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Comments on Malcolm in the Lords

Published

on 29 June 2008

. 58 Comments

Oh dear, oh dear. That could have gone better.

I’m not going to go into great detail on the five separate judgments from the House of Lords in LB Lewisham v Malcolm [2008] UKHL 43, but I do want to look at where it leaves us and what the problems are with the judgments.

The headline result is that:

For an eviction to be unlawful due to disability discrimination under s.22(3)(c), the eviction must be for a reason that, in the mind of the landlord, is related to the disability.
To be discriminatory the treatment must be less favourable for a reason related to the disability. The comparator against whom the treatment is measured is someone who has acted, or not acted, in the same way but is not disabled. So, for example, someone who has rent arrears, or has illegally sub-let, if that is the position of the disabled person.
It is still possible (by a majority) to raise disability discrimination as a ‘defence’ against mandatory or ‘undefendable’ possession claims, but the circumstances in which this will be possible will be extraordinary.

This is a reversal of all the key points of the Court of Appeal judgment (see previous discussions listed below). What is worrying is the way in which the Lords approached the appeal and with it the impact of their decision, which will extend way beyond housing law.

Their Lordships are very concerned about the practical results of the Court of Appeal judgment. On a number of occasions, for example, it is said that X ‘is difficult to accept’ (para 14), or ‘very difficult to accept’ (para 28), or even ‘the unacceptability of these logical conclusions[...] suggests, or perhaps shows, that the conclusions must be based on an erroneous premise’ (para 29). This latter phrase indicates the problem with the approach taken by the majority, reasoning a posteriori to what the Disability Discrimination Act ‘must mean’. In doing so, they do considerable violence to the Act and to settled case law.

The issue is s.24(1) which defines discrimination for the purposes of s.22(3) - the eviction clause. S.24(1) reads:

For the purposes of section 22, a person (‘A’) discriminates against a disabled person if -

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment is justified.

However, exactly the same formulation appears at s.5(1) - employment; and s20(1) - Goods and services. Their Lordships’ view of the meaning of s.24(1) therefore impacts on every other part of the act. Some of the judgments appear to be completely oblivious to this. Nine years of settled employment case law has just gone down the pan.

Baroness Hale’s judgment alone takes note of the broader issues of the drafting and intent of the Disability Discrimination Act. As she points out, unlike race and sex discrimination statutes, there is no indirect discrimination in the DDA, although it was undoubted intended to cover indirect discrimination. Baroness Hale suggests that this was because indirect discrimination would not extend far enough to cover ‘reasonable adjustment’ (see paras 73-75). She points out the history of the bill where the specific phrase at issue, ‘to whom that reason does not apply’ was introduced by amendment (para 79) and specifically to make the comparator a person who was not in the same position as the disabled person.

For this reason, Baroness Hale finds the Novacold interpretation was exactly what Parliament intended. There was no indication that the three instances of the same wording in the act should be treated differently.

The specific problem for services and premises - which was the provision facing the Lords here - is the very narrow range of possible justification for the alleged discriminator. Where employment related discrimination is open to a range of justifications for the treatment, the section on eviction only has the specific justifications set out at s.24(3). This means that s.22(3) has a more draconian impact than the same formulation of discrimination at s.5(1). This is bad drafting on amendment, certainly.

Baroness Hale points out that subsequent legislation, 2003 Amendment Regulations, left s.5(1) terms intact in the new s.3A(1), but added a new s.3A(5) which provides for direct discrimination where the disable person and the comparator are of the same ability. There is no possibility of justification for this.

What the Lords have done is effectively render s.3A(1) and s.3A(5) identical, giving the option of justification where Parliament had intended there to be no justification possible. [Edit. I have been rightly and firmly corrected by a large posse of employment and disability lawyers in the comments below. No it doesn't, because anything that is arguably direct discrimination will almost certainly be caught by s.3A(4) with s.3A(5) - no justification for unfavourable treatment on the ground of disability. Meaning that, until further cases or legislation that s.3A(1) is possibly absolutely pointless.]

The Court of Appeal held by a majority that no knowledge of the disability was required by the landlord for the eviction to be unlawful. On a strict construction of s.21(1) via Novacold, this seems right. However, a broad range of justification would mitigate the effects. Baroness Hale would rather see a close connection between the disability and the reason for the landlord’s behaviour. She suggests that an awareness, at least, of effect of a policy or action on a disabled person would be required (paras 84 - 85). She points out that showing a justification requires a knowledge of the disability. Baroness Hale’s eventual suggestion is in accord with the EHRC view - the Court should have discretion whether ot not to grant a possession order, having weighed up the facts and interests. The easiest way to achieve this would be an amendment under regulations to expand the list of available justifications to the landlord.

The cases would then turn on the closeness of the connection betwene the disability and the landlord’s reasons for acting as they did - the more obvious the connection between the disability and, say, rent arrears, the more difficult it would be to recover possession or rent.

Although not a wonderful solution, Baroness Hale’s is by far the least damaging and most sane. It would also have the merit of keeping discrimination ‘defences’ to possession alive in a broader, but not ridiculous, range of circumstances than the majority view. Unfortunately, she was in a minority of one in her reasoning, even if she came to the same result.

