Tag Archive for 'judicial-review'

Faarah Allocation Appeal

Published
by
NL
on 12 July 2008
in Housing law
. 2 Comments

This was a judicial review against Southwark’s allocation policy, reported in this post, which Southwark, rather surprisingly, appealed.

Faarah, R (on the application of) v London Borough of Southwark [2008] EWCA Civ 807 was the result. The issue was the manner in which Southwark had translated medical priority points for transfer under the old allocation scheme into priority banding in the Choice Based Letting scheme that began in September 2005, and as a result priority dates.

Southwark appealed on three issues.

Firstly

that the judge was wrong to treat the criteria for 20 medical points under the old scheme and for inclusion in band 3 on medical grounds under the new scheme as indistinguishable in substance, and secondly, that in any event Southwark was entitled in the exercise of its discretion to adopt the administrative practice that it did as a transitional step in moving from the old scheme to the new scheme.

The Court of Appeal said that the Judge was right to treat the criterea as identical. Southwark had adopted an unpublished administrative scheme that did not accord with their published criterea. Southwark’s discretion did not extend to allocating housing other than by its published scheme.

Second, on the dating of priority, Southwark argued that there was no requirement for priority to pre-date the new scheme and in any case, the applicant only achieved band 2 priority through the multiple needs provision of the new scheme. The applicant pointed out that Southwark gave may people priority dates well before the introduction of the new scheme. Consistency in application should backdate the applicant’s priority to the date of her award of 20 points medical priority. The Order from the judicial review was unclear on this point, quashing the original priority date given to the applicant but not specifying a new one.

The Court of Appeal could not find a clear rationale for awarding priority dates, other than the obvious one of starting from Sept 2005 for everyone who predated the new scheme on the list. Southwark did not argue for this, as it does not accord with their actual practice. The Court said that any mechanism for awarding priority dates should be published and that Southwark could (impliedly should) regularise their position in that way for the future.

Thirdly, Southwark argued delay by the applicant from 2005 to 2007 in bringing the claim meant that she was not entitled to relief. The Court of Appeal found no reason to reverse the Judicial Review on this point. Southwark had been and continued to act unlawfully.

On relief granted, Southwark argued the delaration made was ‘not conducive to good administration’. The Court of Appeal was not impressed:

When pressed to explain his reasoning, he said that the making of a formal declaration would place a greater onus on the council to correct the practice than if the relief were limited to an order specifically relating to Ms Faarah. I found that a surprising and rather worrying submission. If it is true, it provides all the more reason why it is in the interests of good public administration that the judge’s declaration should stand.

An argument that Southwark should be allowed to continue an unlawful practice because changing it is inconvenient? Marvellous.

It appears that the Court of Appeal shared my surprise that Southwark had appealed this on all issues. Lord Justice Sedley agrees with the main judgment and adds at 53-54:

I share his concern at the sustained endeavour of the local authority, through Mr Broatch, to treat this appeal more as a damage limitation exercise than as an endeavour to get their policy and practice within the law. Both Southwark and other authorities with similar schemes have a duty to make sure that their schemes are compliant with their statutory obligations and are not subverted by inconsistent administrative practices.

The other rider is that all the members of this court would wish to express their appreciation of the skilful professional service which Ms Faarah has had from the Southwark Law Centre. As the history set out by Lord Justice Toulson shows, the law centre, by careful and well-informed correspondence, was able to locate and challenge the precise error of public administration which this appeal has confirmed. It is of importance to the administration of justice, as well as to many individuals, that there should continue to be law centres like Southwark’s which are able to offer professional help of high calibre to the neediest people.

Following the gloomy conclusions of my previous post, and the vulnerability of law centres at the moment, that gets a round of applause.

Comments on Weaver

Published
by
NL
on 29 June 2008
in Housing law
. 3 Comments

Belated, I know, but this is the first chance I have had to really look at the judgment in Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).

Ground 8 and Legitimate Expectation

First the substantive ground of challenge - that the use of Ground 8 mandatory possession claims by L&Q Housing Trust amounted to breach of the claimant’s legitimate expectation and/or convention rights.

