Tag Archive for 'judicial-review'

Probably wrong but wholly academic

Published by NL on 15/03/2010 in FLW case note, Homeless and Housing law - All. 7 Comments Tags: , , .

Raw, R (on the application of) v London Borough of Lambeth [2010] EWHC 507 (Admin)

This case is a vivid illustration of the difficulties of challenging a Local Authority’s apparent homelessness gatekeeping practices, or alternatively, if you are a Local Authority, a clear example of tactical defences to such a challenge.

The problem is that a claim for judicial review seeking to address, in part, the lawfulness of a policy, rests pretty much entirely on the impact of the policy on the individual claimant. Thus the astute Council settles the effect on the Claimant, leaving the broader policy issue as academic and pretty much impossible to pursue.

In this case, Mr Raw (incidentally a veteran of the Kay v Lambeth short-life housing battles and still in the same property despite an order for possession being made) had applied as homeless to Lambeth. Lambeth had referred him to Lettings First – a deposit scheme for private accommodation run by Lambeth, and it became clear that they were not going to proceed with making s.184 inquiries once the referral had been made. Once judicial review proceedings were underway, Lambeth restarted inquiries under s.184, eventually accepting the full duty, but removed Mr Raw from the Lettings First scheme until the decision that the full duty was owed was made. it then re-instated Mr Raw on the Lettings First scheme as well as allowing him to bid under Lambeth’s CBL scheme.

Mr Raw’s JR claim included a claim for a declaration that failing to make inquiries under s.184 was unlawful, and that a referral to Lettings First was not a basis to stop the s.184 process. By the time the matter came to hearing, then, this part of the claim was wholly academic (as was the rest).

Mr Raw sought to persuade the court that this was an iossue of broader public interest, given that at least 100 and probably more homeless applicants each year were referred to Lettings First and, as the conditions appeared to be standard, would have their homeless applications abandoned, or at least frozen. This looked like gatekeeping.

Mr Watkinson who appeared on behalf of the claimant invited me to exercise my discretion to entertain the application for a general declaration and to adjudicate upon it. In doing so he relied on two points. The first to which I refer in more detail below was that it is to be inferred that there are many other people in a similar position to that in which the claimant found himself before the Council agreed both to continue its inquiries and to allow him to participate in the rent deposit scheme, so that the court would have to determine the issue raised in this case sooner or later in another case if I declined to do so in this case.

Mr Watkinson’s second ground was that the operation of the Council’s policy, as he submitted, has the effect that claims for judicial review brought by people in the position of the claimant are always likely to result in offers being made by the Council similar to those made in this case before the claim gets to court with the result that unless the court is prepared to adjudicate on the legality of the Council’s policy in a case which no longer has any practical effect on the particular person who has brought a claim there will never be a mechanism for subjecting the alleged illegality of the Council’s policy to judicial scrutiny.

The Court considered R (on the application of Zoolife International Limited) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) on the issue of hearing academic cases. Silber J stated

In my view these statements show clearly that academic issues cannot and should not be determined by courts unless there are exceptional circumstances such as where two conditions are satisfied in the type of application now before the courts. The first condition is in the words of Lord Slynn in Salem (supra) that “a large number of similar cases exist or anticipated” or at least other similar cases exist or are anticipated and the second condition is that the decision in the academic case will not be fact-sensitive. If the courts entertained academic disputes in the type of application now before the court but which did not satisfy each of these two conditions, the consequences would be a regrettable waste of valuable court time and the incurring by one or more parties of unnecessary costs.

Here, although the claimant had sought evidence on the existence of other claims on this topic, there was not sufficient evidence that a large number of claims would be brought in the future, or had been settled in the past. And, while

In principle in a hypothetical case in which a claimant was able to identify an unlawful policy implemented by a local authority which could never be challenged by a person adversely affected by it because the nature of the illegality was so transient or short lived that it would always cease before it could be brought to court or where the local authority deliberately disapplied the policy so as to render all claims academic before the court could decide on them, I could imagine that there might be a good reason in the public interest for the court to entertain an academic claim for a declaration that the policy was unlawful.
this did not appear to be such a case.

Further

There was no evidence before the court of other cases in which the Council’s allegedly unlawful policy was initially applied but subsequently disapplied, let alone disapplied by the Council after proceedings for judicial review had been issued with the motive of preventing the court from adjudicating upon the legality or illegality of the alleged policy.

And, although Lambeth’s account of its Letting First scheme and referral policy left questions unanswered, there was some force in Lambeth’s argument that any individual challenge to it would be fact sensitive, depending on how the scheme affected that person.

The Court declined to adjudicate on the ‘academic’ declaration.

However, as a coda, Mr Justice Stadlen provided Lambeth with a homily on the immediate nature of the duty to make inquiries under s.184 (and provide interim accommodation under s.188) and offered his view that the apparent operation of the Letting First scheme gave rise to serious concern:

Thus if for example while waiting for a property to become available under the rent deposit scheme a person to whom the 7 January 2009 document or its equivalent was addressed was in a position where had the council continued its inquiries it would have had reason to believe that he might be homeless, eligible for assistance and have a priority need there is nothing in the document to tell him either that he may be forfeiting a right to interim accommodation which he might otherwise have had or alternatively that the council would consider itself bound to secure interim accommodation whether under section 188 or voluntarily.

and

it might well be that a blanket policy of ceasing inquiries in all cases where a Part VII applicant has been referred to the rent deposit scheme could be construed as such an avoidance of statutory obligation. In short the benefits of the rent deposit scheme, great though they may be, are not equivalent to and may not be an adequate substitute for at any rate the benefits to a Part VII applicant of the duty to provide interim accommodation under section 188, which benefits may in practice be diminished or undermined in the event of the Council not completing its section 184 inquiries.

But. of course, these are merely observations on what might have been the finding had the Court decided to hear the case on the facts and Lambeth’s Letting First scheme was not found to be unlawful.

Perhaps you should get a move on?

Published by J on 17/02/2010 in Allocation, Housing law - All and Uncategorized. 0 Comments Tags: , .

R (Joseph) v LB Newham [2009] EWHC 2983 (Admin)

We noted the permission decision in this case back in September 2009 when I expressed the view that, if Newham lost this case then some fish-based humiliation was due to them. Well, the claim for judicial review has now been allowed and I stand by my view. A woeful display by LB Newham, I think you’ll all agree.

Mr Joseph was the secure tenant of LB Newham in a one-bed property and had been since 1992. The property was now severely overcrowded, as he lived there with his wife and two children. Under the terms of the allocation scheme, he was entitled to a two-bed property. However, Newham reduced his priority (s.167(2A), HA 1996) on account of an alleged overpayment of HB (which had not been repaid) from 1998/1999.

Mr Joseph had made quite clear that he disputed this debt (albeit it hadn’t properly tried to appeal the 1998/1998 determinations) but Newham – remarkably – hadn’t tried to take any steps to enforce their alleged right to recover this money. They had just held the debt over his head, like the Sword of Damocles, presumably hoping that the debt would get paid if Mr Joseph ever wanted to transfer.

