Ms Webb was (and, as far as I know, still is) the secure tenant of the London Borough of Wandsworth. One of her children had been engaging in serious anti-social behaviour in and around Ms Webb’s home. By the time of trial, he was no longer residing with Ms Webb although he was not living very far away and would return to visit Ms Webb. At the date of trial it appeared that there had not been any ASB for about a year. The high point of the case for the local authority was that the son had been arrested (but not convicted) on three occasions for breach of an ASBO.

It was common ground that Grounds 1 and 2 were made out, but Ms Webb contended that it was not reasonable to make an order. Wandsworth argued that it was reasonable to make an order, but that it should be postponed on terms.

The Circuit Judge made a PPO, with terms requiring inter alia, the son not to reside at the property and Ms Webb appealed to the Court of Appeal.

Ms Webb raised the following grounds of challenge:

(a) There was very little behaviour that Ms Webb was personally culpable for. Wilson LJ, giving the main judgment, accepted that this was a relevant factor but, following Bryant v Portsmouth CC [2000] 32 HLR 906, there was nothing objectionable in requiring Ms Webb to take responsibility for the behaviour of her household. In addition, following Manchester CC v Higgins [2006] HLR 261, the existence of the ASBO against the son indicated that it would be reasonable to make an order;

(b) Wandsworth had failed to follow their ASB policy, which, in broad terms, indicated the possession proceedings would be instituted only where other remedies had failed. On the facts, said the court, the policy had been followed. There had been many other attempts to resolve the ASB, including the acceptance by Ms Webb and her son of an Acceptable Behaviour Contract. In addition, his Lordship was not entirely satisfied that a tenant could raise a defence/reasonableness argument based on the terms of an ASB policy

(I break here to note that his Lordship is, with respect, wrong to have any such doubts. An ASB policy is something that a local housing authority / housing association must have, see s.218A Housing Act 1996. The Secretary of State is further empowered to issue guidance on the contents of the same, see s.218A(7). It is, as a matter of public law, not open to public body to simply ignore policies or Government guidance – R (Rixon) v LB Islington (1998)  1 CCLR 340 – indeed, they have “special importance where the behaviour of the tenant’s children is at the root of much of the trouble” – per Brooke LJ in Moat Housing Group v Hartless [2005] EWCA Civ 287, at [102])

(c) The Judge had used the possession order as a means of further sanctioning the son, since it was primarily him and his behaviour that was likely to result in any breach of the terms of postponement. This was entirely legitimate and, whilst the Judge would have been well advised to expressly consider the interests of the other children and the harm that would result to them if the son were to breach the terms of the postponement, this was an ex tempore judgment and the Judge had the relevant evidence before her during her judgment.

(d) The Judge had taken the allegations of breach of an ASBO into account. It was, Wilson LJ held, inappropriate to even consider unproven allegations. They were irrelevant to the question of reasonableness and, as the Judge had taken an irrelevant factor into account, the whole decision had to fall.

Sedley LJ, in a short concurring judgment, went slightly further as regards point (c). To his mind, there is a difference between a court (i) making a tenant responsible for persons who the tenant has a degree of control over and (ii) making a tenant responsible for persons over whom the tenant has no control. The latter is impermissible (Wilson LJ (albeit obliquely) appears to say something similar at [5]. I think you need to read [5] with [24] to understand what Sedley LJ is saying).

In addition, the court should have given express consideration to the Article 8 rights of the other inhabitants of the house before making a possession order. The case appeared to Sedley LJ to be one where it was appropriate to adjourn on terms.

Mummery LJ added nothing of substance but dealt with a minor procedural matter.

This isn’t quite as strong a judgment from Sedley LJ as I’d hoped, but it’s far from bad news. I do think that there is some difficulty in the idea that a tenant should always be responsible for the acts of their visitors/other residents. Why should one adult be responsible for the acts of another adult? In the criminal field, we’ve abandoned any such idea (R v Simon Kennedy [2007] UKHL 38). Surely the time has come to recognise that Bryant has to have some limits? I do think the position as regards liability for the acts of ones children is more complex, but, as regards adults, it seems to me that this might be the start of a (welcome) retreat from Bryant.

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?

The history

L was married to an army officer. He was a violent alcoholic who abused both his wife and their daughters. In 1989 he resigned following a court martial which found him guilty of ungentlemanly conduct. The Army then (in September 1989) – on compassionate grounds – arranged to house L and her two daughters in Leeds, where the children attended school.