The Lords have quite obviously gone against the intent of Parliament and left a hell of a mess. The effects of bad drafting are for Parliament, or the Government via regulations to put right. Quite what happens now is anyone’s guess. One would hope for a prompt response by Parliament to sort out the problem, but one might hope in vain.

[I should point out that in all of this, I agree with Francis Davey's comments on my 'Malcolm in brief' post. Link below]

Article Series - Disability Discrimination

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Children Act - housing and education

Published

Nearly Legal

on 17 June 2008

in Housing law

. 0 Comments

C, R (on the application of) v London Borough of Lambeth [2008] EWHC 1230 (Admin) is, in the end, mainly concerned with education, but there is quite a bit of interest to housing people.

The issue was the duties owed to the Claimant under s.23 and s.24 Children Act 1989.

The Claimant had been in care with Lambeth. Shortly before her 18th birthday, Lambeth gave her tenancy of a one bed flat. The next year, after suffering a serious sexual assault at the flat, C left to stay with friends and a former foster mother. In 2207, she was briefly street homeless, before the application for Judicial Review was made. She was accommodated by Lambeth after an interim order.

The judicial review application concerned Lambeth’s failings in three duties to a ‘looked after child’ - housing, community care, education and training.

In the meantime, the claimant turned 21. In view of the ongoing proceedings, Lambeth agreed that if any breach of duty was found, then it would not make an issue of C now being over 21.

Shortly before the substantive hearing, Lambeth accepted a permanent housing duty and a duty to make a community care assessment. The education aspect remained at issue. Lambeth maintained that no education and training duty existed because a course of study had not been identified in a pathway plan that had been adopted before C turned 21. In any case, the pathway plans that had been prepared had not been adopted by the Council.

The Court held, following R(J) v Caerphilly County Borough Council [2005] EWHC 586 Admin; [2005] 2 FLR 860, that the pathway plans that existed had not been properly prepared as they had been prepared by C’s personal advisor. The plan was descriptive rather than establishing proposed courses of action and assistance for C.

The Council’s failure to adopt the plan did not make much of a difference as its evidence was that the plan would have been the same if it had adopted it. The plan requires objective assessment so that all parties can see what it envisages, identify progress or the reasons for the lack of it.

In addition, the plan recognised that the then housing problems had had a major effect on C’s educational aims. C’s difficulties in engaging with the course she had been undertaking were therefore in part due to Lambeth’s failure to accept the housing duty, and also, given C’s mental health difficulties, the failure to undertake a community care assessment.

It was artificial to separate out the educational duty from the housing and community care duty where they were clearly interlinked. C was therefore successful.

HB as rent for RTB

Published

Nearly Legal

on 16 June 2008

in Housing law

. 0 Comments

Hanoman v London Borough of Southwark [2008] EWCA Civ 624

Where a local authority landlord has failed to respond to a tenant’s notice in time under the Right to Buy procedure, the tenant can serve an ‘operative notice of delay’ under s.153A(5) Housing Act 1985. The effect of this notice is that the landlord must deduct from the purchase price an amount based on the rent paid during the period of the delay (s.153B).

Does housing benefit, whether as payment, or as rebate on rent payable to local authority, count as rent for the purposes of s.153B?

Simple answer - yes. S.153B makes no prescription as to the source of rent payments and it would be ludicrous to distinguish between housing benefit as payment and housing benefit as rebate.

There is also an interesting side issue on preserving rights in a dispute over RTB terms after completion of the sale by way of collateral contract.

Liability for mesne profits

Published

Nearly Legal

on 16 June 2008

in Housing law

. 0 Comments

Jones v London Borough of Merton [2008] EWCA Civ 660 addresses whether a tolerated trespasser’s liability to pay mesne profits ends when they leave the property or when they notify the former landlord that they have left.

Ordinary trespassers are only liable for mesne profits for the period of actual occupation of a property. Merton submitted that tolerated trespassers were in a different position. Public policy required that housing authorities be notified as soon as possible that occupation was at an end to enable re-letting. There was a direct analogy with the requirement that a secure tenant end the tenancy by notice to quit under s.5 Protection from Eviction Act 1977 as the tolerated trespasser had a distinctive status.

The Court said this was not so. The only valuable, distinctive right of the tolerated trespasser, the right to apply for revival, ends when execution is no longer required to give effect to the possession order, which is when the trespasser has left the property. Liability for mesne profits only extends to the period of actual occupation and there is no requirement for formal notification of giving up occupation to the landlord.

On a side note, possession (as in occupation) requires both factual possession and intention to possess. One cannot be said to have given it up until there is no intention to possess. JA Pye (Oxford) Ltd v. Graham [2002] UKHL 30 applied. There is some dissension between the judgments as to when, on the facts of the case, this was manifest in this case.

Notes for later

Published

Nearly Legal

on 16 June 2008

in Housing law

. 0 Comments

As ever, housing cases come in a flood after a drought.

Jones v London Borough of Merton [2008] EWCA Civ 660 on when liability for mesne profits ends after the tolerated trespasser leaves a property.

Hanoman v London Borough of Southwark [2008] EWCA Civ 624 on when housing benefit counts as rent under RTB rules.

And C, R (on the application of) v London Borough of Lambeth [2008] EWHC 1230 (Admin) on housing duties under the Childrens Act.