Mr Joseph (acting in person) sought judicial review of the decision. His primary case appears to have been that the debt was now statute barred. Whilst s.75, Social Security Administration Act 1992 did empower the authority to recover overpayments, it was required to do so within 6 years of the cause of action accruing by virtue of s.9, Limitation Act 1980. It was unlawful and irrational to take statute-barred debts into account.

Newham don’t actually appear to have addressed the issue of why they didn’t take any enforcement action against Mr Joseph. They just appear to have bleated on about the unfairness of the situation and that a strict limitation period would encourage tenants to withhold their debts and wait for them to become barred.

HHJ Thornton QC was having none of it. The debts were indeed statute barred and it was irrational, unlawful and contrary to Mr Joseph’s legitimate expectations to take statute-barred debts into account. Claim allowed and a declaration granted that:

“it is unlawful for Newham to apply its property-related debt policy when operating its choice-based housing allocation scheme to debts created by the requirement to repay overpaid housing benefit where those debts are irrecoverable by virtue of section 9 of the Limitation Act 1980…”

I suspect that I probably do more work for authorities than most of the NL team but I am amazed that Newham ever let this case get to court. Why on earth would you fight this case over under £900, in circumstances where you’ve done nothing to recover the money since 1999? I can only presume that Newham must have thousands of pounds of old debts owing and thought this was an important case to fight but, having lost the case, it’s now just exposed the flaw in its position to all those people who it claims owe it money.

Congratulations to Mr Jospeh. A well-deserved and just victory. Newham – hang your head in shame. A very unattractive way to deal with your alleged debts got exactly what it deserved.

Rent arrears, transfers and Weaver in operation

Published by NL on 07/01/2010 in FLW case note, Housing law - All and assured-tenancy. 13 Comments Tags: , , , .

McIntyre & Anor, R (on the application of) v Gentoo Group Ltd [2010] EWHC 5 (Admin)

This was the judicial review of North Sunderland Housing Company’s refusal to permit an exchange of homes by the Claimants, joint assured tenants, with another NSHC assured tenant. NSHC are a subsidiary company of Gentoo and no points were taken on whether Gentoo were the proper Defendant. NSHC had refused to permit the exchange unless Mr McIntyre paid off an historic debt for rent arrears accrued when he lived at another property as a tenant of Sunderland City Council. Originally Mr & Mrs were joint tenants of Sunderland City Council in the property, prior to a stock transfer to what became NSHC in 2001. It is quite a complex and significant case, involving the disputed conjunction of private and public law and the first significant test of the application of the Court of Appeal Judgment in L&Q v Weaver [2009] EWCA Civ 587 on the status of RSLs as exercising a public function in their housing function. Apologies for length, but there is a lot in this judgment, with wider implications for all sorts of challenges, not just exchanges or challenges to RSLs.

The brief facts:
Mr & Mrs M were the joint secure tenants of Sunderland CC from 1984. In 1996, while Mr M was separated from Mrs M, he lived at another Sunderland CC property and accrued rent arrears. In 1998, the Council obtained a judgment against him for £597.80 plus £133.75 in respect of costs. The Council attempt to enforce that judgment by warrant on no less than 5 occasions, but no response or bailiff entry was achieved in respect of that property.

In 2001 the original property was sold to NSHC’s precursor, in a package of 36,000. Mr and Mrs M were granted an assured tenancy from March 2001.

The tenancy agreement provided that:

You have the right to exchange your home with another tenant, providing you meet certain conditions. Please refer to the Tenants’ Handbook for further details of the right to exchange and the circumstances in which it applies.

The Tenant’s Handbook stated that there was a right to exchange properties with another tenant of the same RSL provided that:

You both have your local Housing Company’s written consent.
• You make sure that neither of you is in breach of any of your tenancy conditions or obligations. You must also comply with any reasonable condition attached to your local Housing Company consent relating to the payment of outstanding rent, the remedying of any breach or performing any obligation of the tenancy agreement.
• The exchange does not result in any property either becoming overcrowded or under occupied.

And:
Your local Housing Company will not unreasonably withhold permission. It will not withhold permission on any grounds except those in Schedule 2 to the Housing Act 1988

The agreement for the transfer of housing stock between Sunderland CC and NSHC’s precursor stated that:

All arrears of rent due as at the Completion Date from existing and former tenants of the Property [which included all the freehold and leasehold property the subject of the housing stock transfer]….(the “Arrears”)…together with all rights to recover the same shall be assigned by the Council to [SHCL].

The rights to existing possession orders and money judgments were assigned.

In April 2007, Mr & Mrs M applied for consent to an exchange with another NSHC assured tenant. NSHC responded that consent was refused “as there were rent arrears and court costs outstanding”. The M’s solicitors responded and “an offer was made that, if consent was granted, Mr McIntyre would pay the amount outstanding by instalments. They also wrote to NSHC asking it to reconsider its decision contending that it was unreasonable to withhold consent to an exchange based on an irrecoverable debt; that it meant punishing Mrs McIntyre for a matter not of her own making; and that a strict policy of refusing an exchange on the basis of historical rent arrears was prima facie unreasonable.”

NSHC replied that consent “was conditional on Mr McIntyre clearing the Former Tenant Rent Arrears owed to the Sunderland Housing Group before any move; that it was entirely reasonable to require him to pay monies which were outstanding before permitting him to exchange; and that, given the Group’s historic dealings with him with respect to the arrears, the offer to pay by instalments after the exchange was not acceptable.” The JR claim was issued.

Issues
The MacIntyres argued that:
i) the decision not to consent until payment of Mr McIntyre’s historic and unenforceable rent arrears in respect of another tenancy was amenable to JR
ii) it was one no reasonable person could have taken in the circumstances
iii) Gentoo had simply applied a blanket policy with no consideration of individual circumstances

Gentoo argued that:
i) the decision was not amenable to JR
ii) if it was, the claim should be dismissed as there were alternative remedies available
iii) the decision was not unreasonable
iv) the complaint that a policy had simply been applied with no consideration of the Claimant’s circumstances was not raised the Claimant’s original grounds.

Amenability to JR

Gentoo argued that R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 could be distinguished:

(i) that a decision to refuse consent to the mutual exchange of a tenancy does not result in the individuals who may be concerned becoming homeless which a decision to terminate a tenancy may do; (ii) that assignment of a secure tenancy by way of exchange falls outside the cases governed by Part VI of the Housing Act 1996 dealing with the allocation of housing accommodation; and (iii) that registered social landlords are not obliged by any enactment to deal with applications for mutual exchange on any particular basis, unlike local housing authorities who must deal with applications for such exchanges in accordance with section 92 of the Housing Act 1985.