This was based upon LQHT’s terms and conditions, which said that they would comply with the Housing Corporations regulations and guidance. Housing Corp guidance says that ‘before using Ground 8, associations should first pursue all other reasonable alternatives to recover the debt’. The Claimant argued that reasonable alternatives included agreement on paying arrears, money judgment, or discretionary possession claim on grounds 11 or 12. Seeking to avoid Postponed Possession Orders was, in effect, saying that the judicial discretion would not be properly exercised. LQHT’s practice, it was claimed, was solely to use Ground 8.

L&Q denied that they had a policy to only use Ground 8. That use of Ground 8 resulted in a high level of payment of arrears prior to hearing and was thus an effective tool. L&Q denied that the contractual term involved could give rise to legitimate expectation - it was a statement of intent or target duty. It was not specific enough to give rise to an expectation - the specific guidance was not prescriptive and the language vague. In any case, there was no evidence of reliance.

L&Q said they had pursued all reasonable alternatives in this case, and use of grounds 11 or 12 prior to the use of ground 8 could not be considered to be a required reasonable alternative.

On the facts of this case, where there was a history of substantial and repeated defaults on agreements, the Court found that L&Q was entitled not to consider using ground 11 or 12.

Moreover, the Court found that the wording of the guidance was too broad to allow solely the claimant’s interpretation and, as the passage in the terms and conditions was not contended to be contractually binding, it could not be treated as having the qualities that would justify enforcing it as a legitimate expectation, particularly as there was no evidence that the Claimant was even aware of the term.

The claim failed.

Comment

I think L&Q were, to some extent fortunate in the challenge they faced. Legitimate expectation was always going to be difficult to establish on the back of Housing Corp guidance. I was rather surprised to see it as the sole ground of challenge. I suspect that L&Q also managed to obfuscate their actual practice somewhat in evidence. Certainly what was put forward in evidence differs from what tenant-side advisors encounter. But there we are.

There may be enough in the specifics of this case to distinguish it in future, as LQHT’s behaviour in regard to this specific tenant clealry shaped the Court’s attitude to the overall challenge - there had been repeated attempts to recover arrears and come to agreements, as well as repeated NSPs, sufficient to bolster LQHT’s claim that this was a weapon of last resort.

There may also be further evidence on L&Q’s use of ground 8 that may support challenges on other bases. I don’t think that this one ends the JR and ground 8 possibilities.

Subject to Judicial Review

More significant in the broader scheme of things, of course, is that L&Q were found to be a Public Authority amenable to judicial review in its housing function.

L&Q’s argument was that they were not a public authority. While certain functions were certainly public, such as its statutory function in relation to anti-social behaviour orders, or specific statutory delegations by local housing authorities, the main function of managing and allocating its own housing stock was not public.

Public funding grants were received but this was not determinative of public function. Provision of housing is not a public function like provision of education or social care. Moreover, the relationship between Claimant and LQHT was contractual, which was at the core of R v Servite Houses, ex p Goldsmith [2001] LGR 55, as approved in YL v Birmingham City Council [2007] 3 WLR 112. RSLs have private law status and being subject to detailed regulation does not point to them being public authorities, as found in YL v Birmingham.

LQHT argued that even if allocation was a public function, the termination of tenancy was not. it was a management decision governed by contract. Since the decision in Peabody Housing Association Ltd v Green (1978) 38 P&CR 644, only Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 had suggested that termination of a tenancy by an RSL could be a public function, and Poplar Housing turned very much on its specific facts.

The Claimant argued that Peabody was prior to the explainsion of Judicial Review and Servite was decided prior to the introduction of the HRA. The Claimant applied YL v Birmingham and argued that LQHT was carrying out a overnmental function, the management and allocation of stste-subsidised housing (cf Novoseletskiy v Ukraine (2006) 46 EHRR 53). LQHT received substantial capital grants from public funds. RSLs were established under the Housing Act 1996 in order to deliver affordable housing and funded by Government to that purpose. Management of housing, including the setting of rents, is subject to the Housing Corp guidance.