The premises in Leeds were said to be temporary until L could secure housing from the local housing authority. In September 1990 the licence to occupy was said to be terminated and in July 1993 a possession order was made (I pause here to note that the effect of para. 11, Sch. 1, Housing Act 1988 is to prevent any security of tenure from arising). Following the possession order, an attempt was made to secure alternative accommodation but this came to nothing. L also removed herself from the Leeds City Council priority housing list. It should be noted that, by this stage, it was clear that L, one of her daughters and her granddaughter, had a variety of physical and mental illnesses and disabilities.

In 1996, the Ministry of Defence reorganised the way in which it managed its property and undertook a sale and lease back agreement with Annington Homes. In October 1999, a decision was taken that L’s property was surplus to requirements and a fresh notice to quit was served. A warrant was then sought pursuant to the 1993 order but that was refused as it was held that there had been a fresh grant since 1993. A third notice to quit was then served in 2005.

Having resolved to seek possession, the MOD “recognised that there was a duty to consider if and how [it] could assist the defendant through the process of recovery of possession” and arranged meetings with Leeds. The upshot of those was that unless and until a possession order was granted, there was very little that could be done as regards re-housing. Possssion proceedings were issued in the Leeds county Court in June 2007. A defence and counterclaim was served in September 2007 which contended inter alia, that the decision to seek possession was unreasonable and unlawful so as to amount to a violation of Article 8.

s.49A Disability Discrimination Act 1995

L also sought to argue that s.49A Disability Discrimination Act 1995 gave her a defence in that no or no adequate regard had been had to her various health needs and disabilities. Collins J dismissed that point shortly, holding that “to suggest that section 49A enables someone who otherwise would fail to have any defence to a possession order… is to take that much too far.” (at [23]).

Article 8 and possession proceedings

His Lordship then turned to consider the law on Article 8 and possession proceedings. The law was, he observed “far from as clear as it should be” (at [24]). The position was:

(a) that public law defences based on the alleged irrationality of a decision to seek possession could be raised as a defence in the county court - Wandsworth LBC v Winder [1985] AC 461

(b) that Article 8 could not be relied upon to defeat a proprietary or contractual right to possession – Harrow BC v Qazi [2004] 1 AC 983

(c) that decision had been doubted by the decisions of the European Court of Human Rights in Connors v UK [2005] 40 EHRR 185 and Blecic v Croatia [2004] 41 EHRR 13, which had suggested that Article 8 might come into play in situations were the decision to evict was “manifestly without reasonable foundation” or “manifestly disproportionate”.

(d) the decision of the House of Lords in Kay v LB Lambeth [2006] 2 AC 465 had attempted to deal with these two ECtHR cases and had concluded that the right of a public authority landlord to enforce a claim for possession would, in most cases, automatically be justified under Art. 8(2). Parliament was entitled to strike the appropriate balance for Art. 8(2) purposes but, in an exceptional case, the defendant should be able to assert that the power to recover possession should not be used.

(e) in Doherty v Birmingham City Council [2008] 3 WLR 636, the House of Lords had concluded that, in order to raise an exceptional defence of the sort contemplated in Kay, the defendant would have to show that the decision to seek possession was Wednesbury unreasonable. (His Lordship was minded to agree with Lord Mance, in the minority in Doherty that, if the decision to evict would amount to a violation of a persons human rights, then the decision must be unreasonable, but his Lordship accepted that this argument was not open to him).

(f) in Doran v Liverpool City Council [2009] EWCA Civ 146, the Court of Appeal had held that any challenge must be to the decision to bring possession proceedings, not to the possession proceedings themselves. In this regard, the court’s powers of suspension were relevant.

The decision

In the present case, what was said was that it was irrational to bring the proceedings because of the lengthy period of occupation and the personal circumstances of the defendant and her children. However, there was no obligation on the claimant to make enquiries of this nature and, in any event, a personal disability could not afford a defence to possession proceedings. Moreover, whilst there had been an unacceptable delay in bringing the proceedings, the Ministry of Defence had adduced  evidence of the need to recover possession and make use of the property.