Held, that while each of these points was correct in itself:

they do not serve, either individually or collectively, to distinguish this case from Weaver. Whether an exchange of social housing should be permitted involves a decision to be taken in the discharge of what the majority in the Court of Appeal regarded as the public function of managing and allocating social housing. This is not merely because (as the Tenants’ Handbook in this case recognises) such an exchange may result in a property becoming overcrowded or under-occupied. It may also involve questions about how best to meet not only the need for social housing of those tenants wishing to exchange and their families but also the need of others for it. Like a decision to terminate a tenancy, in some cases it may also engage an individual’s right to respect for his or her private and family life.

Thus the fact that registered social landlords may have greater freedom than local housing authorities have in responding to applications for mutual exchange does not mean that such applications do not require them to take decisions in the discharge of what the Court of Appeal regarded as their public function of managing and allocating social housing. Nor did the majority of the Court of Appeal intend to limit that function to the doing of those things that are governed in the case of a local housing authority by Part VI of the Housing Act 1996 which regulates the allocation of housing by such an authority. Indeed a decision to terminate a tenancy by a local housing authority is not governed by those provisions: see section 159(2) of the 1996 Act. The fact that such a decision may result in an individual becoming homeless was not the basis for regarding that decision in Weaver as not constituting an act of a private nature. The decision was so regarded because it was one taken in the discharge of what the Court of Appeal regarded as a registered social landlord’s public function of managing and allocating social housing. That explains why it also was considered susceptible to a claim for judicial review. Such a claim is one to review the lawfulness inter alia of “a decision, action or failure to act in relation to the exercise of a public function”: see CPR Part 54 rule 54.1(2)(a)(ii).

For this reason, the attempt to distinguish Weaver failed.

Gentoo also argued that the condition in the Tenant’s Handbook on mutual exchange was a purely contractual condition. NSHC’s decision whether to hold to that condition or not was a private decision.

Held: Even if this were so, the decision about whether or not to implement the condition was a discretion which fell under the function of managing and allocating housing stock, so under Weaver.

The relation of public and private law

Gentoo’s argument appeared to rest on the ground that “public law makes no difference when considering the lawfulness of an exercise of a contractual right, particularly one that must be exercised reasonably. However, that a right is exercised under contract does not necessarily that may not be invalid under public law. The private law decision may be unfettered, but that does not exclude public law controls – for example terminating a local authority tenancy at the time before they had statutory security of tenure, Cannock Chase DC v Kelly [1978] 1 WLR 1.

While a contractual right that has to be exercised reasonable under the contract – as here -may more plausibly appear to be outside the ambit of JR. However, even if the private and public law requirements and consequences were identical, this would not mean that only private law would be applicable:

i) First there may be a difference in what matters fall to be assessed as reasonable or unreasonable. Thus public law may affect the process by which a decision is reached to exercise such a right (including the considerations taken into account and the purpose for which the right may be exercised) as well as requiring the result not to be objectively unreasonable. In private law by contrast the objective reasonableness of what is done may be the only relevant matter. In other cases the reasons why that result was in fact chosen may also be material. There is, therefore, no necessary identity in what matters falls to be assessed as reasonable or unreasonable in public and private law.

ii) Secondly the perspective from which the reasonableness or unreasonableness of what is done falls to be assessed may be markedly different. Normally the functions which are vested in a public authority, and the rights which it may acquire in discharging them, fall to be exercised in the public interest for the purpose for which the function was conferred having regard to the consequences of their exercise for others. The reasonableness of their exercise does not normally fall to be assessed purely by reference to the interests of the public authority itself since functions are not normally vested in such a body for its own benefit. By contrast the reasonableness of the exercise of some rights in private law may fall to be assessed simply by reference to the particular legitimate interests of the person having that right. In such a case a right might be exercised reasonably (or not unreasonably) as a matter of private law but unreasonably as a matter of public law.

iii) Thirdly the onus of proof and the standard of reasonableness to be deployed in resolving any dispute about the exercise of the right may vary. In public law, for example, the onus is on a claimant to show that a public authority’s decision was one no reasonable person could have made in the circumstances. In private law the onus may instead be on the person exercising a right to show that what he has done is reasonable.

iv) Finally the persons who may be able to challenge the reasonableness of what is done may be different. In public law anyone with a sufficient interest may do so. In private law it is normally only another party to the contract who may do. In this case, for example, the person with whom the Claimants wished to exchange tenancies might have challenged NSHC’s decision to grant the Claimants a conditional consent to that exchange if that decision was unlawful in public law even though as a matter of private law that person may not have been able to do so.

These elements need to be considered and addressed in a dispute over whether a public or private law right or remedy is involved. Where a public authority is exercising a contractual right, the public authority may take factors into account matters which would be irrelevant in private law when deciding whether to exercise that right as a matter of public law. Conversely, ” a contractual right may be exercisable as a matter of private law in a manner which it would not be capable of being exercised in public law as the considerations which a public body may take into account in exercising its public functions may be narrower than those which a person not exercising such functions may do”.

Nonetheless, when a public authority decides whether or not (and, if so, how) to exercise any contractual right it may have, it must consider whether it can do so lawfully as a matter of private law. No reasonable public authority would do otherwise. Of course failure to do so may be immaterial if there is a contractual right to do what the authority may decide to do. However, if a public authority simply assumes, or decides to act on the basis, that it has a contractual right to do what it decides to do or, when doing so, takes into account something that it may not do as a matter of private law, then it has equally misdirected itself in law or taken into account what in the circumstances is a legally irrelevant consideration when discharging the public function in question and it has thereby erred in public law. In such a case the other contracting party will no doubt have an alternative remedy available in private law and it may well find that permission to apply for, and any relief sought on, a claim for judicial review will be refused. But it is possible that there may be some occasions in which others adversely affected may have sufficient standing to apply for judicial review if a decision taken in relation to the discharge of a public function is thus erroneous in law (as indicated above) or the question of its lawfulness may arise in other proceedings. The fact that such a decision is taken in relation to the discharge of a public function makes it likely that there will be others who may be adversely affected by it, including those who may be required to help finance the authority’s activities. [para 36]

So, did the JR claim in this case bring anything more than the Claimants may have in a private law complaint? And should relief be refused if there was an alternative private law remedy open to them?

Against Gentoo, the Court found that clause on exchange of tenancies in the tenant’s handbook was one that was subject to which section 1 of the Landlord and Tenant Act 1988 applied. This meant that when the tenant serves a written application for consent, the landlord must serve a written notice on the tenant within a reasonable time specifying the reasons for withholding that consent (if it is withheld) and the conditions imposed (if it is granted subject to conditions). The landlord also owes a duty to give consent, except in a case where it is reasonable not to give it, and that duty is not satisfied if consent is granted subject to any condition that is not a reasonable condition. The tenant has claim if the landlord is in breach of these conditions.

Following Ashworth Frazer Ltd v Gloucester City Council [2001] UKHL 59, any condition imposed by the landlord must be something affecting the subject matter of the contract which forms the relationship between the landlord and the tenant. However, the landlord’s obligation is to show that his conduct was reasonable, not that it was right or justifiable, and it is only in exceptional cases that a landlord may be required to take into account anything beyond his own interests – something of the order of gross unfairness, or a clear disproportion between benefit and detriment.