The Claimant also pointed out the LQHT irself allocates and manages public housing resources in the public interest, albeit not strictly by delegation of functions, but Strasbourg case law on delegation of powers (e.g. Wos v Poland) was relevant. LQHT was entrusted with public funds and required to use them in the public interest. Unlike Southern Cross in YL, it is non-profit-making and not acting out of private, commercial motivations.

Deciding to grant or terminate tenancies are therefore decisions concerning the allocation of public housing resources.

The Claimant also argued that providing housing to priority applicants under the LA allocation scheme was pursuant to s.8 Housing Act 1996 and a duty under s.170 HA 1996. The Court found this misconceived, a duty to co-operate under s.170 is not a statutory duty to grant a tenancy.

Likewise, the Court ignored arguments on the government accepting that RSLs were ‘bodies governed by public law’ for the purposes of EU directives on procurement. The government’s view did not determine the position and EU law was not Convention or human rights law.

The Court found that LQHT was a public authority in its housing function, citing the following reasons:

  • LQHT is different to an ordinary commercial business by the nature of its activities and the contexts in which it operates.
  • LQHT is non-profit-making charity acting for the benefit of the community, so lacks the private and commercial features that feated in YL v Birmingham.
  • LQHT operates in the social rented sector which is not merely subject to detailed regulation (pace Southern Cross in YL) but is permeated by state control and influence with a view to meeting the Government’s aims for affordable housing and in which RSLs work beside local authorities and can be said in a real sense to take their place,
  • Control and influence is exerted through the Housing Corporation. While stautory guidance is non-binding, there is clear indirect pressure on RSLs to comply. The extent of control and influence being exampled by the approach towards implementation of policy on rent setting and the general statements in the Code of Guidance.
  • Particularly important - the nature and extent of public subsidy of LQHT, in common with other RSLs. In particular, the receipt of capital grants, esepcially social housing grants under s.18 HA 1996. Very large sums are involved. That they are for particular developments, rather than block grants, makes no odds. The funds are directed towards increasing social housing stock and are one means by which the state accomplishes this. While private funding is also important and RSLs aren’t the only receipient of funds, LQHTs business as a whole is heavily subsidised by the state due to the role played in implementing policy. A clear case of “the injection of capital or subsidy into an organisation in return for undertaking a non-commercial role or activity of general public interest (YL v Birmingham at 105).”
  • Also relevant is that a ’significant’ proportion - 10% - of LHQT’s housing stock was ex-local authority following voluntary transfer. While clearly not the same as Poplar Housing, which was formed for the specific purpose of stock transfer, this still reflected the fact that RSLs are performing functions of the same type as local authorities.
  • The duty of co-operation with Local Authorities under s.170 HA 1996 means that RSLs don’t have a purely commercial relation with local authorities, but operate under a statutory framework. Over half LQHT’s new lettings were nominations from LAs.
  • That serving a notice to quit was not a statutory power but a private law right did not prevent an RSL being a public authority. If allocation is a public function, it would be wrong to separate out ‘management’ including termination as private. Allocation and management are part of a single function.

For these reasons LQHT is a public authority in the meaning of s.6(3)(b) Human Rights Act 1998.

If it is a public authority for the purposes of the HRA, then it should be equally amenable to judicial review on conventional public law grounds.

Comment

I don’t think that this list should be taken as a set of necessary conditions for public authority status. Clearly some elements were more persuasive to the Court than others. For instance - the ex-local authority housing stock point. This is clearly a different point to that made in Poplar Housing, as here it is, in effect, simply further support for the idea that RSLs are performing the same type of housing function as local authorities. So, I can’t see how much, or indeed whether, ex-local authority housing stock is in possession of an RSL being a crucial determinant for their status as public authority. The main point is surely the level of public funding/subsidy and the level of state guidance/direction involved.

