’s view, but found that the issues are not acte clair, in particular on the concept of ‘departure’ in the 2004 Directive and how far Baumbast could give an independent right to reside based on Art 12 of the 68 reg alone. So they referred questions to the European Court. Specifically:

In circumstances where (i) a non -EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:

(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;

OR

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

(ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

Hmm. Interesting. This could affect a fair few people.

Nicola Rogers was instructed by Shelter for Mrs Ibrahim. Kelvin Rutledge and Sian Davies were instructed by Harrow, and a brace of QCs, Clive Lewis QC and Elisabeth Laing QC for the Secretary of State for the Home Department.

Women’s refuges and homelessness

Published
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on 17 April 2008
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Manchester City Council v Moran & Richards v Ipswich Borough Council [2008] EWCA Civ 378

This is a very important Court of Appeal judgment, which will have significant impact on Women’s Refuges and women fleeing domestic violence.

These were two appeals, conjoined, both featuring women whose stay at refuges had been ended following incidents and who faced findings of intentional homelessness on homeless applications as a result. The difference was that Moran had the decision as s.184 decision on application as homeless after leaving the refuge and the other, Richards, had been in the refuge after an application and acceptance of duty, with the refuge as temporary accommodation under s193 HA 1996, so duty was discharged on her making herself intentionally homeless.

In Manchester v Moran, Manchester were appealing a finding on s.204 appeal that the refuge was not accommodation (or accommodation in which it was reasonable to remain) for the purposes of s.193 HA 1996. In Ipswich v Richards, Richards was appealing a .s204 appeal finding that the refuge was accommodation in which it was reasonable for her to remain.

In both cases, if the refuge was not accommodation (or accommodation in which it was reasonable to remain), the findings of intentional homelessness would fall.

In general, local authorities have followed R v LB Ealing Ex p Sidhu (1982) 2 HLR 48 (Sidhu), in which the High Court found that a refuge could not be considered as accommodation for the purposes of the Housing (Homeless Persons) Act 1977, then in force. In addition, guidance from the Secretary of State issued in July 2006 suggests at Chap 8, para 8.34 that it should not be regarded as reasonable to continue to occupy such accommodation as women’s refuges in the medium and longer term; and at Chap 16, para 16.27, in a discussion of suitability (not reasonableness) that placement in a refuge should be a temporary expedient only for the minimum period necessary.

Broadly, the argument advanced by Moran and Richards updated Sidhu, so that a refuge could not be considered to be ‘accommodation’ for the purposes of s.175 and s.193 HA 1996; or if it was accommodation, it could not be accommodation that it was reasonable to continue to occupy. In addition, there were sound policy reasons for such a view. If a woman could not make a homeless application while accommodated in a refuge, the refuges would quickly silt up completely with women waiting on Part VI applications.

The Court of Appeal, in the sole judgment of Lord Justice Wilson, found that Sidhu could not be accommodated with the later  judgments in Puhlhofer v Hillingdon LBC [1986] AC 484 and R v Brent LBC ex p Awua [1996] 1 AC 55. Following the House of Lords in Puhlhofer, it was impossible not to consider a refuge to be accommodation for the purposes of s.175 HA 1996.  Puhlhofer took a very broad definition of accommodation, refusing a purposive view. (In fact Puhlhofer precipitated the introduction what is now s.175(3) HA 1996 - reasonable to continue to occupy).

Following Awua, the Court held that reasonable to occupy was not equivalent to ’settled’ accommodation. In addition refuges did not fall under any of the statutory exclusions from reasonable to occupy, and there was no order made by the Secretary of State excluding refuges pursuant to s.177(3)(a).

In any case, the nature of refuges had changed since 1982, and they could no longer be equate to short stay or emergency shelters.

The accommodation in the present cases was such that it was reasonable for the women to remain. There was no immediate threat of the termination of their licence. It was expected, as set out in the evidence of the WRA, that women would stay for months, even up to two years, while alternative permanent accommodation was being pursued. It was therefore accommodation that was reasonable for them to occupy.

Manchester’s appeal granted. Richards’ appeal dismisssed.

The Secretary of State’s guidance was wrong and should be reconsidered. If the government wished this situation to change, it would be a matter for statute - an order by the Secretary of State.

The Court was clear that a refuge would not always be considered as reasonable to continue to occupy. The Court set out a list of matters for homeless officers to address in assessing refuge accommodation for homeless applicants. I have added the full list at the end of this post. Clearly they will be of considerable importance for both housing officers and advisors.

