A further warning on the nature and extent of disclosure of material facts comes  in R (On the application of Konodyba) v Royal Borough of Kensington and Chelsea [2011] EWHC 2653 (Admin [Not on Bailii]. The case also involves the jurisdiction for an application for temporary accommodation pending appeal to the Court of Appeal, which, it turns out, is not at all straightfoward, and whether a fresh application can be made while a previous one is under appeal.

We have met Dr Konodyba before, sacking her legal team at the hearing of a second appeal on her negative homeless decision for making a potential successful argument, against her instructions. That appeal was dismissed.

Dr K made a further application as homeless, refused on the same grounds. That also went to a County Court appeal in May 2011, when the appeal was dismissed. Dr K’s solicitors served notice of application to appeal to the Court of Appeal on the Council, but this application was still pending while a transcript was obtained.

Meanwhile, Dr K indicated to the Council that she wished to make a further application as homeless, as the A8 accession period for Polish nationals had ended on 30 April 2011. RBKC refused, saying that she could only have one application live at any one time and her previous one was ongoing with the application to the Court of Appeal. RKBC stuck to that position and did in fact refuse a a further application in July.

On 9 August, Dr K was evicted from her accommodation. Her son, who suffers from mental health problems, was an in patient, but Dr K was stated to have become street homeless (although no details could be provided by her counsel at this hearing as to where she was staying if anywhere).

No request for temporary accommodation was made until a pre-action protocol letter, dated 22 August, in which the claimant’s solicitors challenged the failure to accept the fresh application and the defendant’s consequent failure to provide temporary accommodation pursuant to section 188(1) of the 1996 Act as well as the defendant’s failure to consider providing accommodation pending the application for permission to appeal to the Court of Appeal pursuant to section 204 (4) of the 1996 Act.

RKBC maintained its position on a fresh application and said that it could not provide accommodation pending appeal to the Court of Appeal

it was prevented from doing so by virtue of section 54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 paragraph 5, because the claimant is a national of an EEA state other than the UK, unless it would be

necessary to provide accommodation to avoid a breach of the claimant’s rights under the European Convention on Human Rights (ECHR) or the Community Treaties, see paragraph 3 of Schedule 3.

RKBC’s position on the appeal was, of course, that Dr K was not exercising treaty rights. An assessment on ECHR rights would be caried out. Dr K was provided with temporary accommodation while that assessment was done. On 16 September, RKBC decided there would be no breach of ECHR rights in not providing accommodation, one reason for this being that Dr K had alternative accommodation available to her at an address in Bishop’s Stortford, this being a private tenancy she held.  Dr K was given 4 days to leave the temporary accommodation, on the basis that this other accommodation was available.

Dr K’s solicitors sent a further pre-action protocol letter on the termination of temporary accommodation, which did not deal with the reasons given by RKBC. RKBC’s reply set their position out in detail, including question the non-disclosure of the Bishop’s Stortford tenancy. They requested notification of any JR application so that they could be represented.

The next day, Dr K’s solicitors applied for JR and for interim relief in the form of the provision of accommodation for Dr K and her son pending determination of the application for permission to appeal. The interim relief was granted on the papers. No notice was given to RKBC.

RKBC applied the following day to discharge the injunction. This was the hearing of that application.

RKBC argued that:

There was material non-disclosure because the application for interim relief did not draw the Judge’s attention to the tenancy at Bishop’s Stortford. RKBC produced a tenancy agreement in the name of Eleanor Novi dated 31 October 2010. There had been possession proceedings for non-payment of rent with a possession order in July 2011. A warrant was issued and a application to suspend the warrant made. A hearing on 7 September 2011, attended by the tenant’s solicitor and landlord, was adjourned to 23 September. At that hearing, the tenant did not attend, but no date was yet in place for execution of the warrant. The landlord had confirmed that Eleanor Novi was the same person as the one in Dr K’s passport photo.

Against this, Dr K’s solicitor had filed a witness statement, stating that at the time of RKBC’s letter of 16 September, his instructions were that the Bishop’s Stortford property was not accommodation available to Dr K and her son and that his instructions remained the same. There was the likely enforcement of the warrant in addition, making the position unclear.

RKBC’s second ground was that

by virtue of section 204 A of the 1996 Act, enforcement of the power to provide accommodation pending appeal against a review on a homelessness decision lies exclusively with the County Court and the High Court has no jurisdiction in the matter.

And lastly that applying the proper test, no injunction should be made.

The High Court held:

There was no dispute over the law on injunctive relief in such cases:

applications for interim relief against a local housing authority by a claimant who seeks an order that he or she be provided with temporary accommodation, although none of the relevant authorities were drawn to the attention of Flow J. The claimant must show at least a “strong prima facie case” and the balance of convenience test in American Cyanamid Company v Ethicon [1975] AC 396, does not apply, see Francis v The Royal Borough of Kensington and Chelsea [2003] EWCA Civ 443-paragraph 16.

On the jurisdiction argument, S.204(4) provides that an Authority ‘may’ provide accommodation “until the appeal (and any further appeal) is finally determined”, and s.204A provides

(1) This section applies where an applicant has the right to appeal to the County Court against a local housing authority’s decision on a review.

(2) If the applicant is dissatisfied with the decision of the authority -

(a) not to exercise their power under section 204(4) (“the section 204(4) power”) in his case;

(b) to exercise that power for a limited period ending before the final determination by the County Court of his appeal under section 204(1) (“the main appeal”), or

(c ) to cease exercising that power before that time

he may appeal to the County Court against the decision.