This then would be the private law basis for the claimant’s claim. It would appear that there may well be factors that would weigh in a public law decision that would not in a private law one, such that the two could not be said to be identical. This issue of the application of s.1 Landlord and Tenant Act 1988 is key to this case and we’ll come back to it below.

On the public law challenge

The MacIntyres contended that the amount involved was one that NSHC never had any right to, as it was not incurred in respect of the current property. On the evidence is was hard to be clear whether the property for which the arrears were incurred was included in the assignment by Sunderland CC to NSHC. However, the benefit of any orders for money judgments obtained by the City Council against former tenants of premises comprised in Clause 9.1 of the stock transfer were assigned, and that certainly included the money judgment against Mr M.

On the MacIntyres’ argument that the sums were irrecoverable by virtue of the time elapsed, this was mistaken. Although as a simple debt, the Limitation Act 1980 would apply, there is no limitation on a judgment debt, simply on bringing a second action on that debt. An application writ of execution may require the Court’s permission, CPR Schedule 1, RSC Order 46 r2(1)(a), CPR Schedule 2 CCR Order 25 r5(1)(a), but none of that bars recovery of a judgment debt by other means, e.g. winding up petition, after 6 years. Accordingly, the Judgment debt in this case could not be considered as necessarily irrecoverable. Further, a statued barred debt does not, in any event, cease to be a liability – just unenforceable.

The MacIntyres contended that the sum could not be considered to be related to the payment of outstanding rent, as per the Tenant’s Handbook. However, the Tenant’s Handbook referred to ‘outstanding rent’, without a ‘lawfully due’ condition. Plus the Handbook did not limit the possible conditions the landlord may set to ‘outstanding rent, so in the end the question was simply whether the condition set was one no reasonable landlord of social housing could have imposed in the circumstances.

In view of the history of the debt, “it cannot be said that no reasonable landlord of social housing could have made payment of any amount due from Mr McIntyre a condition of its consent to a mutual exchange of his joint tenancy merely on the ground of the lapse of time since the order was made by Sunderland County Court.”

So, these elements of the claim failed. However, and key to the case, the debt was not incurred in relation to the property on which the exchange of tenancies was proposed. In a private law, contractual, situation, recovery of a debt owed in relation to another property would not be considered a reasonable condition for consent to assignment. It has “nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease”. Gentoo’s arguments that it was a matter ‘not extraneous to the lessee’ was dismissed – that something (e.g. hair colour) might be related to the proposer assignor did not make it relevant.

Gentoo then argued that the condition was expressly set out in the Tenancy Agreement. This was not so. The natural meaning of the term in the tenancy agreement, ‘outstanding rent’, was that it referred to rent for the tenancy involved. This was particularly so when a joint tenancy was involved, as the condition would have to alert someone entering a joint tenancy that they may be frustrated in an exchange by the other joint tenant’s unrelated debt. In any event, the parties agreeing a term wouldn’t make it reasonable in Amzworth Fraser terms, unless a ‘qualifying lease’ under Landlord and Tenant Act 1927, which was not relevant here.

Gentoo’s construing of s.92(5) Housing Act 1985 to allow local authorities to recover rent due on another tenancy before consenting to an exchange was also in error. S.92(5) refers to ‘rent lawfully due’, which is here held to mean rent due on the tenancy at issue in the exchange. The attempted extension by comparison with HA 1985 failed.

In this case, also, the exchange was between NSHC’s tenants. Gentoo argued it was entitled to set the condition in view of Mr McIntyre being the prospective tenant of the exchanged property. But this would be a condition on the other person in the exchange, not the MacIntyres, and that was not what was done. In any event, the MacIntyres were not in arrears with their rent on the current property.

As a result:

The condition imposed by NSHC was thus not one in my judgment that it could impose on any consent to an assignment by the Claimants which was not to be unreasonably refused as a matter of private law. NSHC plainly proceeded on the assumption that it could do so and in that respect erred in law and took into account something, namely the amounts outstanding in respect of 78 Rockingham Road, that was irrelevant to its decision to impose that condition. It thereby erred as a matter of public law. [para 90]

If the condition had been a viable one at private law, none of the Claimants’ arguments would have succeeded:

Had the condition been one capable of being imposed as a matter of private law, however, there is no reason in my judgment why it would have been unreasonable to do so as a matter of public law subject to the other arguments which Mr Paget advanced. Recovering what is owed to a registered social landlord to assist in the provision of social housing is patently not an unreasonable objective in itself for such a landlord. Indeed it might well be thought not to be acting reasonably, other things being equal, if it does not do what it reasonably can do to obtain what it is owed by others, including those who occupy its social housing.[para 91]

In mopping up the remaining arguments: it was not unreasonable that Mrs MacIntyre was being penalised as a joint tenant. In any such exchange situation someone would end up being penalised for the fault of another in that the exchange did not go ahead; The size of the amount was not relevant – and would have the odd effect of saying that NSHC should have been stricter and sought the court costs as well as the arrears debt; it was not unreasonable for NSHC not to accept an offer of payment in instalments, as there was no evidence the amount could not be paid off at once and there was no particular detriment in not being able to exchange now.

The argument on a blanket policy had not been raised in the claim. No evidence was brought, just an assertion, and permission would have been refused to amend. The Defendant had not had the opportunity to deal with the contention. In any event the appearance was that NSHC had at least been prepared to consider instalments, which went against a ‘blanket policy’.

Overall:

In considering any claim that a decision is one no reasonable registered social landlord could have taken in discharging its function of managing and allocating its social housing stock, it is necessary to look at the position overall rather than point by point (although each point needs to be considered). Moreover it is also necessary not to overlook the fact that such a decision is one taken in the discharge of that function by a body not conducting its activities for profit and one which has experience in discharging that task that this court does not have. Its discretionary decisions in the discharge of that function which do not engage any Convention right are ones to which considerable respect should be given.

It was not for the fact that the sums involved arose from a different tenancy, there was nothing that would make this an unreasonable decision by the landlord.

On relief:
Gentoo contended that the Claimants had a private law claim under Landlord and Tenant Act 1988 and/or could have applied to the Independent Housing Ombudsman, so relief should be refused. While the availability of an alternative remedy would be a reason to refuse permission, permission had been granted and the issue of alternative remedies had not been raised by Gentoo at that stage.

On the overlap of public and private law claims:
The existence of a private law claim did not invalidate a public law claim on the same facts, Boddington v the British Transport Police [1999] 2 AC 143. In fact the two should be brought in one claim to further the overriding objective. However, had the question of alternative remedy been raised when permission to make this claim was sought, permission would no doubt have been refused. Once permission had been granted, refusal of a remedy was a matter of discretion.