(For complete geeks like me, there is an interesting discussion of the distinction between ‘reasonable’ (s.175) and ’suitable’ (s.206) at paras 30 & 31, but nothing turns on it here.)

This judgment places women’s refuges in a very difficult position indeed. It means that they will not be certain whether a woman that they take in will be able to make a homeless application will at the refuge. They will have to consider the list of factors set out in the judgment in each and every case, as what might be reasonable for one woman’s circumstances will not be for another woman. They will have to consider limiting the support that they offer. It effectively leaves them in an impossible position

As far as I can see, there are three options from here:

i) Appeal to the House of Lords. The prospects of success are not great, I would have thought. I suspect that the circumstances of Moran might be a better candidate for an appeal than that of Richards, but the key issues are identical, at least as long as one takes ‘accommodation’ in s.175 to mean the same as ‘accommodation’ in s.193, and I think we have to take that to be so.

ii) Secretary of State makes an order excluding refuges as ‘accommodation reasonable to occupy’. The simplest solution, and, given the SoS was an intervener in the appeal, maybe the most likely.

iii) Refuges and Councils struggle on with the ‘Moran guidelines’ as I shall christen them, as to whether a refuge is reasonable to occupy or not. A whole new swathe of s.204 appeals are born as the application of the guidelines is thrashed out.

The Guidelines - matters to be considered in enquiry under s.175(3) or s.191(1) Housing Act 1996 - are at paras 49 and 50:

49. The general matters which fall to be considered include:

(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;

(b) the terms of the agreement by which it is made available to her;

(c) her ability to afford it;

(d) the appropriateness of its location for her and her child (if any);

(e) the extent of its facilities for her child;

(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;

(g) the length of time for which they have already occupied it;

(h) the state of their physical and emotional health while in occupation of it; and

(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.

50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:

(a) the nature of the refuge;

(b) the scale of support which the refuge aspires to provide to the woman;

(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;

(d) the length of the period for which women generally occupy it;

(e) the extent to which, during her occupation, the refuge has been full;

(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;

(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and

(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.


Jan Luba QC and Adam Fullwood, instructed by Shelter, Manchester, for Moran.

Martin Hodgson, instructed by Anthony Gold, for Richards.

Martin Chamberlain for the SoS.

Clive Freedman QC and Zoe Thompson for Manchester

James Findlay and Wayne Beglan for Ipswich

Shala revisited?

Published
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on 15 April 2008
in Housing law
. 36 Comments

London Borough of Wandsworth v Allison [2008] EWCA Civ 354 is a Court of Appeal judgment on an appeal from a s.204 Housing Act 1996 appeal. It was made in downright odd circumstances, as the respondent had won the s.204 appeal but then had public funding withdrawn, for being out of the country, not long before the Court of Appeal heard Wandsworth’s appeal. The appeal went ahead, with the respondent not present or represented. Instead the Court had Counsel for the respondent’s early skeleton and asked Counsel for the applicant to give it the arguments the respondent might have made (!!).

I’m not going into detail on the facts of the case - suffice to say it turned on the interpretation by the s.202 reviewer and the Recorder in the first instance court of medical evidence in relation to Deep Vein Thrombosis and Raynaud’s phenomenon/disease. The recorder at first instance had found that the reviewer had failed to adequately address the medical evidence.

However, as I have made clear, I hope, I am satisfied that the authority went completely wrong in their assessment of the evidence in relation to DVT and Raynaud’s. It was not simply a question of the authority making findings of fact on competing evidence, which is something they would be perfectly entitled to do. It was a question of fundamentally misunderstanding and misstating the medical evidence in important respects.

The Court of Appeal found that there was sufficient unclarity and range of views in the medical evidence that the question the recorder should have addressed himself to was whether the review officer’s decision was Wednesbury unreasonable:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene MR in particular at 233- 4. In other words, was Ms Anglin’s decision one which no housing officer, properly directing her mind to the material before her could properly reach? If the decision was one which was properly open to her, then the overwhelming weight of authority is to the effect that the decision was one for her, and that there is no basis upon which the court could properly interfere with it, however, much the court may or may not agree with it. (65)

In the Court of Appeal’s view of the available medical evidence, this was simply not open to the Recorder.