(3) An appeal under this section may not be brought after the final determination by the County Court of the main appeal.

The argument was that ‘final determination’ must be read alongside ‘and any further appeal’ in s.204(4), thus including any further appeal to the Court of Appeal, while the Claimant argued that the words ‘and any further appeal’ were conspicuously absent from s.204A. The Court held that there was not a strong prima facie case to support the view that the High Court gained jurisdiction once a County Court appeal had been decided and that s.204A probably encompassed accommodation pending appeal to Court of Appeal.

However, as the Claimant pointed out, this was also a claim for judicial review of the Defendant’s refusal to accept a further application and there the High Court most certainly had jurisdiction, a point which the Defendant had missed.

On the material non-disclosure, while the letters about the Bishop’s Stortford tenancy had been included in the documents to the application and referenced in the essential reading, there was no mention in the statement of facts and grounds, solely a reference to the Defendant stating that Dr K and her son ‘had other accommodation available to them’. It could hardly be a surprise if the Judge had missed the significance of this, not least because the Claimant’s solicitors had made no acknowledgment of the Bishop’s Stortford issue in correspondence, not even to the extent of saying instructions were being taken on it.

When I asked what steps the claimant’s solicitors had taken in response to the information in the defendant’s letters over an above the evidence set out in [the solicitor's] witness statement to which I have already referred, counsel told me that they took instructions from the claimant who said that the Bishop’s Stortford accommodation was not available to her. I was also told that she had been invited to attend court yesterday to: ”Put forward those matters referable to the Bishop’s Stortford property which she asserts, but for which public funding cannot be justified.” Yet the claimant did not attend court yesterday.

The Defendant had produced credible evidence as to the tenancy, but there was no evidence from the Claimant save the simple instruction that the property was not available to her.

While I fully recognise that there is a duty on a local housing authority to make inquiries when considering the discharge of its functions under part VII of the 1966 Act, in the face of the information which the defendant provided before the proceedings began, in my judgment it was incumbent on the claimant and her solicitors to make inquiries as to the true position relating to this property and to inform the court of it when making the application for judicial review and interim relief. That duty has been breached. Further, even yesterday the claimant was deliberately failing to disclose relevant information despite being invited to do so by her solicitors.

A witness statement had been put forward on the morning that this judgment was given, but had not been considered as being far too late.

If the full picture had been before the Judge on the ex parte application, he would not have granted the injunction, but would have listed an urgent hearing. There had been a material non-disclosure.

It was at the present court’s discretion to discharge the injunction even if the Claimant had a strong prima facie case in the proceedings. Such a discretion should be exercised with regard to all the circumstances of the case, including the degree of culpability.

Further issues about the accommodation available to DrK had come to light, including the period of supposed street homelessness in August – no application for interim relief had been made during that time. Dr K had not been residing at the temporary accommodation that was provided by RBKC in September for ‘several days at a time’, leading RKBC to ask her solicitors where she was on two occasions, with no response. Further, her son was enrolled in a 6th form college in Bishop’s Stortford from 1 November 2010.

On lack of merit, it is a very restricted jurisdiction on which the Court can interfere with the Council’s decision on provision of temporary accommodation, R v Brighton and Hove council ex parte Nacion [1999] 31 HLR 1095. Further in this case, provision of accommodation could only have  been under the ECHR, as the Council were otherwise precluded under the 2002 Act.

While the Claimant’s letters on the fresh application had raised ‘Community rights’, there was no explanation in them or the grounds of JR as to how having the main EU rights after April 2011 had improved Dr K’s position. At the present hearing, recourse was again had to the Baumbast argument raised before April 2011, but no explanation of how the position had changed since the dismissal of the County Court appeal such as would merit the fresh application. There was no strong prima facie case and the Claimant’s argument was inadequate. In view of the Bishop’ Stortford property issue, there simply was no viable human rights argument. There was also no prima facie case on the provision of temporary accommodation following the second homeless application.

Finally, on the issue of whether RKBC should have accepted the most recent application while the appeal on the previous one was still pending:

I have found this is difficult issue, which suggests that it is arguable that this defendant’s decision is based on a misconstruction of a statutory scheme. On the other hand, having regard to the matters I have pointed out, I am not persuaded that the claimant has reached the threshold of showing a strong prima facie case in this respect.

There was therefore no strong prima facie case on any ground on which interim relief would be granted. Even if there was a strong prima facie case on the failure to accept a fresh application, the duty to provide temporary accommodation under s.188(1) only arises if the Defendant had “reason to believe that an applicant may be homeless, eligible for assistance and have a priority need.”. As they had not accepted the application, this question had not been considered by RBKC, making injunctive relief premature. That said:

there will cases where, if there is a strong prima facie case that the authority’s decision not to accept an application is unlawful, it can be said with some confidence that there is a strong prima facie case that the duty to accommodate would arise such that on an application for interim relief an injunction would be granted.

In the light of the Bishop’s Stortford tenancy, that was not the case here, although it was possible that Dr K may be threatened with homelessness.

Even if this where wrong, this was a case were interim relief would be discharged on grounds of material non-disclosure, for the reasons given above.

In my judgment the application for interim relief and the claimant’s opposition to the defendant’s application to discharge the injunction granted by Flow J is a gross abuse of the court’s discretion to order interim relief and the order dated 22 September is discharged forthwith.