A remedy was refused in this case, certainly the order sought quashing the decision NSHC took in May 2007. The other dwelling involved in the exchange had been let to someone else in 2008, so the order sought that that NSHC consent to the exchange was impossible. Any further exchange application would have to be considered on its own merits. Any right to damages under s.4 Landlord and Tenant Act 1988 would have to be determined by a claim under that act, assuming there was any loss.

In the circumstances, and having regard to the fact that an alternative remedy in respect of the condition imposed was and is available to the Claimants by way of an ordinary claim, the relief sought in respect of NSHC’s decision on this claim for judicial review is refused. The Claimants’ claim for judicial review is accordingly dismissed.

In future claims concerning any decision to refuse permission to assign or exchange, or to grant such permission only on conditions, to which section 1 of the Landlord and Tenant Act 1988 applies should normally be brought by ordinary claim, even if they also include claims that the decision of the registered social landlord involved was unlawful as a matter of public law. [para 115-116]

The claim for judicial review was accordingly dismissed.

Comment
This is a complex decision on what was, if we are honest, not really a viable case by the time it reached hearing (what is the remedy, always think, what is the remedy!). It covers some complex problems, particularly in the relation of public and private law claims, and indeed the lawfulness of ‘contractual’ decisions. As far as I can see the following are the major points, may there may well be some I have missed…

1. Weaver will be taken broadly in terms of ‘housing function’.
2. Conditions on exchange will be taken broadly, save were they have no private law basis – RSLs and indeed LAs take note.
3. The simple existence of an alternative private law claim will not invalidate bringing a public law claim, but…
4. where there is a coterminous private law remedy, permission should be refused (or, under the discretion, at substantive hearing)
5. Conditions on exchange of tenancy, where they relate to the performance of the tenancy, will not usually be considered to be unreasonable, assuming they have private law validity (i.e. relate to the tenancy proposed to be exchanged).
6. Assertions of a blanket policy -and fettering of discretion – must be made an an early stage and evidenced if they are to be sustained.
7. What is the detriment, even in an unlawful and unreasonable decision?

Gimme shelter

Published by J on 12/12/2009 in Community care, FLW case note and Housing law - All. 11 Comments Tags: , , .

R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [link is to a .doc] was discussed by us (via news reports in Inside Housing and on Radio 4) below. I asked for a transcript and, as if by magic, one was provided. I stand by my original view that this is actually a bit of a damp squib and certainly doesn’t give rise to any point of general importance (at least, in terms of law. I don’t dispute the factual importance to the Claimant). The more interesting points are the ones not (fully) argued but hinted at towards the end of the judgment . Anyway…

The claimant was, and had been since July 2001, an assured tenant of sheltered accommodation which was currently provided by the defendant. When the claimant moved to her current accommodation there was a resident warden and it was common ground that the tenancy agreement obliged the defendant to provide a resident warden (although no-one could actually find the relevant tenancy agreement). It was also common ground that the agreement provided for the defendant to vary the services it provided after consultation with the claimant.

In or around April 2008, it appears that new management arrangements were put in place and, at this stage, the problems began to emerge. There was some confusion (and I put it no higher than that) as to whether or not a resident warden would be provided (in fact, the same resident warden who had been working at the site since 2001) or whether there would be a move to a ‘floating’ warden service (see [13]-[19]). When it eventually became clear that the plan was to move to a ‘floating’ warden service, the claimant and other residents protested and sought to persuade the defendant to retain the resident warden service. It was said (rather disingenuously in the view of Mumby LJ at [24]) that the existing warden wanted to retire.

At this stage, the claimant instructed solicitors who threatened to seek judicial review of the decision to retire the resident warden and not to replace her with another resident warden. It was said that the claimant had a legitimate expectation that a resident warden service would be provided. At this stage, it appears that the defendant acknowledged that some form of consultation would have to take place regarding the future of the resident warden service.

A claim for judicial review was issued on January 29, 2009, relying on the legitimate expectation argument. HHJ McKenna (sitting as a deputy High Court Judge) granted an ex parte interim injunction requiring the defendant to continue providing a resident warden until the matter could come back before him a few days later. When the case did come back before him, the Judge discharged the injunction and gave directions for an acknowledgement of service to be filed and the case immediately to be placed before a High Court Judge ([2009] EWHC 384 (Admin)). This was done and Pitchford J listed the matter for a rolled up hearing – which is what Mumby LJ was dealing with.

Between the order of Pitchford J and the judgment, the defendant commenced a process of consultation during which a number of options were offered and voted on by the residents, with the most popular option (a specialist support service) being what the defendant decided to provide for a pilot period of one year. Perhaps surprisingly, no application to amend the Grounds in light of these developments was made (at [54]).

The hearing itself does not appear to have been an entirely satisfactory one. Shortly before the hearing, the claimant had indicated that she intended to seek a Protective Costs Order but, in the end, did not pursue this. It was also clear that there was a significant amount of evidence filed, not very much of which appears to have assisted his Lordship (see his comments at [64]), and – at least as regards the evidence from the Claimant – he found to be “curious… for what it does not say…” (at [68]). In addition, as the case was argued before the Court of Appeal gave judgment in Weaver, the parties were given permission to submit written submissions on that case once the judgment was handed down.

Mumby LJ was of the view that the only matter before him was the legality of  “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). This required him to consider “the nature and content of the relevant obligations (if any) owed by the Defendant to the Claimant” and then whether “the Defendant breached any of those obligations” (at [61]).

It was clear that the only obligations between the parties were found in the tenancy agreement. The obligations (insofar as material) were to provide a Warden Service (which, in the factual context of the case, meant a resident warden) and to consult before varying the services (at [72] and [76]). Framing those obligations as “legitimate expectations” added nothing. They were contractual obligations and the entire extent of the obligation was contained in the contract (at [78]-[79]).

It was also clear that the defendant had breached those obligations. There was no doubt that it had not consulted prior to making the changes to the resident warden service (at [80]-[81]). The fact that an “equivalent service” may have been provided pending consultation was irrelevant. Whether or not sheltered housing ‘required’ a resident warden was similarly irrelevant. The contract provided for consultation and that had not been complied with (at [84]).

Thus, the defendant was in breach of its (contractual) obligations to the claimant in failing to provide a resident warden without consulting the claimant.

The problem was one of relief. Even if this was a public law claim (which his Lordship declined to decide – at [89]), a quashing order would be inappropriate and a declaration would be sufficient. A declaration to that effect would be made. Permission to move for JR was also granted (at [90]-[93]).

The claimant had indicated that she intended to advance further arguments relating to a pure private law claim and designed to knock out the power of the defendant to vary the services provided at all. Those arguments (at [95]-[96]) are much more (legally) important but, as Mumby LJ said, will need to form part of another case.

So. What we’ve got here is quite a narrow judgment on the interpretation and application of one tenancy agreement. Mumby LJ is plainly right that there had been a breach of the obligations of the tenancy, but, with the greatest respect, his analysis on whether this is a public/private law dispute is remarkable. Permission to move for Judicial Review was granted, but the court declined to hold that this is a public law dispute!? If this is a private law matter then permission is not needed and the case should be transferred to the QBD / county court. If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out. For what it’s worth, this appears to me to be an entirely private law matter, where relief should sound in either an injunction to restrain the breach of contract or damages.