It would be difficult, I suspect, for any RSL to argue that its position is so significantly different to that of LQHT as to not be a public authority. But no doubt some will try.

While the headline is susceptibility to Judicial Review, it is also worth noting that, at almost the same moment that an amendment to the Housing and Regeneration bill to make RSLs subject to the HRA failed, this judgment states clearly that, in their housing functions, RSLs are indeed subject to the HRA.

A few months ago, this might not have been a big deal, but post McCann, it may turn out to be significant. Proportionality in the mandatory possession process anyone?

I know that a number of RSLs have been quietly settling prospective JR claims, precisely to avoid a full hearing on their status as public authorities. I suspect L&Q are not very popular at the moment with their fellow RSLs. There will no doubt be an appeal of that finding, which also opens the prospect of a cross appeal by the Claimant. Interesting times.

L&Q v Weaver flash

Published
by
NL
on 24 June 2008
in Housing law
. 8 Comments

Judgment just out

Weaver (R) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin)

Full notes tomorrow, but the headline is:

L&Q is a public authority in its housing function for the purposes of Judicial Review.

Use of ground 8 possession claims is not a breach of legitimate expectation.

Interim Accommodation and Judicial Review

Published
by
NL
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.

Cardiff homeless - tactical lessons?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Allocation Judicial Review 2

Published
by
NL
on 30 March 2008
in Housing law
. 2 Comments

This is the second of the two judicial reviews of Southwark’s allocation scheme and arguably the more significant of the two. (The first case is in the previous post.)

R(Faarah) v Southwark LBC [2008] EWHC 529 (Admin) concerned Southwark’s managment of the transition from a points based scheme to a CBL scheme and specifically the award of priority dates in the new Bands.

The applicant had 20 points under a medical assessment pior to the introduction of the CBL scheme in September 2005. Southwark’s points based scheme had four categories - 10, 20, 30 points and ‘urgent medical need’. The CBL has four bands, A to D (no priority). The applicant is now in Band 2 for cumulative medical and overcrowding needs. The dispute was over the priority date - which gives priority over later entrants to a Band in bidding and is therefore of considerable importance.

The applicant was (after some intervening notifications) given Band 3 in August 2006, with a priority date of 19 September 2005, the date of the introduction of the CBL scheme.

However, Southwark had not set the priority date for all applicants transfered to the new scheme to be the date of the introduction of the scheme. many had priority dates from their application under the prior scheme.

The published scheme said that registration date within the Band was the priority date. The applicant challenged on the basis that this was not the policy actually being operated.

Southwark maintained that there had been a transitional scheme in which those with 21 or more points under the old scheme were placed in category A and given a priority date of the date under the old scheme they were awarded 21 or more points. Those with 10-20 points were in category B and given no medical priority under the new scheme, N was for those with 10 points or less.

There was a broader challenge on the rationality of Southwark’s CBL bidding scheme, on the basis that by permitting only one bid in a cycle, housing was allocated according to random choices of the applicants, not greatest need.

HHJ Mackie QC held that:

  1. There was no difference in the wording defining the requirements for 20 points under the old scheme and Band 3 under the CBL scheme. The Defendant was not entitled to treat people differently at different times when the criterea were the same.
  2. The scheme gave some applicants priority from the date they qualified for a band even before September 2005, but failed to give those who reached Band 3 priority back to the date upon which they qualified for that band (20 medical points). This was not published and was not in accordance with the published scheme and was therefore in breach of s167(8) Housing Act 1996.
  3. The broader challenge on the rationality of the bidding scheme was without merit. All systems for allocating resources throw up anomalies.

Of the two cases, Faarah is likely to have the most impact, as the unlawful practice potentially extends to a large number of people with 20 points medical priority under the old scheme. It also highlights the need for local authorities to ensure that transitional provisions actually accord with published allocation criterea.

It also appears from both cases that broader challenges to the rationality or fairness of Choice Based Letting schemes are in for a very steep up-hill struggle.

Counsel for the applicant was Robert Latham, instructed by Southwark Law Centre.