The application for permission was not determined at this hearing, the Defendant had not yet filed grounds of defence. However, there was a question whether the claim in relation to the failure to take a fresh application was made promptly.

Costs order reserved for the Defendant to consider applying for a waste costs order.

Comment

Oh dear.

Oh dear, oh dear, oh dear. I sometimes have nightmares like this.

The procedural point on temporary accommodation pending final determination of the appeal is interesting and potentially difficult. What if TA is terminated after an unsuccessful s.204 appeal but while an application for permission to appeal to the Court of Appeal is underway. Can it be the case that a fresh application must be made to the County Court? This was not a final decision on the issue, just a decision on the prima facie strength of the argument, but the Admin Court clearly leaned towards s.204A excluding it from jurisdiction. What of the Court of Appeal itself – would the route be an urgent application for interim accommodation pending permission to be made to the Court of Appeal itself? Or should the County Court be asked to make an order continuing TA on condition that an application for permission to appeal be made within a fixed period?

On the issue of a fresh application while a previous one is under appeal, the Admin Court again does not reach a final conclusion, but I think that the tentative conclusion that RBKC was misreading the statutory provisions in insisting it could not take the fresh application is probably right.

But the headline element of this case has to be the requirement to make sure that the full situation is clear in the statement of facts and grounds of any ex-parte application, certainly for interim relief. It isn’t enough for details to be hidden in the documents, even if flagged as essential reading – they must be set out and addressed up front.

This is not a housing case, but it is an important case on costs in settled claims for judicial review, which is a major issue for many housing practitioners.

The Court of Appeal considered five joined appeals in immigration judicial review claims all on the issue of costs following consent orders. In each case, no order as to costs was made. The issue was whether a) the Judges had correctly interpreted R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258 and b) whether the test in Boxall should be modified in the light of current circumstances and the recommendations in Jackson LJ’s review of civil litigation costs.

In each of the cases, the Judicial Review claims had settled following the Secretary of State granting all, or substantially, the relief sought after issue of the claim.

The principles set out in Boxall are:

(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
(ii) it will ordinarily be irrelevant that the Claimant is legally aided;
(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.
(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage

The Court of Appeal notes that in subsequent cases applying the Boxall guidelines, the expression “plain and obvious” has been applied in relation to (iv) and (v). In each of the cases under appeal, the Judge below found that, for varying reasons, it was not ‘plain and obvious’ that the claimants would have won, at least until a relevant judgment of the Supreme Court. (The costs decisions in other similar cases had gone the other way, with the judges finding it was plain and obvious that the claimant would have won).

The appellants, supported by the PLP as intervener, argued that Boxall was decided before the effect of the CPR became clear and before the Judicial Review Pre-Action Protocol was introduced. The Protocol makes a number of mentions of sanctions in costs for parties, including defendants, failing to follow protocol steps in time.

Further, the Jackson Report (at 4.13) recommended that:

in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant’s costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order

And the level of legal aid funding was a significant factor:

The problem is exacerbated, Miss Lieven [for PLP] submitted, by the very considerable difference between the level of publicly funded costs, still paid at 1994 rates, and costs inter partes. The order that there shall be no order as to costs has a chilling effect on the ability of lawyers to act, both for publicly funded and privately paying litigants. This, it was submitted, has significant constitutional implications.

The lead judgment of Pill LJ is worth quoting in its conclusions at length, not least because some of the arguments (about workload and resources) advanced by UKBA are frequently heard from other public bodies:

59. What is not acceptable is a state of mind in which the issues are not addressed by a defendant once an adequately formulated letter of claim is received by the defendant. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant. Inherent in that approach, is the need for a defendant to follow the Practice Direction (Pre-Action Conduct) or any relevant Pre-Action Protocol, an aspect of the conduct of the parties specifically identified in CPR r.44.3(5). The procedure is not inflexible; an extension of time may be sought, if supported by reasons.

60. Notwithstanding the heavy workload of UKBA, and the constraints upon its resources, there can be no special rule for government departments in this respect. Orders for costs, legitimately made, will of course add to the financial burden on the Agency. That cannot be a reason for depriving other parties, including publicly funded parties, of costs to which they are entitled. It may be, and it is not of course for the court to direct departmental procedures, that resources applied at an earlier stage will conserve resources overall and in the long term.

61. In the case of publicly funded parties, it is not a good reason to decline to make an order for costs against a defendant that those acting for the publicly funded claimant will obtain some remuneration even if no order for costs is made against the defendant. Moreover, a culture in which an order that there be no order as to costs in a case involving a public body as defendant, because a costs order would only transfer funds from one public body to another is in my judgment no longer acceptable.

62. Equally, it is not an acceptable reason to make an order for costs in favour of a claimant, and neither the appellants nor the interested parties have suggested it is, that publicly funded lawyers are, or are claimed to be, inadequately remunerated. Whether to make an order for costs depends on the merits of the particular application. However, both the warning in Scott against too ready resort to making no order as to costs, and the indication by Lord Hope in JFS, cited at paragraph 28, in relation to publicly funded parties, demonstrate the need for analysis of the particular circumstances.

63. I have serious misgivings about UKBA’s claim to avoid costs when a claim is settled for “purely pragmatic reasons”. My reservations are increased by the claim, on the facts of the present cases, that the right to work was granted for pragmatic reasons. I am unimpressed by suggestions made in the present cases that permission to work was granted for reasons other than that the law required permission to work to be granted. There may be cases in which relief may be granted for reasons entirely unconnected with the claim made. Given the Secretary of State’s duty to act fairly as between applicants, and the duty to apply rules and discretions fairly, a clearly expressed reason would be required in such cases. The expression “purely pragmatic” covers a multitude of possibilities. A clear explanation is required, and can expect to be analysed, so that the expression is not used as a device for avoiding an order for costs that ought to be made.