A victory then, for the claimant, but perhaps not of the general importance or significance that sheltered housing campaigners might wish. Having said that, if they pursue the additional arguments that they sketched out at the end of the judgment then we might get a much more interesting result. Given the criticism which his Lordship expressed of the defendant (see [28], in particular), one imagines that they’d be advised to settle any further private law claim brought against them.

Penal Notices on Admin Court orders?

Published by NL on 15/10/2009 in FLW case note and Housing law - All. 3 Comments Tags: , , , , .

MSA v London Borough of Croydon [2009] EWHC 2474 (Admin)

A technical point on judicial review cases here, but as it is something I’ve run up against in the past, I think it is interesting.

Collins J considers whether a penal notice should be attached to an order of the Administrative Court made against a public body. This would usually be made out against a named senior officer of the authority and enable an application for committal of the officer on breach of the order. They are, on County Court orders in, for instance enforcement of an order in a disrepair case, remarkably effective in my limited experience. However, Collins J takes the view that it has not been the practice of the Administrate Court to add a penal notice to its orders – and certainly on a recent occasion where I requested one be added – which is an administrative rather than judicial act – I was met with bewildered incomprehension.

The question was whether the Administrative Court should vary its custom, there being no question that the Court had the power to make such an order. Collins J cites Lord Woolf in M v Home Office [1994] 1 A.C. 377

While contempt proceedings … against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of the contempt.

and Mundy J in R(Bempoa) v London Borough of Southwark [2002] EWHC 153 Admin:

the public interest … is better served by the public being told exactly what Southwark – what its representatives – have done to Ms Bempoa, in the public seeing just how badly its representatives have treated Ms Bempoa, than in my imposing a financial penalty which in the final analysis will punish not those responsible for Ms Bempoa’s treatment but rather those whose servants they are.

Collins J concurs. A finding of contempt on breach of an order should be sufficient, with a possible indemnity costs award and further mandatory order.

Adverse findings coupled with what would probably be an order to pay indemnity costs should suffice since it is to be expected that a public body would not deliberately flout an order of the court. Were that to happen, the contemnor could be brought before the court and, were he to threaten to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine.

So, at least against public bodies, the Admin Court will not add penal notices to interim or final orders, apparently on the basis that the embarrassment of public exposure and the court’s condemnation ought to be enough to ensure compliance.

I have to say, with the greatest respect, that I am not so sure about that in practice. From the County Court, we know that, where compliance with an order is required to be urgent and effective, a penal notice against a named senior manager can have a remarkable effect where at other times the authority might seek try to explain away its breach on an application for a finding of contempt. I suspect that some local authorities are remarkably capable of not being withered by judicial scorn, and it is not as if local papers even report Admin Court judgments very often.

Without exception

Published by J on 15/09/2009 in Allocation, FLW case note and Housing law - All. 0 Comments Tags: , , .

R (Joseph) v LB Newham [2008] EWHC 1637 (Admin)

Blanket policies are unlawful. A first year law undergraduate could tell you that. Any lawyer or public body which didn’t know that would deserve public humilliation, probably involving being slapped across the face with a fish. Even a cursory flick through a public law text book would give you ample support for this elementary proposition of public law.

It is, therefore, something of a surprise to see Stadlen J dealing with… a blanket policy.

Mr and Mrs Joseph are secure tenants of the London Borough of Newham. At some time in the distant past, he was overpaid certain monies (probably Housing Benefit) and, when the Council sought to recover the monies, Mr Joseph disputed their entitlement to repayment. Nothing further seems to have happened, in particular, the Council took no steps to actually recover the money. Other than this one dispute, Mr Joseph had “assiduously paid his current rent and [had] been a perfect… model payer of his rent” (at [4]).

However, when Mr Joseph applied for a transfer, the Council declined to allow the same to go ahead on the basis that he had not repaid the disputed overpayment. In particular, as the Council said by letter of August 3, 2007:

“… it is the policy of the Council not to make offers to applicants who owe property related debts…”

This, as his Lordship noted, appeared to be “… a blanket policy not to make any offer to an applicant who owed a property related debt…”

Mr Joseph therefore applied for permission to move for judicial review of the decision in August 2007 not to permit him to take part in a transfer.

His Lordship was rather surprised by the approach taken by the Council:

(a) it was remarkable that no steps had been taken to recover the debt, but that it had been left as a “Sword of Damocles” hanging over Mr Joseph’s head;

(b) the Council did not appear to be entirely clear about whether or not the debt was now statute barred;

(c) the Council took – for the first time and without any evidence – the point that Mr Joseph could have utilized the internal appeal process rather than seek to move for Judicial Review;

(d) this was a “lamentable state of affairs” and “very unfortunate, to say the least” (at [9]) in circumstnaces where the total debt was only £892;

(e) his Lordship expressed the hope that there could be “some kind of reconsideration of the matter at an appropriate level in the Council… so that this matter can be resolved one way or another…” (at [10])

and, in the circumstances, it was appropriate to grant permission to move for Judicial Review.

I am – as may be clear – outraged, amazed and disapointed that a public authority has a blanket policy and sincerely hope that this judgment reminds parties of the fact that such policies are unlawful. It’s a shame that Mr Joseph acted in person, since conduct like this deserves significant costs awards being made!

(with thanks to HHJ Madge and Jan Luba QC for alerting us to this case via their excellent “Housing Law” column in Legal Action)

RSLs support L&Q in Weaver appeal

Published by NL on 29/06/2009 in Housing law - All and assured-tenancy. 0 Comments Tags: , , , , , .

According to Inside Housing, not only is L&Q to seek permission to appeal the Court of Appeal decision to the Lords/Supreme Court (and no surprise there) but the G15 group of the largest RSLs in London are potentially backing them, including funding. To quote Inside Housing:

Steve Howlett, chief executive of Peabody Trust and chair of the G15, said: ‘The G15 will consider how we can support L&Q if it chooses to appeal.’

When asked if this meant contributing to a possible ‘appeal fund’, Mr Howlett replied: ‘Yes – that is something that has previously been discussed.’

Given the ludicrous position that the LSC adopted on funding the Court of Appeal case for Ms Weaver, one would hope that this bloc of RSLs would make it abundantly clear that this is a ‘broader public relevance’ case par excellence and funding will follow.

RSL meet HRA, HRA meet RSL

Published by chief on 19/06/2009 in FLW case note, Housing law - All, Possession and assured-tenancy. 22 Comments Tags: , , , , , , .

Well, well, well.  Or perhaps well, well, oh heck.  The Court of Appeal has handed down its judgment in R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 and, by a majority, L&Q have lost.