Secondly, the Recorder had not properly considered the Pereia test:

Mr. Lintott’s second point was that the Recorder himself had failed properly to apply the Pereira test (as set out in paragraph 13 above) to determine whether Ms Anglin had been wrong in her conclusion that the Respondent was not vulnerable. The Recorder had held that the Ms Anglin “went completely wrong” in her assessment of the evidence on DVT and Raynaud’s disease, but he had not gone on to consider, as he should have, whether Ms Anglin was wrong in law to conclude that Mr. Allison was, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment would result where a less vulnerable person would be able to cope without harmful effects. Nowhere, Mr. Lintott submitted, did the Recorder address Ms Anglin’s conclusion that Mr Allison could take his pills effectively when homeless, and that with continued compliance there was no particular risk of further thrombosis, with the consequence that Mr. Allison would not, when homeless, be less able to fend for himself than the ordinary homeless person so that injury would result when a less vulnerable person would cope without harmful effects. As Auld LJ had pointed out in Osmani, vulnerability under s.189(1)(c) was “not exclusively or even necessarily a medical question.” -see paragraphs 14 to 17 above. (50)

The Court was at pains to stress that a s.204 appeal is on a point of law and that the court cannot overturn the local authority’s findings of fact unless on strong Judicial Review style grounds (with the addition of irrationality and inadequacy of reasons). The Recorder had failed to properly consider whether the reviewer’s conclusion was one that she could properly come to on the evidence available to her.

Of broader significance is the address to Shala. Wandsworth’s medicial advisor was the ubiquitous Dr Keen of Now Medical - a GP. The skeleton of erstwhile Counsel for the Respondent had argued that

The proper role for Dr Keen [...] was – as stated in paragraph 22 in Shala - to enable Wandsworth “to understand the medical issues and to evaluate the medical issues before it”. As a consequence, counsel submitted, the Recorder was entitled to conclude that Wandsworth had misunderstood the medical evidence before it. (61)

The Court of Appeal sought to distinguish Shala.

Firstly, the Recorder had made no reference at all to Dr Keen’s reports in his judgment.

Secondly, in this instance, it appeared that Dr Keen had simply commented on the medical evidence (despite the ‘I make no housing recommendation’ repeated epilogue) in order to allow the Local Authority to understand the medical evidence.

It would plainly not have been appropriate for Dr. Keen to examine Mr. Allison. In the instant case, Dr. Keen’s advice seems to me to be well founded in his medical expertise, and he was thus fully entitled to advise Wandsworth on the manner in which Mr. Allison’s medical difficulties would be likely to affect him. Ms Anglin was, similarly, entitled to give weight to Dr. Keen’s conclusions. (71)

Does this represent a significant change to Shala?

I don’t think so. I think it was clear in that judgment that Shala represented a conditional limit on the use of Now Medical (or any commissioned medical) reports by local authorities, but it did not mean that a Now Medical  (or council commissioned medical) report could not be taken as credible medical evidence without Dr Keen examining a patient or that any specialist medical evidence trumped a Now Medical report. In this case, comments on DVT and anti-coagulation medicine were considered to be within a GP’s expertise.

The Court distinguished Shala, and on entirely predictable grounds. Allison may represent a limit case on the application of Shala, but does not change it at all. A Now Medical report still cannot stand as expert medical evidence absent an examination of the patient, and local authorities must still consider carefully whether they are comparing like with like in considering Now Medical’s report against expert reports.

Making Good and homeless figures

Published
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Nearly Legal
on 10 March 2008
in Housing law
. 1 Comment

Via Garden Court’s 10 March 2008 bulletin.

Birmingham (yes them again) have had their tenancy agreement found to be misleading by the Ombudsman in terms of their liability for making good damage resulting from repairs.

Homeless figures are out for the last quarter of 2007. Decreases in both decisions (6%) and acceptances (1%) on the previous quarter.

There are a couple of interesting case reports in there too, not yet reported elsewhere:

Hassan Omar v City of Westminster [2008] EWCA Civ, [2008] All ER (D) 38 (Mar)

and

R(Niypo) v Croydon LBC [2008] EWHC Admin, [2008] All ER (D) 24 (Mar)

both on aspects of homelessness, so read the bulletin…

Birmingham: “Everybody does it”

Published
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on 7 March 2008
in Housing law
. 10 Comments

Apparently, Birmingham are still furious about the Court of Appeal decision in Aweys, with the Tory cabinet member for housing showing marked signs of not actually getting it.