I’ll get to as many of them as I can tonight and the rest tomorrow.

Suitability and marital harmony

Published

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.

X v Hounslow

Published

Nearly Legal

on 9 June 2008

in Housing law

. 6 Comments

I have now got hold of the judgment in X v Hounslow [2008] All ER 337 (May) (thanks to assorted helpful sprites). [Edit 23/06/08 - now up on Bailii]. Previous posts on this one are here and here - this was the case that apparently instituted a potential duty of care for local authorities to protect vulnerable adults from third parties. It could be very significant indeed.

Having read it, I can honestly say I’m not sure what to make of it at all.

First, some clarification. Although nuisance was initially pleaded, a claim in nuisance was not followed through. This therefore has nothing to do with landlord’s liability to the tenant for another tenant’s nuisance. Although there was an alternative claim under the Human Rights Act s.6 and s.7, this was not followed through by the court, as not necessary.

This was, therefore, a claim in negligence only.

Those of us who are housing focussed (to the point of tunnel vision) will be having trouble with the idea of negligence in relation to a local authority housing function (save in relation to disrepair). And I’m still not sure how it is brought about here.

Key, I think, is that there was extensive social services involvement, warnings and requests for a transfer for X, Y and their children, prior to the dreadful events of the weekend. There was also housing department involvement, both in terms of awareness of the dangers and in terms of considering a transfer (although not an emergency transfer). However, it appears to me that the model that the Court followed was precisely that of cases where a duty of care to children was found in relation to social services functions, (e.g J.D & others v East Berkshire NHS Trust & others [2003] Lloyd’s Law Reports 552 or Pierce v Doncaster MBO [2007] EWHC 2968). Housing precedents don’t feature much until the end, and then the argument is confused and confusing.

Here is how the Court reaches the decision on negligence (but shorn of most of the factual evidence).

First, the Court insisted that Hounslow was a single entity and refused to take the knowledge, acts and omissions of each department separately. Each department ought to have informed the other of the situation, and that they failed to do so did not mean that that the different departments could be treated separately.

The Court adopted the test of Caparo Industries Ltd v Dickman [1990] 2 A.C. 605 in establishing duty of care: Was the injury and loss reasonably foreseeable? Was the relationship to the Defendant sufficiently proximate to warrant the imposition of a duty? Would it be just, fair and reasonable to impose a duty.

The foreseeability was clear, at the very least from a week or three before the assaults, going on the Defendant’s social services reports, reports to the housing department by neighbours etc..

That there was a relationship of sufficient proximity was dealt with very briefly. To quote:

[107] The Defendant was the Claimants’ landlord. More importantly, the Defendant, aware of the Claimants’ disabilities, provided social services for them and indeed their children.(…) Representatives of the Social Services and Housing Departments were regularly in contact with the Claimants and visited their home during 2000. Thus there was a close relationship between the parties to this litigation.

The Court found it to be just fair and reasonable to impose the duty on the basis of a limited scope. There was a specific duty to protect in a particular way, to move them out of the flat in response to the ‘unusual but dangerous situation that had developed’. The Court notes the dictum of Brennan J in Sutherland Shire Council v Heyman that novel categories of negligence should be developed incrementally and by analogy with existing categories. The existence of a duty to children was here being developed in such an incremental manner to include vulnerable people who ‘in many ways functioned like children’. In addition, case law ( JD v East Berkshire and Jain v Trent SHA [2007] EWCA Civ 1186 cited) indicates a ‘greater willingness to find the existence of duties of care subsequent to the passing of the Human Rights Act 2000.

Once the duty was imposed, breach of duty was clear. Could the Defendant have moved the Claimants out of the flat prior to the assaults? The Court found that although the Defendant’s main transfer process, its transfer to sheltered accommodation process and the ‘managment transfer’ process would all have been too slow, the ‘emergency system’, under which tenants could be transferred to B&B or temporary accommodation was available and was usually used by the housing department on the basis of information provided by social services.

On the evidence, the emergency transfer system should have been invoked. Either B&B or accommodation with relatives in the very short term were possibilities open to the Defendant.

Causation was clear, failure to move the Claimants had left them in the situation were the assault was likely and indeed took place.

Now, this seems to avoid housing law precedents on the lack of a duty of care by basically ignoring them completely, but matters take an odd turn.

At the hearing both parties apparently accepted that Hounslow’s emergency transfer provisions were governed by s.21 National Assistance Act 1948, specifically s.21(1) ‘….may make arrangments for providing (a) residential accommodation for persons… who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them’.

But after the hearing Hounslow sent a further note, arguing that this did not apply because s.21(8) of the NAA says ‘…Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made… by or under any enactment not contained in this Part of the Act or authorised or required to be provided under the National Health Service Act 1977″. Hounslow said that provision of emergency accommodation was governed by Part VII (s175-218) of Housing Act 1996, so it was precluded from being under s.21(1) NAA by s.21(8).

Hounslow argued that decisions on provision of social housing can only be challenged by way of judicial review, citing O’Rourke v Camden LBC [1998] A.C. 188, in which the House of Lords struck out a claim for damages for a failure to accommodate as homeless pursuant to s.63(1) Housing Act 1985. A scheme for provision of social housing for the benefit of society as a whole created no private law duty.