It will be remembered that Mrs Weaver was a tenant of L&Q.  L&Q sought to evict her, relying on Ground 8.  She resisted this, claiming that she had a legitimate expectation that they would use Grounds 10 or 11 first and that the eviction engaged Article 8 of the European Convention of Human Rights.  The High Court rejected any suggestion of a legitimate expectation.  Because of the way that it was advanced the Article 8 claim fell as well, but the Divisional Court went on to decide that L&Q was a hybrid public authority for the purposes of the HRA and it was amenable to judicial review.  The Divisional Court did this through an Order, so that L&Q could appeal this finding.  There is a palpable sense of irritation in the Court of Appeal with the way that this litigation has panned out; see Elias LJ at [6], Lord Collins at [87]-[91] and Rix LJ at [104]-[115].  There was also some criticism of the Divisional Court for focusing on the wrong question; see [53]-[57] and [114].

Let’s start with Elias LJ’s lead judgment, then Lord Collin’s concurring judgment, before considering Rix LJ’s dissent.

Social Housing

Elias LJ first outlined the role of RSLs in social housing.  In brief:

  • It is Government policy to provide social housing [8].
  • RSLs were regulated by the Housing Corporation [9].
  • RSLs are subject to detailed housing management guidance, which is approved by the Secretary of State [10].
  • Ss 8-10 of the Housing Act 1996 impose further regulation on RSLs [11].
  • RSLs are subsidised by public funds through Housing Corpn grants [12].
  • They have an important role in assisting LAs to carry out their statutory housing policies; this is not simply through choice, but through legislation [13].
  • Many LA properties are being transferred to RSLs [14].
  • Certain statutory powers are bestowed on RSLs, eg in relation to anti-social behaviour [16].

He then went on to some identifying features of L&Q, such as its charitable status, the origins of some of its housing stock, and the source of some of its funding.

Human Rights Act

The crucial battleground is s. 6 of the HRA.  The relevant subsections are:

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
…
(3) In this section “public authority” includes—
…
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
…
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

Elias LJ then moved on at [30]-[40] to the existing case law on the HRA: Aston Cantlow v Wallbank [2003] UKHL 37 and YL v Birmingham City Council [2007] UKHL 27.  He also noted Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48.  At [41] Elias LJ concluded his journey through the authorities:

I would draw these tentative propositions from this analysis.  First, the source of the power will be a relevant factor in determining whether the act in question is in the nature of a private act or not.  Second, that will not be decisive, however, since the nature of the activities in issue in the proceedings is also important.  This leads on to the third and related proposition, which is that the character of an act is likely to take its colour from the character of the function of which it forms part.

Elias LJ characterised the essential question as “whether the act of terminating the tenancy is a private act”, but this must be done by considering the “context in which the act occurs; the act cannot be considered in isolation” [66].  This, and the third of Elias LJ’s propositions above must be right.

At [68]-[72] Elias LJ finds that L&Q’s function of allocating and managing housing is of a public nature.  There is significant reliance on public funding; L&Q operates in very close harmony with local government, although it does not directly take its place; the provision of subsidised housing, as opposed to the provision of housing itself, is a function which can properly be described as governmental; L&Q acts in the public interest and has charitable objectives; and it is subject to intrusive regulation on allocation and management, not just regulation designed to ensure transparency or proper standards of performance.

This still leaves the central question of whether the termination, involving the exercise of a contractual power, is solely a private act.  At [73] Elias LJ acknowledges that there are observations in YL and Aston Cantlow that would appear to suggest it was.  However, at [76] he says:

In my judgment, the act of termination is so bound up with the provision of social housing that once the latter is seen, in the context of this particular body, as the exercise of a public function, then acts which are necessarily involved in the regulation of the function must also be public acts.  The grant of a tenancy and its subsequent termination are part and parcel of determining who should be allowed to take advantage of this public benefit.  This is not an act which is purely incidental or supplementary to the principal function, such as contracting out the cleaning of the windows of the Trust’s properties. That could readily be seen as a private function of a kind carried on by both public and private bodies.  No doubt the termination of such a contract would be a private act (unless the body were a core public authority.)

At [80] he moves on to consider whether HRA protection should extend to all L&Q tenants in social housing, or only those in properties acquired as a result of  state grants.  Elias LJ thinks that it should be the former: “The effect of the grant is not merely to assist the Trust (and other RSLs similarly placed) in being able to provide low cost housing to the tenants in the  properties acquired by the grant; it necessarily has a wider impact, and bears upon its ability to provide social housing generally.”  However, the HRA will not extend to those tenants who are not in social housing, but are paying market rents [81]-[82].  Elias LJ says that this is not the equivalent of the possible unattractive consequences of YL; “it merely mirrors the current distinction between those housed in local authority accommodation, who do have human rights protection with respect to evictions, and those housed in the private sector who do not”.

Elias LJ holds, as the Divisional Court did, that this all means that L&Q is subject to JR, as L&Q did not seek to argue otherwise.

Finally, and crucially, he points out that this judgment does not mean that every RSL will be in the same position as L&Q:

For example, a potentially important difference is that apparently some RSLs have not received any public subsidy at all, and arguably – and I put it no higher than that – their position could be different. ([84])

Support

Lord Collins broadly agrees with Elias LJ.  He points out that the added protection may not be worth all that much to tenants in the light of Kay.  At [100] Lord Collins goes further than Elias LJ and says that “It is not easy to envisage circumstances where an act could be of a public nature where it is not done in pursuance … of public functions”.

Dissent

Where it all gets really interesting is Rix LJ’s dissenting view.  At [116] he turns to consider the effects of the jurisprudence of the European Court of Human Rights.  He records that the asked Counsel what the Strasbourg court had said about non-governmental providers of social housing, but was told that there were no relevant cases.

Rix LJ goes on to consider R v Servite Houses ex p Goldsmith (2001) 33 HLR 35 and Poplar in a bit more detail, before providing his own analysis of Aston Cantlow and YL.  He then noted (at [146]) that in R (Ahmad) v Newham [2009] UKHL 12 Baroness Hale emphasised that the provision of housing is not a government function.

At [147] he then concludes that he did not consider L&Q’s “decision to terminate Mrs Weaver’s tenancy by seeking possession from the court on mandatory ground 8 justified by her non-payment of rent is properly to be categorised as the exercise of a function of a public nature rather than a private act arising out of contract.”  Rix LJ relied on ten factors:

  1. Strasbourg jurisprudence did not support the contrary conclusion [148].
  2. He can find no support in Servite, Aston Cantlow, Poplar or YL [149].
  3. Arguments in the instant case had been inappropriately influenced by the structure of the dispute in YL.  There had been too much focus on s.6(3)(b) and not enough on s.6(5) [150].
  4. He is distinctly unhappy about viewing “management and allocation” as an all-embracing public function, that includes termination – “the acceptance that management of social housing is essentially a single integrated function of a public nature is most unlikely to be correct” [151].
  5. It does not follow that termination is automatically a public function simply because allocation is [152].
  6. There is nothing special about the regulation that covers social housing; large parts of commercial life are covered by regulation [154].
  7. There is nothing about the nature of L&Q, or the typical RSL, to suggest that the everyday administration of tenancy agreements is a function of a public nature.  L&Q is a charity, with independent corporate status, an independent board, and owned by private shareholders.  Indeed, ”the world of charity is essentially private” [155].
  8. The main sources of capital finances are private lenders and house sales [156].  While public subsidy is an important factor in the overall assessment, such matters are relative.  Public finance is an element in the equation, but Rix LJ would be sceptical about allowing it to play a dominant role in the assessment [157].
  9. In YL, Lord Neuberger had said that the competing views about policy made it a neutral factor.  Rix LJ would add to Lord Neuberger’s policy arguments for not viewing a function as one of a public nature a further argument; namely that the experience and efficiency of the private sector may be to the public benefit [158].
  10. Public welfare concerns for those in need of social housing can be addressed in a variety of ways; it is unnecessary to artificially classify private contractual decisions as being of a public nature to address these public welfare concerns [159].