In the course of a rant about the CLG offering ‘advisors’ to help with homeless at home duty, the delightful sounding John Lines said:

It is common practice across local authorities to use “homeless at home” to alleviate disruption to families and this practice is acknowledged, recorded and reported by Communities and Local Government.

John, it is unlawful. And any other Council engaging in this ‘common practice’ is acting unlawfully. That Birmingham may not be the only offender doesn’t make it any less, well, unlawful.

Birmingham v Aweys

Published
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on 7 February 2008
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. 10 Comments

Hot off the press - judgment released today.

Birmingham, apparently intent on suicide, appealed the judicial review decision in Aweys. Birmingham City Council v Abdishakur Aweys & Ors [2008] EWCA Civ 48. They lost, badly, on all counts.

Birmingham argued that accommodation that was not suitable under section 175(3) could still be suitable for a limited time for the purposes of section 210 after a duty under section 193 has been accepted. The court held otherwise, the definition of ’suitable’ has to be the same before and after the housing duty arose. Awua (R (ex p Awua) v Brent LBC [1996] 1 A.C. 55) did not help Birmingham because the accommodation in that case was acceptable albeit short life housing.

Birmingham also argued that Collins J had erred in his ruling that the allocation scheme was unlawful because he held that Birmingham a) could not take financial considerations into account in making policy, and b) he purported to determine priorities between the homeless himself. The court said a) no he didn’t, and b) no he didn’t. One other technical point turned out to be based on a typo. And that was pretty much that.

This does leave a rather difficult practical situation, as a council will be in breach of duty unless it finds suitable accommodation immediately someone is accepted as homeless. While this can be waived by consent, this is not something that the council can rely on. Collins J had recognised this by giving a guideline of 6 weeks as a reasonable period in which to secure alternative accommodation. LJ Arden’s judgment worries about the impact of immediate effect, but declines to construe the statute as including ‘a reasonable time’ for the accommodation to be secured. On the other hand, she doubts whether a mandatory order would be made by the court where a council genuinely cannot secure suitable accommodation immediately.

I’m guessing that Mike McIlvaney, the Community Law Partnership and Jan Luba QC are happy bunnies tonight.

By the way, the Court limits its discussion of ’suitability’ to the issue of the homeless at home, because there are two pending cases Richards v Ipswich BC and Manchester CC v Moran, both concerning women’s refuges, that may address the issue of suitability. Something to watch out for there.

Omar update

Published
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on 21 December 2007
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. 2 Comments

Craig Keenan from Community Law Partnership has added another comment to my original post on Omar -v- Birmingham CC to the effect that funding may be forthcoming for a House of Lords appeal. Also the key issue, which is whether Councils can rely on s.193(5) - suitability - rather than s.193(7) - suitability and reasonable to accept - when discharging duty on refusal of an offer of accommodation, may well come up in other cases headed to the Court of Appeal.

Hopefully, a resolution will be achieved soon, as Omar -v- Birmingham was not at all clear in its suggestions.

Christmas rush

Published
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on 21 December 2007
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It seems I wasn’t the only one frantically getting cases progressed before the holiday break. The Court of Appeal has been churning out judgments at an extraordinary rate.

Amongst them one housing law judgment…

Green & Anor v London Borough of Croydon [2007] EWCA Civ 1367. This was an appeal on a homeless application. Briefly, there had been a somewhat iffy possession order, made where the actual rent due and owing was not clear at all. The Local Authority had even advised the appellants on the iffyness of the claim. However, a ground 8 possession order was made and the Council then returned an intentionally homeless s.184 decision on the subsequent homeless application.

The basis of the appeal was that the Council’s inquiries had not gone far enough, or at all, into whether the possession order was soundly based or should have been made at all.

The Court of Appeal held that ’such inquiries as are neccessary’ in the terms of s.184, in circumstances such as this where the County Court had made a decision as to what the rent was on the basis of mixed and uncertain evidence, need not take place, although the situation may be different where the County Court decision was ‘clearly’ wrong. This was not a boundary testing case. Appeal dismissed.

Bad luck to Flack & Co on this one.

Of orthopaedic footwear and possession orders

Published
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on 16 December 2007
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Not a particularly significant case, but not one you see every day either. Nuisance by adverts for wigs, orthopaedic footwear, and dating agencies.