As HA 1996 substantially re-eacted the relevant parts of HA 1985, there was no entitlement to a private law damages claim on the part of X & Y, just Judicial Review.

The Court was not persuaded by this. Firstly as no evidence was given at the hearing. Secondly because it is not clear that s.21(8) did exclude s.21(1) in this instance. The persons referred to in s.21(1) do not include homeless people and the ‘provision’ referred to is arguably the provision of accommodation referred to in s.21(1). (This makes sense, as I read it s.21(8) is a limiting clause on the authority/requirements of s.21 - ‘just this and no more’).

Thirdly, since the Claimants were occupying the flat pursuant to a tenancy agreement, s.175(1) HA 1996 would not apply to the Claimants and nor would s.175(2). Using s.175(3) ‘not reasonable to occupy’ would mean the Defendant was conceding that it was not reasonable for the Claimants to be in the flat, due to the circumstances of the threat and assault. But the Defendant submits that for this reason it had no duty:

[148] …Standing back and looking at the facts of the case I would regard that as a surprising conclusion… The present case is distinguishable [from O'Rourke]. The Claimants were well established tenants of the Defendant. The Defendant had already exercised its powers as to social housing in relation to the Claimants. Their claim is that they should have been moved from that accommodation, and not necessarily into furthe Council accommodation. Their claim is not based on narrow considerations of housing policy… Their claim involves both the Housing and Social Services Departments, the interaction between them; and the manner in which they reacted (or failed to react)…

I am really unsure about this, of which more below. For good measure, the Court adds:

[149] …the reality of this case is that, by virtue of whatever statutory provisions, the Defendant actually had in place an emergency transfer procedure which it could have used before the relevant weekend, and which it did in fact use though only after that weekend.

[150] I therefore regard the Claimants as having a valid cause of action.

What on earth to make of this? For starters, surely the emergency rehousing would be effected under Part VI Housing Act 1996 not Part VII. Unless Hounslow had done something odd, emergency transfer provisions would be under the allocation policy (unless I’m really missing something about the position in 2000), not homelessness.

But this would lend support to Hounslow’s position based on O’Rourke. Although the Court distinguishes it on the basis that O’Rourke concerned what became Part VII, the broader point of ‘a scheme for the provision of social housing’ would be still clearer for a Part VI transfer.

I’m not sure about the Court’s argument that the move would not necessarily be to ‘Council accommodation’, either. It would be accommodation arranged by the Council to effect a move, and as short term, would be interim before moving to a new secure tenancy.

The Court’s conclusion, dismissing the statutory provision as ‘whatever’, is weak rhetoric, I think.

But that said, an extension of a duty of care to vulnerable adults as well as children in respect of the social services function seems less controversial. In fact, incremental. Which presents an odd position - if one accepts a duty of care by social services, the failure to move the Claimants was arguably down to the Housing Dept. Should social services be excused a breach of duty because the housing dept can’t have a private law duty of care and social services had no statutory power to effect a transfer themselves? The Court’s refusal to take the Defendant as separate entities (social services/housing), which is surely right, is irreconcilable with that conclusion.

Is there not an argument that, even if the emergency transfer powers are governed by Part VI (or even Part VII) HA, this is merely an enabling power and that the exercise of discretion - which is always necessarily in relation to specific circumstances - does attract a potential duty of care, precisely because it is not a ‘policy’ decision, but based on the particular danger to the tenant - i.e. the decision is (or should be) made on the basis of the tenant’s safety.

In the end, as far as I can tell, this is what the Court is putting forward in this case. At least, I think it is. I may well change my take on this case when I have had time to digest it.

This is going to the Court of Appeal, of course, and it is going to be a very difficult argument, on both sides.

Congratulations to Leigh Day & Co. and Counsels Elizabeth-Anne Gumbel QC & Henry Witcomb on bringing this one.

Illegal Eviction and Disrepair damages

Published

Nearly Legal

on 5 June 2008

in Housing law

. 2 Comments

There were a couple of cases mentioned in the June issue Legal Action that are worth a consideration when looking at quantum in illegal eviction cases, and also to some extent in disrepair cases. Legal Action has the full details, but in brief…

Addison v Croft Preston County Court April 2008
Assured Shorthold tenant. Landlady turned up with estate agent and buyer with no notice. A fortnight later, the tenant was physically ejected by four men, with some bruising. The tenant was out, sleeping at friends and in his van for 20 nights, before obtaining an injunction for re-entry, which was complied with.

General damages £3000 for fright and upset, and 20 days out of home without possessions.
Aggravated damages £1000 for manner of eviction
Exemplary damages £1000, following Law Commission guidance in Aggravated, exemplary and restitutionary damages (LC 247)

Rubio-Manzano v Ace Lettings and Pedonomou Clerkenwell and Shoreditch County Court April 2008
Assured Shorthold tenant who threatened to withhold rent due to disrepair (of which more below). Three men turned up and forced their way into the flat, threatened the tenant, pulled the telephone out of the socket. One caused injury to another tenant by kicking the door. Defendants then delivered a letter stating that the bearer was a certificated bailiff with powers to enter and seize goods. The tenant left to stay with a friend and put most of her belongings in storage. A couple of weeks later she returned to find locks changed and belongings interfered with. Police and tenancy relations advised the tenant to break in to remove her goods. The property was then left.