64. In addition to those general statements, what needs to be underlined is the starting point in the CPR that a successful claimant is entitled to his costs and the now recognised importance of complying with Pre-Action Protocols. These are intended to prevent litigation and facilitate and encourage parties to settle proceedings, including judicial review proceedings, if at all possible. That should be the stage at which the concessions contemplated in Boxall principle (vi) are normally made. It would be a distortion of the procedure for awarding costs if a defendant who has not complied with a Pre-Action Protocol can invoke Boxall principle (vi) in his favour when making a concession which should have been made at an earlier stage. If concessions are due, public authorities should not require the incentive contemplated by principle (vi) to make them.

65. When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol. I regard that approach as consistent with the recommendation in paragraph 4.13 of the Jackson Report.

66. I do not accede to the request to tack on words to the Boxall guidelines to meet the appellants’ submissions. Such a formula would carry the danger of being used mechanistically when what is required is an analysis of the circumstances of the particular case, applying the principles now stated. These include the warning in Scott that a judge should not be tempted too readily to adopt a fall back position.

And on disposing of a claim for judicial review where a settlement has been reached, Pill LJ adds

69. Where relief is granted by consent, CPR r.54.18 provides a procedure whereby the court may decide the claim for judicial review without a hearing. That procedure should be followed wherever possible. It requires the filing of a document signed by all the parties “setting out the terms of the proposed agreed order together with a short statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on” (CPR PD 54A, para.17.1).

Comment
This is a valuable judgment and one which undoes many of the formulaic gestures to Boxall reasoning made by Defendants in offering to settle on the basis of no order as to costs.

While the Boxall guidelines were not expressly amended, the Court of Appeal’s clear view is that it would be for the Defendant to justify why there should be a departure from the usual rule of costs to the winner where relief had been granted (or achieved). Compliance with the pre-action protocol should be a significant consideration in assessing whether the Defendant has met such a burden of justification, with the suggestion that a failure to meet protocol requirements by the Defendant would make it very difficult indeed to justify why there should be no order on settlement where relief has been substantially granted.

Given that public bodies’ failure to respond to protocol letters in time or at all is very familiar to housing claimants lawyers, and that claims are very often settled after issue or after permission with a form of relief being given, this case should be of significance to claimant and defendant lawyers on the issue of costs of a settled claim. It also provides encouragement for costs to be taken to written submissions, where the Defendant tries to insist on no order as to costs. The assertion that there are ‘pragmatic reasons’ alone for settlement should be referred to paragraph 63 of this judgment – “The expression “purely pragmatic” covers a multitude of possibilities. A clear explanation is required, and can expect to be analysed, so that the expression is not used as a device for avoiding an order for costs that ought to be made.”

An interim order to provide accommodation pending judicial review was obtained and unsuccessfully challenged by Westminster. Westminster eventually carried out a Children Act assessment and the applicant’s step-son found to be a child in need, who should not be separated from the applicant. Eventually private accommodation was offered. The JR was then academic at a pre-permission stage, leaving only the issue of costs, which Westminster didn’t concede.

At the hearing, Westminster argued Boxall (R (Boxall) v Mayor and Burgesses of Waltham Forest LBC (2001) 4 C.C.L. Rep. 258) – the correct order was no order as to costs. Westminster’s failure to carry out an assessment was an oversight and, in any event, much of the pre-action protocol stage had focussed on the homeless case. In that aspect Westminster were entitled to discharge duty under S.213A Housing Act 1996 by referring the applicant to Hackney Council.

The High Court held that:

• Westminster had made an error of law in not assessing the Claimant’s stepson’s needs under the Children Act 1989, Westminster had a duty to undertake an assessment of a child attending one of its schools even if it had housed them in temporary accommodation outside the borough.
• Westminster had continued to defend what it classed as an “oversight,”
• The Claimant had referred to a duty to assess in the pre-action protocol and Westminster had spoken to the Claimant’s stepson’s school and professed to be aware of the relevant caselaw.

It was therefore appropriate to make an order for costs even though the claim had become academic at the pre-permission stage.

The MoJ’s proposed reforms on civil costs do not include implementing qualified one way costs shifting in Judicial Review, (a decision itself the subject of JR pre-action protocol steps by the Public Law Project – on which more shortly).  Pursuit of costs in settled or newly academic JRs therefore remains an important issue. The Defendant’s standard position is often that the decision at issue was simply a mistake, later corrected – or a settlement is offered on the basis of ‘taking a commercial view’ with no order as to costs as part of the offer, but it can be worth taking the costs issue further, as here.

We would be very keen to see a transcript of the judgment in this case, if one exists. This note is wholly based on another note of the case from Hardwicke Chambers.

The Government’s response to the consultation on reforms to civil litigation and costs (the Jackson reforms) has now been released.

The full response can be downloaded here [pdf] and the associated impact assessment is here [pdf]

The press release is here.

In short, the Government intends to go ahead with its original proposals. Expect legislation soonish.

From the perspective of housing practitioners, some things are not at all clear. Others are.