It would be a rare case where it truly was irrational to recover possession,given that most decisions to seek possession were only based on partial information known at the time (at [55}). In any event, the county court would be obliged by s.6(1) Human Rights Act 1998 to make a possession order in any event. The value to making factual findings was, however, that it would assist with deciding how long to suspend the order for (although, as this was a notice to quit case, the court was limited to 6 weeks). In addition, the decision to seek a warrant could be challenged (presumably by JR), relying on those findings of fact (at [56]).

However, his Lordship did accept that “there may be cases where it wold be incumbent upon the relevant authority to assist, insofar as they are able, in seeing that alternative accommodation would be provided” (at [49])

Where does that leave us?

His Lordship – rightly – criticised the decisions in Qazi, Kay and Doherty for failing to give any clear picture of the law, but does his Lordship’s judgment help any more? Why, for example, does he take the view that there may be a duty to assist with providing alternative accommodation? Is this part of an Article 8 duty or a freestanding public law duty? Why would it not be a defence to show that a decision to seek possession was Wednesbury unreasonable? Surely the whole point of Kay and Doherty is that it is a substantive defence? If it isn’t, then how on earth can the UK contend that domestic law ever complies with the procedural safeguards required in McCann v UK and Cosic v Croatia?

I’m also surprised that it was not argued that possession pursuant to a notice to quit violates Art. 8, following McCann and Cosic.

Finally – and I think this is quite a big one – it is wrong to say (as His Lordship does and as Doran did) that Kay, Doherty et al are authority for the proposition that a challenge to the decision to seek possession has to be framed as a Wednesbury unreasonableness challenge. The challenge can be on any of the grounds of public law, irrationality, illegality or procedural impropriety (see CCSU and “Doherty: The Facts of the Matter” Andrew Arden QC [2008] 11 JHL 98).

Wednesbury itself is not just about perversity but includes bad faith, dishonesty, failure to take into account relevant factors and the like. In Kay, Lord Brown expressly stated that Connors could been argued as an “unfairness” challenge in the domestic courts and in Doherty, Lord Hope makes clear that the challenges are not confined to Wednesbury grounds.

There is lots to come – Weaver v L&Q in the Court of Appeal, Moran v Manchester, Aweys v Birmingham in the Lords (all heard, I believe, and judgments awaited); and the probably imminent but yet to be fixed start date for the Tolerated Trespasser provisions of Schedule 11 of the Housing and Regeneration Act being just the highlights.

But right now? Nada, niente, rien, zilch and diddly-squat. In short, nothing at all. Not even a Judicial Review costs hearing or semi-interesting LVT decision.

Mind you, if all that stuff comes down at once, I’ll be complaining…

When we first commented on this case (here) we provoked quite a response. Thanks to to Mr Jones of Bury Walkers (who acted for Ms Harvey) we have now been provied with a transcript of the judgment. So – here is what it says.

Mr Bamforth was the assured shorthold tenant of a property owned by Ms Harvey. A deposit was paid to Ms Harvey via her letting agents. The deposit was lodged with TDS within 14 days of the start of the tenancy.

Rent arrears began to accumulate and, in January 2008 (the transcript says 2007, but I think that must be a typo) possession proceedings were issued. The proceedings were defended on the basis that the prescribed information (s.213(5) and (6), Housing Act 2004) had not been provided. It was accepted by the landlord that the prescribed information had not been provided within the time specified in s.213(5) and (6), but was said that it had been provided at a later date. However, it seems that the landlord withdrew the possession claim, leaving only a money claim for rent arrears.

Mr Bamforth then issued an application for the return of his deposit and for damages of three times the value of the deposit. His application was heard by a Deputy District Judge who ordered that the deposit to be returned pursuant to s.214(3)(b) HA 2004 and ordered damages of three times the value of the deposit pursuant to s.214(4) HA 2004. Both sums set off against agreed rent arrears. The DDJ granted permission to appeal.

Ms Harvey therefore appealed both the order for the return of the deposit and the damages award.

s.213 Housing Act 2004 provides (insofar as is material):

213 Requirements relating to tenancy deposits

(1) Any tenancy deposit paid to a person in connection with a shorthold tenancy must, as from the time when it is received, be dealt with in accordance with an authorised scheme.

(2) No person may require the payment of a tenancy deposit in connection with a shorthold tenancy which is not to be subject to the requirement in subsection (1).

(3) Where a landlord receives a tenancy deposit in connection with a shorthold tenancy, the initial requirements of an authorised scheme must be complied with by the landlord in relation to the deposit within the period of 14 days beginning with the date on which it is received.