In criminal proceedings, the company pleaded guilty to two counts of harassment under the Protection from Eviction Act 1977.

Fines £2000 and £200 for the two incidents. (The Court said if the company directors had been individually charged, there would have been a likely custodial sentence).

In Civil proceedings

General damages £6000 for harassment and aggravated damages
Exemplary damages £2000
Special damages £840.40

There was also a disrepair claim. Disrepair ‘throughout the tenancy’ (May 2001 - Feb 2003).

radiator leak in hallway, causing staining and fungus growth
leak to bathroom ceiling
mice infestation
bannister loose and dangerous
windows in disrepair and draughty
poor decorative state
oven and grill did not work

Damages for disrepair were assessed at 30% of rent for a year (£3500) with a set off of one month’s rent owed (£840.40).

Comments

On the disrepair claim, this is another data point suggesting that the Courts are open to arguments for damages based on percentage of rent following English Churches v Shine and Earle v Charalambous, rather than the Wallace scale, as I have suggested before. That said, although the report doesn’t give detail on the disrepair, 30% on the headline items seems a little low. But there are so few disrepair claims getting to trial, it is hard to be sure. Counsel for the Claimant was Robert Latham, solicitors were Hopkin Murray Beskine - anyone care to comment further?

This case also appears to be support for the view that damages based on a percentage of rent is not based on the proportion of the property that was/is occupiable or useable - the percentage is not directly a question of useable floorspace, which is an argument I have heard advanced by some Counsel. Personally, I don’t think that Niazi, Shine or Charalambous entail that view, and that this is an unnecessarily mechanistic approach to a percentage calculation.

On the illegal eviction, clearly Rubio-Manzano is more generous than Addison, particularly given the actual physical eviction and period of homelessness in Addison. £6000 for harassment and aggravated damages on the facts given for Rubio-Manzano is a high award, particularly given the previous criminal fines for harassment, and useful to cite for that reason.

Addison appears to pretty much follow the ‘£1000 per week of being out of the property’ rubric, but the aggravated and exemplary damages are also useful to cite.

By the way, Legal Action also has a report by Shelter Gloucestershire on Stankova v Glassonbury, the rent deposit case discussed here, confirming the details of Housed and my earlier reports.

Third party costs against Councils?

Published

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?

Repossession - tips from a District Judge

Published

Nearly Legal

on 2 June 2008

in Housing law and job

. 0 Comments

On the back of tonight’s Panorama on the BBC about the impact of the mortgage/price housing market problems (available for the next week on iplayer), the Beeb has an interview with and tips from DJ Stephen Gould of Kingston-upon-Thames County Court. All sensible stuff for someone facing a repossession claim.

Interim Accommodation and Judicial Review

Published

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.

Duty to protect update 1

Published

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on 28 May 2008

in Housing law

. 8 Comments

Update on this case from Friday 24 May. No judgment available yet that I have seen, but there is a further new story on the Hounslow case at 24dash.com, which gives a few more details.

Specifically, the negligent failure found was that housing did not invoke emergency transfer processes, despite a) social services involvement with the family and b) complaints and warnings from neighbours about the youths’ presence and activities in the claimant’s home. It arose from a found lack of communication between social services and housing and lack of appreciation of the seriousness of the situation and failure to give priority in both departments, despite the evidence.

Damage of £97K, suspended pending appeal.

A duty to protect?

Published

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on 24 May 2008

in Housing law

. 4 Comments

A case is reported in the Guardian which apparently extends local authorities’ duty to protect tenants from third parties to include vulnerable adults, not only children.

A couple, both with learning difficulties, were terrorised in their flat by a group of youths over two days, during which they were assaulted and abused. Hounslow Council had failed to rehouse the couple, although the threat of attack ‘was foreseeable’.

At the High Court, Hounslow argued there was no duty of care, but Mr Justice Maddison held otherwise. The failure to rehouse was negligent. Damages of £100,000 were awarded. Hounslow were given permission to appeal.

I’m looking forward to seeing the judgment on this one.

Caravan sites and Tomlin orders

Published

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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.

Wondering about McCann

Published

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on 18 May 2008

in Housing law

. 0 Comments

Well, McCann v UK certainly seems to have stirred things up. Naturally, most of the speculation is on the effect and extent of the judgment.

I’m still trying to work out for myself what the likely or even possible effects are, so this is a work in progress.

In descending order of certainty…

Common law summary possession by a local authority/public body landlord after Notice to Quit (e.g Ex joint tenants; temporary accommodation under s.183 and possibly s.192 HA 1996; ’successors’ to deceased tolerated trespassers; non-successor occupants; etc.)

Possession proceedings will need to include the potential to consider whether the eviction is proportionate under Art 8.2 ECHR.

Does an assertion that the eviction is not proportionate constitute a defence? I think it is likely to be so. Although alternatives might include compensation, if the eviction is disproportionate, the court would be aiding a breach of Art 8.2 in making a possession order. (The similarity to the ‘unlawful act’ element in Malcolm v Lewisham might mean that the House of Lords judgment in Malcolm has an impact, but Malcolm concerns interpretation of statute, not ECHR).

Where will this leave the tenant? Most likely as an ex-tenant still in occupation. I can’t see much in McCann to suggest that the ending of the secure tenancy per se was taken to be disproportionate, the issue being purely that the possession proceedings could not consider proportionality of eviction.