While a 10% uplift in general damages is envisaged, in part to replace the success fees payable by the Defendant, this is referred to at some points as being solely damages in tort (personal injury), which would not apply to disrepair, which is contractual. However, at other times, the reference is to general damages or non-monetary losses per se. Whether the 10% uplift in damages will apply to disrepair will have to be clarified in the forthcoming legislation.

However, disrepair CFA success fees will not be recoverable from the Defendant. Given the level of disrepair damages, this makes success fees difficult in such cases, even though, unlike personal injury, the success fees are only capped to 100% of costs. The same issues apply to the proposals to make contingency fee agreements lawful.

ATE insurance premiums will not be recoverable from the Defendant. There was an emerging market in disrepair ATE insurance, but that protection for the claimant client will not be available under the proposals, unless paid for by the client.

Further, qualified one way costs shifting, where the Claimant is largely not liable for Defendant’s costs is not initially to be introduced except for PI/Clinical negligence matters, so not to be brought in for disrepair cases or indeed judicial review, at least at first. There will still be Claimant liability for the Defendant’s costs on a failed or lost claim.

There is a change to Part 36 rules proposed, making Defendants liable for a further 10% of the value of a claim in damages if they failed to accept a reasonable offer by the Claimant, even if the Claimant did not beat that offer at trial. There may be a further or different sanction for non-monetary claims. This will change calculations on both sides on Part 36 offers, but would seem to favour the Claimant, making it harder for the Defendant to undercut a reasonable offer.

In view of the Government’s intention to take many disrepair claims out of legal aid scope, these proposals make the situation complicated. The proposals seem to me to completely ignore the particular circumstances of housing matters, where the subject matter of claims is generally an injunction for works, not purely damages (general or special). The basis for the calculations and balancing, such as it is, are wholly predicated on damages only claims.

And then, just when we’d worked our way through that, yet a new consultation arrives. Yes, reform of County Court litigation. Closing date 30 June 2011. Highlights among the proposals – raising the small claims limit from £5,000 to £15,000; compulsory mediation for small claims; and compulsory ‘mediation awareness’ for higher value claims.  It has been a long day, and it isn’t often this happens, but words fail me…

Whenever a battle weary group of housing lawyers gets together, conversation inevitably turns (after the routine complaints about the less congenial DJs) to the thorny issue of which is the most important housing law case of all. While bizarre to the outsider, this ritual actually takes the form of a Mornington Crescent-style game, in which the aim is to get to Street v Mountford before somebody plays Puhlhofer and ruins the whole thing. The route to get there varies, although it will normally take in Awua, Pereira, Runa Begum, Din v Wandsworth, Monk, Kay (x2), Doherty, Quick v Taff Ely, Pye (x2), Uratemp, and so on. Someone will go seriously old skool and play Cumming v Danson or Say v Smith, the quiet one in the corner will drone on about how everyone else always forgets AG Securities, there is always an argument about Bruton, but (and if there is a point to this introduction, this is it) there is now a new giant on the scene, one judgment to rule them all and in its 9 strong constitution bind them – the Supreme Court decision in Pinnock (you might like to check out our note on the Court of Appeal’s decision in this case too).

This is clearly an important decision and not a brief one either, so we have decided to roll out the tried and tested co-authored approach that we took with Kay v UK. Comments from various contributors are interspersed throughout the text and there is a group discussion at the end.

Ping pong

There is no need to go through more than a whistle-stop tour of the history here. For more detail you could do little better than head over to A royale quarterpounder, our post on Kay v UK, and you may also want to consider Nic Madge’s take, not least as I’ve borrowed the inspiration for this subheading from him. In fact, you do that now and I’ll wait here for you.

Back? Good. Let’s recap:

Art.8 of the ECHR provides that everyone has the right to respect for their home and that there should be no interference with that right unless it is in accordance with the law and necessary in a democratic society.

In Kay v Lambeth [2006] 2 AC 465 the majority of the House of Lords established that, where a landlord has an otherwise unqualified right to possession, there are only two scenarios where the court should not proceed to summary judgment and an order for possession, which have since become known as gateways (a) and (b) (Lord Hope’s now famous [110]).

Gateway (a) is where it is seriously arguable that the law that enables the court to make the possession order is incompatible with art.8

Gateway (b) is where it is seriously arguable that the decision of a public authority to recover possession is an improper exercise of its powers at common law on the ground that it is a decision that no reasonable person would consider justifiable.

The minority in Kay would, in a nutshell, have made gateway (b) somewhat wider (Lord Bingham’s not quite so famous [39]).

The ECHR in McCann v UK (see our notes here and here) preferred Lord Bingham’s approach. At [50] the Court rolled out the first iteration of a requirement that has since been the subject of much debate:

The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Art.8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end.

The action then shifted back to the House of Lords, who in Doherty v Birmingham CC [2009] 1 AC 367 (our note is here) reaffirmed the majority approach in Kay, although they crowbarred a bit more into gateway (b). The net result of Doherty perhaps wasn’t so much that the gateway was widened as that it was given a nice a lick of paint and some new hinges that no longer squeaked or banged about in a stiff breeze.

Undeterred and emboldened by the power of repetition (and the “cut and paste” function in word) the ECHR then proceeded to say the same things (sometimes with reasonableness thrown in for good measure and/or confusion) in Cosic v Croatia, Zehentner v Austria and Paulic v Croatia. However, when faced with the case of Kay v UK, while the ECHR unsurprisingly said the same things, it made clear that it was confining its assessment to the domestic position pre-Doherty, leaving it unclear whether the House of Lords had done enough to gateway (b) in Doherty to render it Convention compliant. While oral argument in Pinnock was concluded before the ECHR gave judgment in Kay, the Supreme Court has had the benefit of written submissions, just as happened with McCann/Doherty.