(4) For the purposes of this section “the initial requirements” of an authorised scheme are such requirements imposed by the scheme as fall to be complied with by a landlord on receiving such a tenancy deposit.

(5) A landlord who has received such a tenancy deposit must give the tenant and any relevant person such information relating to—

(a) the authorised scheme applying to the deposit,

(b) compliance by the landlord with the initial requirements of the scheme in relation to the deposit, and

(c) the operation of provisions of this Chapter in relation to the deposit,

as may be prescribed.

(6) The information required by subsection (5) must be given to the tenant and any relevant person—

(a) in the prescribed form or in a form substantially to the same effect, and

(b) within the period of 14 days beginning with the date on which the deposit is received by the landlord.

…

Section 214 Housing Act 2004 provides (again, so far as it material):

214 Proceedings relating to tenancy deposits

(1) Where a tenancy deposit has been paid in connection with a shorthold tenancy, the tenant or any relevant person (as defined by section 213(10)) may make an application to a county court on the grounds—

(a) that the initial requirements of an authorised scheme (see section 213(4)) have not, or section 213(6)(a) has not, been complied with in relation to the deposit; or

(b) that he has been notified by the landlord that a particular authorised scheme applies to the deposit but has been unable to obtain confirmation from the scheme administrator that the deposit is being held in accordance with the scheme.

(2) Subsections (3) and (4) apply if on such an application the court—

(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or

(b) is not satisfied that the deposit is being held in accordance with an authorised scheme,

as the case may be.

(3) The court must, as it thinks fit, either—

(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or

(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,

within the period of 14 days beginning with the date of the making of the order.

(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

…

Ms Harvey contended that the power to order the return of a deposit and damaged pursuant to s.214(3) and (4) only arose if the court was satisfied that s.213(6)(a) had not been satisfied and that compliance with s.213(6)(b) was irrelevant for these purposes. So – the power to order the return of the deposit and damages only arises if the landlord has failed to provide the prescribed information in the prescribed form (or one in similar effect). It is irrelevant, for the purposes of s.214(3) and (4) when that information is provided.

HHJ Bullimore accepted this argument. In his judgment:

[t]he failure on the landlord’s part was not that ‘the prescribed information was not given’ but that it was not given within the fourteen days. The district judge… took the view that [s.213(6)(a) and s.213(6)(b)] were so closely connected that they only made sense if they were read together but I think that was an error. I think that the draftsman in dealing with proceedings relating to tenancy deposits in Section 214 was very clear in differentiating between the requirements of giving information and giving the information after a specified period.

There were, to his mind, sound policy arguments for this conclusion:

… they are very serious powers to be exercised against a landlord… one can well see that in the minds of the legislators, it was one thing to deal with a landlord who had not provided the prescribed information at all and to deal with it in that way with a landlord who had provided the prescribed information but had not done it within that short period laid down by the Act.

Accordingly, as the information had been given before the tenant made his application, the application should have failed. The appeal was allowed and the order for the return of the deposit and the damages was overturned.

A final word of caution. This was only a decision of a county court and one that was only argued on one side (Mr Bamforth didn’t appear at the appeal). It is not a binding decision and other judges are perfectly free to come to other conclusions. As to whether or not it is right – I’ll leave that to you all to comment on!

[For all tenancy deposit case posts click here]

• Rabinder Singh QC on equality and discrimination law after Malcolm;
• Andrew Arden QC, Jan Luba QC and Caroline Hunter on current issues in homelessness;
• Robert Latham and Christopher Baker on allocation schemes;
• James Stark, Derek McConnell and Bob Lawrence (CLG) on possession proceedings;
• Matthew Hutchings and Stephen Cottle on housing and human rights.

The conference lasts from 9am till 6pm, is fully catered and attracts 6 CPD points. A day of housing law. With food. And CPD points. What more could you ask for?

Table of contents for Disability Discrimination

1. Catching up – Disability Discrimination and possession
2. Disability and tenancy – More on Malcolm
3. On impotent landlords and disability.
4. Disability discrimination – the comparator
5. DDA and mandatory possession
6. S v Floyd and a disability defence
7. Adjourning pending Malcolm in the Lords
8. And now Malcolm!
9. Malcolm in brief
10. Comments on Malcolm in the Lords

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]

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.

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.

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.