Rix LJ takes issue with the Divisional Court’s declaration for not being clear that it is L&Q’s social housing that is at issue [151].  To the extent that L&Q has some non-social housing then this is a fair criticism, but it seems clear that the reference in the declaration should be taken to be a reference to the management and allocation of social housing stock.  It is not clear that the existence of market rent properties owned by L&Q was even put to the Divisional Court.  If it wasn’t then the word “social” would have been superfluous anyway.  Rix LJ suggests later on in the same paragraph that some 36% of L&Q’s properties are outside of the sphere of social housing, but it seems to me that this conclusion does not necessarily follow from the facts.  Just because in a given year some 64% of L&Q’s new lettings were the result of LA nominations [24] does not, for me, mean that all of the remaining 36% are necessarily not social housing.

Preliminary Comments

There is a lot to deal with here and what follows is simply my initial thoughts, so all comments welcome.

It’s probably clear that I prefer the reasoning of the majority, but I still think that there is a lot of value in Rix LJ’s dissenting judgment.  I suspect that his could be an important view as this debate rolls on.

As was suggested in the write-up of the original judgment this case still leaves room for individual RSLs to argue that they are in some way distinct from L&Q and don’t therefore quite cross the threshold to be considered as carrying out public functions.  That will presumably be argued a lot in the ensuring JR and HRA claims against RSLs.

Elias LJ’s conclusion at [80] that this should cover all of L&Q’s social tenants has to be right.  To hold otherwise would draw an unnatural, and difficult to identify, distinction.

There is, understandably, a lot of reliance on YL.  That’s as it should be.  Just because I think that YL was wrongly decided, doesn’t mean that precedent should be abandoned.  What surprises me is that there is no mention of the fact that the Health and Social Care Act 2008 has reversed the result of YL.  Clearly s. 145 of that Act does not change the test in respect of s. 6 HRA; that work appears to be on the back-burner for the time being, although a consultation is still rumoured before the end of the year.  But what, at least in my opinion, s. 145 does do is demonstrate that the executive and the legislature have shown that the result that the House of Lords came to in applying the facts of YL to the test was wrong.  Public policy dictates that providing accommodation, together with care, in a care home is a function of a public nature.  Legislation now explicitly says that because the courts failed to realise it.

I’ve said above that I agree with Elias LJ at [41] and [66], but to the extent that Elias LJ and Lord Collins differ I prefer Lord Collins’ view – see [100].

I’m also not sure about Rix LJ’s point on charitable status in [155].   I merely pose as a thought whether the presence of the Charity Commission as a regulator should influence this.  I’m not sure of the answer, but the Charity Commission was not considered in YL or Heather, other than in a fleeting reference in Heather as to whether the proceedings required their permission.

Lying beneath all of this is still seems to be the same arguments of public policy that have exercised the courts when considering s. 6 right from the start.  That perhaps is a debate for another day.

Anyway, I would imagine that this will be making an appearance in the new Supreme Court before long – doesn’t the Guildhall look nice with the boards taken down?

Weaver v L&Q Newsflash

Published by NL on 18/06/2009 in Housing law - All, Possession and assured-tenancy. 0 Comments Tags: , , , , , , .

R(Weaver) v London & Quadrant [2009] EWCA Civ 587  is out (link to doc of the judgment thanks to Garden Court)

This was the Court of Appeal hearing of L&Q’s appeal of the High Court finding that it was a public authority in its housing function, subject to judicial review and the HRA.

Result – L&Q lost. They are indeed a public authority in their housing function.

But there is a lot in the detail – our full report to come.

So… House of Lords anyone?

[Edit. OK, one the one hand, the NL team are fighting over who gets to write up the detailed post, and on the other, we're struggling with who has time to do it soonest. Maybe Friday evening, maybe Saturday, but it is coming, we promise.]

Not interesting enough

Published by NL on 28/05/2009 in FLW case note, Homeless and Housing law - All. 0 Comments Tags: , , , .

McKenzie, R (on the application of) v London Borough of Waltham Forest [2009] EWHC 1097 (Admin) was a Judicial Review initially brought on grounds that the local authority refused to provide the claimant with temporary accommodation following her notification by the hostel she was living in that she would not be able to remain once her baby was born. In fact she was served notice to quit for three months after her due date. The hostel accomodation meant sharing a bathroom with another, male, resident.

The claimant applied to the LA as homeless and was told she was not homeless. She then brought judicial review proceedings on the basis that it was never reasonable, except in exceptional circumstances, for a pregnant woman in her third trimester to continue to occupy accommodation where any of the facilities were shared with a male who was not a member of her family, so she was homeless under s.175(3).

After issue but before hearing, the claimant had been housed by the LA, at about the time of the birth of her baby. The claim was therefore academic for the claimant, but she wished to pursue the claim on principle, for guidance, on the basis that

it is in the public interest to obtain the court’s guidance as to how local authorities should approach homeless applications by pregnant women by inviting the court to answer seven questions and to make nine declarations. At the core of the application is the contention that it is never reasonable (except in exceptional circumstances) for a pregnant woman in her third trimester (or even before) to continue to occupy accommodation where any of the facilities (bathroom, lavatory or kitchen) are shared with persons of the male sex who are not members of her family, with the result that she satisfies the requirement for homelessness in section 175(3) and the section 188(1) duty to provide interim accommodation is triggered, even though she as yet has no baby.

The Court found that Claimant must establish that two conditions are satisfied, the first being that a large number of similar cases exist or are anticipated and the second that her claim involves the resolution of a discrete issue which does not require detailed consideration of the facts, R (ex parte Zoolife International Ltd. v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) applied.

In this case, the Claimant had adduced no evidence on the first condition, merely asserting that a large number of similar cases existed.

On the second condition, the issues would either be fact sensitive or, as put by the claimant, require the Court to substitute its view for the words of s.175.

The Court therefore declined to decide the academic points raised.

There is a stern lesson there for anyone who casually thinks their JR application has merit in itself, regardless of merit to the client. If claiming broader point of public interest, you will need significant evidence on the scope of that interest, and put the questions to be determined very, very carefully.