Mandatory possession proceedings brought by a public body landlord under statute - for instance introductory and demoted tenancies.

Trickier, as to some extent the summary nature of the possession hearing is given in statute. While in common law proceedings, the Court can introduce ‘proportionality’ under its own duty under the Human Rights Act, it is surely different where the process is statutorily limited. Would the best the Court could do be a declaration of incompatibility?

Possession proceedings by non-public bodies, private landlords or RSLs, where summary or mandatory.

There have been suggestions that McCann might hold other than for a public body landlord. Given that private and RSL landlords have no duty to comply with the ECHR under the HRA, there is no duty on them to behave proportionately in evictions and therefore no basis for the court to hold them to proportionality as being their duty.

So, the only way that I can see that McCann would extend beyond public body landlords is if the Courts, as public bodies, are taken as being required to consider proportionality in their decisions to make an possession order - the duty of behaving proportionately being the court’s, not the landlords. Thus there would be a general duty to consider proportionality in all possession claims, whether brought by private landlord, RSL, public landlord, and whether summary, mandatory, or discretionary.

I very much doubt that this can be the case. It is not, after all, the court that is evicting the (ex)tenant/occupier, it is the landlord.

McCann focussed on the procedural ‘defect’ of the summary possession procedure against a local authority (ex)tenant. The LA’s ability to ’sidestep’ the requirements of HA 1985 via the NTQ was specifically raised as an issue by the ECtHR in the judgment. The ECtHR acknowledges that the existing summary procedure, and the availability of JR, provides safeguards to ensure the possession claim is lawful and for a legitimate purpose. If the ECtHR had been concerned with possession claims in general, then the lack of availability of JR against private or RSL landlords could have been mentioned as an even greater defect. But it wasn’t.

The ‘procedural defect’ is therefore a lack of ability to scrutinise whether the landlord’s interference with Art 8 rights is proportionate. This can only be the case where the landlord has a human rights duty to act proportionately.

I would be keen to be shown I was wrong, obviously, but I can’t see how McCann can extend beyond public sector landlords. Even if it does, we are back to the issue of statutorily given processes (s.21, mandatory grounds, etc.) and declarations of incompatibility.

Doherty v Birmingham in the Lords will give some clarification, but it is going to be fun in the County Courts for a while.

Snippets

Published

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on 17 May 2008

in Housing law and law blogs and blogging

. 1 Comment

A few bits and pieces…

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

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

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

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

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

Possession and human rights - blimey!

Published

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on 13 May 2008

in Housing law

. 29 Comments

Just when, post Kay v Lambeth in the Lords, it looked like the issue of human rights defences to possession claims was pretty much settled (i.e. there pretty much weren’t any), the ECtHR has decided to put a large stick in the spokes.

As many people have already emailed me to tell me (alright, four people, all of them lovely), McCann v United Kingdom 19009/04 was handed down today. This is a first hurried look, but this one is going to be big. I can’t link to the case directly. It is on the ECtHR site as a recent case. A word copy of the judgment is downloadable here case-of-mc-cann-v2-the-united-kingdom.

The facts can be dealt with quickly, as they are not, in the end, that important. The applicant and his then wife were joint tenants of Birmingham. The wife made accusations of domestic violence and the applicant was removed by ouster order. The wife and children were rehoused by Birmingham. The applicant moved back into the property. When Birmingham found out, they got the wife to sign a Notice to Quit, ending the joint tenancy. The wife claimed she was not told that this would mean ending the applicant’s tenancy as well. Birmingham then brought a claim for possession against the applicant. The County Court held that there was a breach of Art.8 ECHR in that the applicant’s Art.8 rights had not been properly considered and that Birmingham had apparently induced Mrs McCann to sign the NTQ. Brimingham appealed. The Court of Appeal held - after the decision on Qazi v Harrow [2003] UKHL 43 - that there was no Art 8 defence to the lawful possession proceedings. An attempt at a Judicial Review of the decision to procure an NTQ from Mrs McCann failed as there was no unlawfulness and the decision was properly open to Birmingham. The rest of the issue had already been decided by the Court of Appeal. Permission to appeal refused. The applicant was evicted and brought an application to the ECtHR.

The applicant raised Art 6 - the LA was not an independent tribunal when it brought about the termination of the tenancy. Rejected on the obvious ground that the County Court was the determining tribunal.

The applicant also raised Art 14 discrimination, comparing the LA’s relationship breakdown policy with the policy on domestic violence. Rejected on the obvious ground that DV and relationship breakdown are not the same thing, so different treatment cannot be discriminatory.

But the Art 8 issue went very differently.

It was common ground between the applicant and the Government that:

the property was the applicant’s home (home takes a wide definition, not reliant on lawful tenancy).
the applicant’s Art 8 rights were engaged.

The Government argued that any interference with Art 8.1 rights was justified under Art 8.2. The LA was pursuing legitimate aims, the absolute right to possession was legitimate in a democratic society. The case was distinguishable from Connors v UK (66746/01) as the key features of Connors were i) the vulnerable position of gypsies; ii) the absence of procedural protection - no scrutiny by the courts; and iii) discrimination of domestic law between those residing in private and in LA sites. The LA had merely been seking to regularise the situation in asking Mrs McCann to sign the NTQ. If this was improper behaviour, then Judicial Review was the appropriate course. And, post Kay, public law issues could be raised in the County Court possession proceedings.