Demoted tenancies

A bit more history. To understand demoted tenancies (DTs), it is first necessary to consider introductory tenancies (ITs). ITs were brought in by the Housing Act 1996, as a means of tackling anti-social behaviour. They operated as a form of probationary tenancy – indeed the 1995 consultation paper produced by the DoE was entitled ‘Anti-social Behaviour in Council Estates: A consultation paper on probationary tenancies’. Part 5 of the HA 1996 was designed to “enable authorities to deal more effectively with any tendency on the part of new tenants to engage in anti-social behaviour which emerged during the first 12 months of the tenancy … the nub of the scheme is that (provided the authority followed the correct procedures as laid down in the Housing Act 1996 for terminating an introductory tenancy), under section 127(2) of the Housing Act 1996, the county court is obliged to make a possession order.” (Waller LJ at [11]-[12] in R (McLellan) v Bracknell Forest BC [2002] QB 1129). If the procedure (including an internal review) has been carried out an authority’s decision can only be challenged by way of judicial review, see Manchester CC v Cochrane [1999] 1 WLR 809. Cochrane predated the coming into force of the Human Rights Act 1998, but in McLellan the CA held that the IT scheme was compatible with art.6 of the Convention.

ITs were considered such a success (even though research suggested that 90% of evictions of introductory tenants were due to rent arrears, rather than anti-social behaviour) that the next government decided to bring in something similar to deal with those who already had secure tenancies. And so it came to pass that the Anti-social Behaviour Act 2003 introduced a new Chapter 1A to Part 5 of the 1996 Act. The DT regime is clearly modelled on ITs. It is obvious from the wording and the Minister said as much during the Bill’s passage through Parliament (Standing Ctte G, Col 242).

The scheme works as follows. Where a County Court is satisfied that:

1. a secure tenant, a visitor or someone residing in their home, has engaged in or threatened to engage in conduct caught by ss.153A or 153B of the HA 1996; and
2. it is reasonable to make a demotion order,

the CC can then make an order which brings the secure tenancy to an end and replaces it with a DT (HA 1985, s.82A). A DT lasts for a year and then reverts to a secure tenancy unless during that year the landlord serves a notice of proceedings for possession (there are other ways, but they are not relevant here – see HA 1996, s.143A(2)(b)). Service of such a notice has the effect of continuing the DT until either the notice is withdrawn; proceedings are determined in favour of the tenant; or the landlord doesn’t bring proceedings within six months.

The notice must comply with six requirements (s.143E). It must:

1. state that a possession order is being sought;
2. give reasons;
3. specify the date after which proceedings may be begun;
4. that date must not be earlier than the date on which an NTQ would be effective;
5. inform the tenant that they can request a review and how long they have to make that request; and
6. inform the tenant that if they need help or advice they can go a CAB, solicitor, etc.

If a review is requested within 14 days the landlord has to carry out a review (s.143F). The review procedure is governed by the Demoted Tenancies (Review of Decisions) (England) Regulations 2004, SI 2004/1769. When the review is completed the landlord must tell the tenant of the outcome and the reasons for it. If the review upholds the decision and possession proceedings are commenced the court “must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed” (s.143D(2)).

Readers may note that the statute does not set any limits on the types of reasons that may be found in s.143E notices or s.143F review decisions. Various amendments were put forward at Committee stage that would have meant that before the court could make a possession order it would have to be satisfied that both the notice and review procedures had been followed AND that it was either reasonable to make a possession order, or that further ss.153A & 153B conduct, or just generally anti-social behaviour had occurred since the demotion order. These were resisted by the then government on the basis that they would be watering down the effects of DTs and “would effectively require a double possession hearing”.

The Court of Appeal considered DTs in R (Gilboy) v Liverpool CC [2009] QB 699 (our note here) and held that they were indistinguishable from ITs. The scheme was therefore compatible with art.6 and the appropriate route for challenging an authority’s decision to terminate a DT was judicial review.

Facts

Cleveland Pinnock was given a tenancy by Manchester in 1978. This became a secure tenancy when the Housing Act 1980 came into force.

He and his partner, Christine Walker, had five sons – Clive, Trevor, Devon, Orreon & Orraine.

In March 2005 Manchester commenced possession proceedings against him, seeking a demotion order as an alternative. Mr Recorder Scott Donovan gave judgment on that claim on 8 June 2007. He found that serious acts of anti-social behaviour had been committed in and around the property by members of the family, but none had been committed by Mr Pinnock himself. Between 1998 and 2007 32 specific acts were identified. Amongst these were a racial Public Order Act offence, driving while disqualified, and a serious case of blackmail. Several of the offences committed were in breach of various ASBOs. It is perhaps somewhat surprising that the recorder did not think that a possession order was reasonable, but he did order that the tenancy be demoted, commencing on the same day.

One of the terms of the new demoted tenancy prohibited Mr Pinnock and those visiting or residing with him from causing a nuisance or annoyance to any other person.

On 6 June 2008 Manchester served a notice under s.143E of the HA 1996 seeking to terminate the demoted tenancy. The notice relied on two specific allegations: firstly that Clive had caused a nuisance and annoyance by resisting arrest and obstructing a PC; secondly, that Devon had caused a nuisance and annoyance by causing death by dangerous driving and driving while uninsured.