Allocation Judicial Review 1

Published
by
NL
on 30 March 2008
in Housing law
. 0 Comments

I’ve been waiting to post on the outcome of two judicial reviews of Southwark’s allocation scheme for a while, hoping they would appear on BAILII. They haven’t, but Garden Court have briefly set out the cases in their 24 March bulletin. So, here is the first of two posts on these cases.

R(Yazar) v Southwark LBC [2008] EWHC 515 (Admin) concerned Southwark’s inclusion in the Choice Based Letting (CBL) Scheme of a Band 1 (highest) priority for a ‘Social Services Nomination’. The applicant had been recommended for Band 1 priority by her social worker, but housing and social services then denied that a nomination had taken place. Southwark initially denied that there was a formal process for social services nominations, then stated that there were criteria that were in addition to those given in the published allocation scheme. Southwark did not give reasons for refusing a social services nomination until immediately before the hearing of the judicial review, in the form of a witness statement.

The challenge was on three grounds:

  1. The scheme failed to identify procedures for making social services nominations and the persons by whom decisions are made;
  2. The decision not to make a nomination in the applicant’s case was unlawful in that there were no proper procedures for determining the nomination, issuing reasoned decisions or offering a right of review
  3. The scheme failed to provide a rational mechanism for ensuring that an assessed need for a ground floor property with a garden is given a head start over those with no such assessed need.

On 1. Mr Justice Simons held that the Allocation Scheme was defective in relation to the making of social services nominations. Until the clarification in evidence, the basis on which such nominations were made, and by whom, was unclear to the point of obscurity. Defendant to add a clear explanation to the published scheme.

On 2. the Court held that, although a local authority was not bound to express its reasons for not making a nomination in every case, it was bound to give its reasons if asked. However, given changes in the applicant’s circumstances, it was not necessary to quash the decision in her case.

On 3. the Court was not prepared to entertain what could be construed as a challenge to the Choice Based Letting scheme as a whole, Lambeth LBC v A. and Lindsay [2002] EWCA 1084 followed.

The rejection of the broader based challenge was a common theme in this case and the next, R(Faarah) v Southwark LBC.

Counsel for the applicant was Robert Latham, instructed by Anthony Gold Solicitors.

LSC Judicial Review Mk 2

Published
by
NL
on 31 January 2008
in Legal Aid
. 0 Comments

The Law Society is (just about) to file the second Judicial Review application of the Civil legal aid Unified Contract, this time arguing that, following the Court of Appeal judgment in the first JR, the LSC has to address the illegality of the current fixed fee scheme having been introduced under the unlawful unilateral amendment clause.

The LSC denies that the fees were introduced under the clause but has failed to adequately explain under what other provision they were introduced.

The LSC has already announced it is withdrawing the Unified Contract, apparently now suggesting a new contract in October 2008 (LSC response letter [PDF]), but if the Law Society were to win on this JR, it would really be a devastating end to the whole unified contract project.

Some areas of civil legal aid are worse hit by the fixed fees than others, with family and mental health probably worst off, but the rates do also hit housing and welfare practices pretty badly. One simply cannot do a proper homeless s.202 review on £171, at least not here in the South East.

If the Law Society win, what then? The LSC response suggests a return to the previous fee regime, pro tem. Of course, they also threaten that any payments made under the fixed fee scheme would have to be recovered as ultra vires. We shall see…

Homelessness and Ex Parte Injunctions - a warning

Published
by
NL
on 16 October 2007
in Housing law and job
. 0 Comments

Mr Justice Munby has issued a stern statement on the use and abuse of ex-parte injunction applications to the Administrative Court in R (Lawer) v Restormel Borough Council [2007] EWHC 2299 (Admin).

Covering failure to use the Pre-Action Protocol, non-disclosure of material evidence, unexplained delay and requests for unreasonable periods of notice for application for discharge (48 hours, in this case) in draft Orders, the Judgment marks the Admin Court getting distinctly annoyed at what are scathingly described as ‘prevailing professional approaches’ in both the Family and Administrative Courts.