The applicant argued that the manner in which the NTQ was obtained was a violation of his Art 8 rights, effectively ending his tenancy with no possibility of challenge.

The ECtHR found something completely different from both. Having reviewed the House of Lords decisions in Qazi and in Kay (and quoting Lord Bingham’s minority judgments in both with evident approval), the Court found that:

the interference with the applicant’s Art. 8 rights was lawful
the interference was in pursuit of a legitimate aim
but the issue was whether the interference was proportionate.

Proportionality is both a factual issue and an issue of procedure. The Court quotes Connors at 81-83 on proportionality and procedural safeguards. It states that it does not accept the limitation of Connors to cases concerning the eviction of gypsies, or to cases where there was a challenge to the law itself. Any person facing the loss of his/her home should, in principle be able to have the proptionality of the measure determined by an independent tribunal, regardless of whether there is a continued right of occupation.

HA 1985 s.84 provides this under reasonableness, but here the NTQ allowed the LA to bypass the HA 1985 procedure, and bring summary possession proceedings under common law. Apparently the LA did this without consideration of the applicant’s Art 8 rights.

The decisions in Qazi and Kay meant that it was not open to the County Court to consider proportionality, save in the exceptional case where ’something has happened since the service of the NTQ, which has fundamentally altered the rights and wrongs of the proposed eviction’ (Court of Appeal decision in Birmingham v McCann).

Judicial review, and by extension public law defences in the County Court did not permit of a consideration of proportionality as JR can only address issues of lawfulness and reasonableness of the LA’s decision. This is not the same as the balancing act of proportionality. There was, in any case, no doubt that the LA had acted lawfully.

There was therefore a procedural breach of Art 8 in that there was no procedural mechanism for the issue of whether possession was proportionate to be considered in the summary possession hearing.

The Court did not accept that a consideration of proportionality under Art 8.2 would be a hardship for the functioning of the system. It would be exceptional for an arguable case to be raised that would require the issue to be considered.

Whether Mrs McCann had understood the import of the NTQ was immaterial. The issue was the lack of any possible consideration of proportionality under summary possession where one joint tenant has served NTQ.

In the Applicant’s case, the Court felt it was doubtful that he would have been any more successful, even if he had had an Art 8 defence. But there was a violation of Art 8 in its procedural aspect.

Well, blimey.

As far as I can see this amounts to a statement that common law summary possession proceedings (at least brought by public bodies) require that a defence of lack of proportionality under Art 8.2 be available.

Clearly this extends beyond the specific facts of this case (end of joint tenancy by NTQ to summary possession claim) to include any common law possession claim brought by a body subject to the Human Rights Act.

Does it go any further?

For the common law, the courts have an obligation as public bodies to behave in accordance with the ECHR, so there is now arguably a duty on them to consider proportionality in common law possessions where the issue is arguably raised. This might include, for instance: possession claims against those in occupation after the death of a tolerated trespasser, who would otherwise have succeeded to the tenancy; or those whose secure tenancy has ended by operation of law (e.g. Malcolm in Lewisham v Malcolm). It would presumably also include possession claims brought against entrenched tolerated trespassers as trespassers (so under common law).

What about other forms of possession against limited or no security tenancies? Possession claims for introductory or demoted tenancies? Temporary accommodation after discharge of duty under Part VII? The effectively summary nature of the possession claims in these cases is given in statute to some degree.

Arguing for the duty to hear an Art 8.2 proportionality defence where there is no provision for a defence at all in statute is going to be a strain on the Court’s HRA duty to interpret statute as in accordance with the ECHR wherever possible. I can see a lot of argument about this. But the direction of the judgment does seem clear - any possession hearing should include the possibility of a proportionality defence being raised, if arguable, at least against a public body landlord.

It is worth noting the the ECtHR takes the s.84 HA 1985 as affording sufficient procedural safeguard for secure possession claims.

But I really need to think about this for longer. Anybody else’s thoughts welcome.

By the way, Garden Court North have a briefing paper on this case now out at their news page - the May bulletin. And Garden Court (south) sent out a press release a day later (14 May) on the ‘decade altering decision‘ and pointing out it was their Stephen Cottle who acted for Mr McCann.

Letting repossessed property

Published

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on 12 May 2008

in Housing law

. 0 Comments

As a follow-up to the mortgage repossession post below, I’ve just spotted a sad story on Landlord Law blog. Tessa had a case in which private tenants discovered, when the bailiffs turned up, that the property they had just rented was subject to a mortgage repossession order which had expired before they even moved in. I suspect this is not going to be that unusual.

Tessa wonders whether there should be a duty on managing agents to ensure that the properties they let on the landlord’s behalf are actually available to let. An interesting thought. Tessa asks for comments…

When does enforceability end?

Published

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on 12 May 2008

in Housing law

. 2 Comments

Or, to be precise, when does a Suspended Possession Order for rent arrears cease to be enforceable? In broad terms, the answer is clear - when all sums due under the order have been paid off. But when is that?