Mr Pinnock requested a review of Manchester’s decision, as was his right. At the review, the panel heard evidence about those two incidents and was also told that Orreon had been convicted of burglary after the notice was served. Before the panel Mr Pinnock and Ms Walker said that their sons were no longer living with them and she sought to blame the police for the fatal car crash that Devon had been involved in.

The review panel upheld the decision to terminate the tenancy. The panel said that it had to be satisfied that he had breached the conditions of his tenancy. The panel decided that the property was the family home and that the sons returned frequently. The panel took into account Orreon’s burglary conviction and Ms Walker’s attempt to blame the police for the car crash, which the panel felt clearly demonstrated that both parents had failed to address their responsibilities as parents. The panel also felt that both parents appeared to refuse to accept the seriousness of their sons’ behaviour and that they chose to behave in an anti-social manner, rather than being the victims of others.

Manchester then issued a claim for possession. HHJ Holman held that he could review the panel’s decision, but only on conventional JR grounds. He held that the incidents involving Clive and Devon did not amount to breaches of the tenancy and if they were the only matters in issue Manchester’s decision would have been Wednesbury unreasonable. However, HHJ Holman went on to conclude that the panel could take Orreon’s conviction into account and made a possession order against Mr Pinnock.

Mr Pinnock appealed to the Court of Appeal and our note describes the outcome of that decision (in which the Secretary of State for Communities and Local Government intervened), but the salient points for now are:

1. The time for the CC to consider proportionality was when it was considering making a demotion order;
2. That procedure was art.6 compliant;
3. There is no difference between the statutory requirement of reasonableness and the ECHR requirement of proportionality;
4. A landlord’s decision to seek possession of a demoted tenant’s property would satisfy art.8(2), unless the decision was one which no reasonable person could consider justifiable;
5. If the statutory provisions were incompatible with the EHRC, a possession order would still be lawful because of HRA, s.6(2)(b);
6. The jurisdiction of the CC to review the panel’s decision was limited to checking that the procedure had been followed;
7. As there was no suggestion that the procedure had not been followed a possession order had to be made;
8. The review panel’s decision would be susceptible to JR in the High Court;
9. The applicable grounds of JR in the High Ct are the standard domestic JR grounds, except that the extended rationality (Doherty) test applies;
10. A review panel is entitled to take into account events that postdated the s.143E notice and the reasons relied upon do not have to be breaches of the tenancy agreement.

A panel of nine of the Justices of the Supreme Court was convened, the Equalities and Human Rights Commission was given permission to intervene, and the stage was set…

The Supreme Court’s Judgment

The Supreme Court’s unanimous judgment was given by Lord Neuberger MR, who was brought back into the fold for this case due to his property expertise. I doubt very much whether all nine were in complete agreement, but think that they have taken the pragmatic view that there has already been too many conflicting judgments on this issue over the years and that the time has come for some certainty.

The Court identified four issues at [21]:

1. Does art.8, as interpreted by the ECtHR, require a domestic court to consider proportionality and resolve factual disputes before making a possession order of a person’s home in a claim brought by a public authority?
2. If the answer to 1. is ‘yes’, what does this mean in practice for claims for possession of residential premises?
3. Can the DT regime be interpreted compatibly with the requirements of art.8?
4. On the facts of this case what should be done with Mr Pinnock?

Requirements of the ECHR

The Supreme Court considered the Strasbourg jurisprudence and was satisfied that the approach of the ECtHR was unambiguous and consistent, and that four propositions had become well established (at [45]):

1. Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end;
2. A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i.e. one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues; [J - au revoir s.21 and Ground 8]
3. Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with;
4. If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.

[J - although they say "local authority" at [45] in relation to proposition 1, they presumably mean “local authority or other public authority landlord – see also [21], which leaves some fascinating arguments about whether PRPSH can now properly use Ground 8 and s.21. Chief – I agree, that much must be right from [21], but I have tried to use just “local authority” where that is all the Court has used. As whether a PRPSH is a public authority remains, in theory, a question to be resolved in each case this raises the prospect of a discrepancy in the treatment of occupier, at least until the private sector issue is resolved]

The Court went on to say at [45] that:

Although it cannot be described as a point of principle, it seems that the EurCtHR has also franked the view that it will only be in exceptional cases that article 8 proportionality would even arguably give a right to continued possession where the applicant has no right under domestic law to remain.

Was it therefore appropriate for the Supreme Court to depart from the decisions of the House of Lords in Qazi, Kay and Doherty? The Court noted that the decisions of the ECtHR in Cosic, Zehentner, Paulic and Kay were all given after the HL gave judgment in Doherty. The Court reminded itself that the obligation under s.2 of the HRA is only to take into account decisions of the Strasbourg court, it is not therefore bound to follow every decision of the ECtHR. See our post on R v Horncastle [2010] UKSC 14 for an earlier discussion of how this might relate to the art.8 issue. The Supreme Court felt, at [48], that where

there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.