Accent Peerless Ltd v Kingsdon & Anor [2007] EWCA Civ 1314 was an appeal of an outright possession order on an assured tenancy. The possession order was made on the basis of Ground 14 Nuisance. The tenants, mother and daughter, both suffered from mental health disorders:

The main symptoms of their disorder were a hypersensitivity to noise, a propensity to exaggerate the effect of noise and other disturbances, agoraphobic tendencies, a tendency to misunderstand and chronic complaining.

So when their new neighbours undertook some apparently fairly extensive but reasonably conducted DIY work, the Kingsdons took action. From para 5:

i) Between November 2001 and September 2005 they made 36 complaints to the Environmental Health Department. There were also two complaints to the local authority ombudsman.

ii) They made 90 complaints to the Housing Association between September and November 2001. These complaints seem to have been communicated to the Dixons.

iii) They made a number of complaints to the police, prompting several visits by the police to the Dixons. The police seem to have concluded that the Dixons were taking all reasonable steps to be considerate neighbours. In the course of these complaints, the defendants made allegations that Mrs Dixon had been in Brookwood Mental Hospital and that they had been evicted from a previous property for dangerous DIY activities and noise harassment. These allegations were false. Over a period of 12 to 18 months the beat officer for the area, who at one point issued a warning under the Harassment Act, received almost daily faxes from the defendants, though they had dropped off dramatically a short while before the trial.

iv) The defendants procured the sending of unwanted mail shots and other advertising material by apparently filling in coupons with the victim’s address. The material which thereby arrived on the Dixons’ doormat included advertising for erotic material, an introductory agency, a wigmakers, cosmetic surgery and orthopaedic footwear. The Dixons found this upsetting and depressive.

v) What was described as the “last straw” happened in 2005. One of the defendants made an anonymous telephone call to Mr Dixon’s employers saying that he was not off ill because they had seen him working in his garden. At the time Mr Dixon was indeed off work and working in the garden, but it was pursuant to leave which had been agreed with his employer.

vi) One of the defendants wrote to the local MP, in Mrs Dixon’s name, about some European food supplement.

The Circuit Judge found that this constituted nuisance for the purposes of Ground 14 and that it was  reasonable to make an outright order in view of the likelihood of the nuisance continuing.

The appeal was dismissed on the basis that it was proportionate to make an outright order and the Judge was within his discretion, having heard and considered evidence on a supposed abatement of incidents. The Court of Appeal found that the Judge’s decision

falls into the category of decisions with which this court will not interfere absent a manifest error of principle, a failure to take a relevant consideration into account or the taking into account of an irrelevant consideration.

Given the evidence of the appellants’ mental health issues, one wonders how strongly a Disability Discrimination defence was run - reason for eviction being related to the disability. However, the County Court Judgment says that in making the order, the Judge was satisfied that

these defendants will not be discriminated against under the Disability Discrimination Act.

I would imagine that there could have been a strong counter of justification to a DDA argument. But none of this is raised in the appeal.

“Reasonable to Occupy” - Nipa Begum revisited

Published
by
Nearly Legal
on 4 December 2007
in Housing law
. 0 Comments

In Waltham Forest v Maloba [2007] EWCA Civ 1281, the Court of Appeal has revisited the issue of ‘reasonable to occupy’ in terms of the homelessness provisions of Housing Act 1996.

Briefly, the facts were that Mr M had lived in the UK since 1989 and acquired British Citizenship in 1997. On a visit to his family in Uganda, he married and had a child. For two years, Mrs M and their daughter lived in an annex to a property in Uganda, which had belonged to his late father but was now occupied by Mr M’s brother and one of his sisters. it was considered to be a ‘family’ property, where any of the family could live. In 2004 Mrs M and their daughter came to join Mr M in the UK. After a few months, it became clear that they would not be able to continue in their rented accommodation. Mr M applied to Waltham Forest as homeless.

The authority decided, and confirmed on review, that Mr M has accommodation that he was entitled to occupy - the property in Uganda - and thatthis property was reasonable for him to occupy. He was therefore not homeless. This despite Mr M reasonably pointing out that he was a UK citizen and his life was in the UK.

The decision was overturned as Wednesbury unreasonable on s.204 appeal. The authority went to the Court of Appeal.

The authority’s grounds were

a) that a strict construction of HA 1996 s.175 meant that it was only obliged to consider whether accommodation was available, not whether it was reasonable.

b) if it was obliged to consider reasonableness to occupy, this was only in reference to size and