After Marshall v Bradford MC, it is vital for a .s85 application to revive tenancy by varying the possession order that the original possession order remain enforceable, particularly since the failure of the Payne approach in Porter v Shepherds Bush.

I’ve posted on this before, but I was reminded by the coda to James Stark’s article on Porter in the latest Legal Action (May 2008). Incidentally, that is well worth reading. I think it is safe to say Mr Stark is not happy with the Court of Appeal judgment, and is not happy in considerable detail. I remain a fanboy, but he has an uphill battle with this one. I’m going to have to have a think about the detailed argument.

At the end of the article James Stark suggests that it may still be possible to make a revival application if the rent arrears have been paid off if the Court costs remain unpaid. He further suggests that an HB payment which takes the account into credit is impliedly appropriated to rent only.

To which I can only say, it utterly depends on your Court and your DJ. I have seen a number of successful s.85 revival applications on the back of unpaid court costs, but some DJs are taking the L&Q v Ansell Court of Appeal judgment as authority for the proposition that the rent account going into credit by more than the courts costs means that the SPO has been satisfied in total, and refusing revival applications on the basis that the Court has no power under s.85 to vary an unenforceable order, leaving an entrenched tolerated trespasser.

In my view, it is not correct to find support for this view in Ansell. In that case, the County Court judge found that the debt and costs were satisfied by the rent account going into credit, but the specific issue wasn’t appealed, so the Court of Appeal couldn’t find on it (although they sounded very doubtful that this was correct).

More worryingly, there has also been a line of reasoning that the SPO in form N28 rolls costs and arrears into one judgment debt, and one cannot expect the landlord to collect arrears and costs separately. Hence a sufficient credit will satisfy the debt.

I’m not sure about this, particularly when the landlord has maintained separate court costs accounts/not rolled the full judgment debt into the arrears/not collected or debited the court costs. It ought, at least, to be possible for the tenant to specifically appropriate payments to the rent. The suggestion that HB is impliedly appropriated to the rent may also help here.

But, with some DJs, this just isn’t working.

Until there is a decent appeal on the issue, we are left at the mercy of the individual view of District Judges. In my area, I know of a couple of appeals to Circuit Judges that were settled prior to hearing with an offer of grant of new tenancy - clearly the local authorities concerned were keen to maintain the alleged Ansell position.

Does anybody know of a Circuit Judge, or higher case, on this issue? Because I’m getting very tired of the mess.

Of course, the proposed ‘replacement’ tenancies in the Housing & Regeneration bill will sort this out, at least as it stands at present, but that is a long time to wait.

Article Series - Tolerated Trespassers

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Mortgage possessions - Gordon feels your pain

Published

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on 10 May 2008

in Housing law

. 11 Comments

Mortgage repossessions are rising at the fastest rate since 1991. According to the MoJ quarterly figures [pdf]:

Possession claims in the first quarter of 2008 were 38,688, 7% more than in the last quarter of 2007. The rise over the last year was 16%.
27,530 mortgage possession orders were made on a seasonally adjusted basis, 17% higher than in the first quarter of 2007 and 9% higher than in the fourth quarter of 2007.
47% of mortgage possession orders were suspended compared to 47% in the first quarter of 2007 and 46% in the fourth quarter of 2007.

Caroline Flint and the Chancellor announced a £10 million package of measure to ’support homeowners facing difficulties with their mortgage’.

This package includes measures to ensure that financial advice and support is available for borrowers who may need it and includes an additional £9 million extra funding for face-to-face debt advice provided by third sector partners including Citizens Advice Bureau.

Let us unpick this a little. That is £9 million over three years, so £3 million a year to ‘third sector partners’. Citizens Advice claims advice is provided at 3000 locations, so, if equally distributed, that is £1000 per location. Of course, it won’t be equally distributed - some will be used centrally or for training and I would be surprised if certain bureaux weren’t targeted, particularly those that run Court advice, but it doesn’t actually look like much.

The other £1 million (over three years!) is presumably to fund the other promises:

expanded access to free legal representation at county courts throughout England for households at risk of repossession;

strengthened National Housing Advice Service to provide a new comprehensive debt advice service

I take this to mean a bit more support for duty scheme possession solicitors. Does anybody know about the ‘National Housing Advice Service’? It has slipped beneath my radar, or do they mean Community Legal Advice?

The press release adds that this £10 million

builds on the services already in place, backed by £560 million Government investment, such as face to face debt and financial advice, a national debt helpline, homelessness prevention work by every council, legal aid, and financial support for low income households who may face short-term difficulties in repaying their mortgage.

Uh huh. Few mortgage repossession cases are eligible for legal aid. Council ‘homelessness prevention’ is hardly of use and ‘financial support’ amounts to limited payments of interest only, after six months of eligibility.

The government is also talking to the main banks on avoiding repossessions. However, my anecdotal experience, also reported by Shelter, is that it is sub prime mortgagees, second mortgagees and secured loan holders who are pushing for repossessions, often with relatively low amounts at stake. Given the great frenzy of cashing in equity over the last few years, this could present a very large ongoing problem.

Meanwhile, the Civil Justice Council are consulting on proposals for a mortgage possessions pre-action protocol. The consultation paper is here [pdf] and the consultation ends on 23 May 2008.

Cardiff homeless - tactical lessons?

Published

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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 aggr