And went on to say at [49]:

In the present case there is no question of the jurisprudence of the EurCtHR failing to take into account some principle or cutting across our domestic substantive or procedural law in some fundamental way. That is clear from the minority opinions in Harrow v Qazi [2004] 1 AC 983 and Kay v Lambeth [2006] 2 AC 465, and also from the fact that our domestic law was already moving in the direction of the European jurisprudence in Doherty v Birmingham [2009] 1 AC 367. Even before the decision in Kay v UK (App no 37341/06), we would, in any event, have been of the opinion that this Court should now accept and apply the minority view of the House of Lords in those cases. In the light of Kay, that is clearly the right conclusion. Therefore, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a person’s home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. [emphasis added by J - this is the kicker, isn't it - this is what all law requires, not just where the claimant is a local authority]

Concerned about the possible implications for tenancies in the private rented sector, the Supreme Court was quick to attempt to confine its conclusions ([50]):

We emphasise that this conclusion relates to possession proceedings brought by local authorities. As we pointed out at para 4 above, nothing which we say is intended to bear on cases where the person seeking the order for possession is a private landowner. Conflicting views have been expressed both domestically and in Strasbourg on that situation. In Harrow v Qazi [2004] 1 AC 983 the views of Lord Bingham and Lord Steyn, at paras 23 and 26, can be contrasted with the view of Lord Hope, at para 52. In Belchikova v Russia (App no 2408/06, 25 March 2010), the application was held to be inadmissible, but the EurCtHR (First Section) seems to have considered that article 8 was relevant, even when the person seeking possession was a private sector landowner. Presumably, this was on the basis that the court making the order was itself a public authority. But it is not clear whether the point was in contention. In the rather older admissibility decision of Di Palma v United Kingdom (App no 11949/86) (1986) 10 EHRR 149, 155-156, the Commission seems to have taken a different view, but the point was only very briefly discussed. No doubt, in such cases article 1 of the First Protocol to the Convention will have a part to play, but it is preferable for this Court to express no view on the issue until it arises and has to be determined. [J - which reads, to me, like an invitation to get a private landlord s.21/ground 8 into the High Ct as soon as possible for a gateway A argument. I've got a few transferred in previously but all have settled]

(We have not yet covered Belchikova, but it has been earmarked for an annual roundup of Strasbourg decisions.)

[Chief: I agree that if this is right then it has to cover the private sector as well, eventually. But I am probably alone here in doubting whether it is even right. Is there really the necessary clear and constant jurisprudence? The magic formula doesn't appear until McCann. It has never been approved by the GC. There is the seemingly random addition of "reasonableness". And have they worked out what "in principle" means yet? Does it mean "as a matter of principle, in every case"? If so, why not say that? Does it mean "as a principle, subject to exceptions"? If so, what are the exceptions? Or is it simply that it's "in principle" because it is up to the occupier to raise issues of proportionality? Furthermore, how can it be said that this does not cut across our domestic substantive or procedural law in some fundamental way? It clearly does, that's why we're here. And not just the UK's law, but that of several other European countries too.]

The Supreme Court then moved on to consider the proposition that it will only be in very exceptional cases that it will be appropriate to consider a proportionality defence. This was most recently approved by the CA in Salford v Mullen at [65] & [67] and the SC acknowledged that the ECtHR appeared to have approved the proposition. However the SC went a different way (at [51]-[52]):

… Nevertheless, it seems to us to be both unsafe and unhelpful to invoke exceptionality as a guide. It is unhelpful because, as Lady Hale pointed out in argument, exceptionality is an outcome and not a guide. It is unsafe because, as Lord Walker observed in Doherty v Birmingham [2009] 1 AC 367, para 122, there may be more cases than the EurCtHR or Lord Bingham supposed where article 8 could reasonably be invoked by a residential tenant.

We would prefer to express the position slightly differently. The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority’s ownership rights.  It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers. [emphasis added by J - again, as I noted in our newsflash, how does this apply to PRPSH? The allocation and management of LA housing is entirely statutory, via s.21, HA 1985 and Pts 6 and 7, HA 1996. PRPSH have no such statutory strictures].

At [53] the Court agreed with a submission made on behalf of the Secretary of State that a local authority should not be routinely required to plead and prove the justification for its claim for possession. However, the Court noted that in certain cases where a local authority thought that it had particularly strong or unusual reasons, in which case they would need to be pleaded and supported by evidence. Then, at [54], the Supreme Court threw a few more crumbs of comfort in the direction of local authorities:

Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right – indeed the obligation – of a local authority to decide who should occupy its residential property. … Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way. [J - crumbs of comfort? This is a recipe for more litigation. What are the factors that point the other way? See also [57], where their Lordships seem to think that the “good sense and experience” of county court judges is the answer. Have they met the county court bench?!]

Consequences for possession claims in general

There would be no need to change anything in relation to secure tenancies – there is no difference in practice between HA 1985 reasonableness and art.8 proportionality. The Court was reluctant to get too far into the issues related to the IT and homelessness regimes, which will be considered in detail later this month. Despite this, the Court felt able to make six general points ([60]-[64]):

1. It is only when someone’s “home” is at stake that art.8 comes into play;
2. Generally, art.8 only needed to be considered when raised by the occupier;
3. When an art.8 point is raised the court should initially consider it summarily, and if the court is satisfied that, as will no doubt often be the case, even if the facts were established it would still be proportionate to make a possession order then it should dismiss the art.8 point;
4. If domestic law justifies an outright order for possession, art.8 may justify granting an extended period of possession, suspending possession conditionally, or even refusing an order altogether.
5. Some statutory and procedural provisions may need to be revisited, such as HA 1980, s.89 or parts of CPR 55, but the instant case was not the appropriate one to resolve them;
6. Proportionality is more likely to be a relevant consideration where there are issues relating to vulnerability due to mental illness, physical or learning disabilities, poor health or frailty, and that the local authority may have to explain why they are not securing alternative accommodation.

[Chief - so point 1 may be the get out for ITs and homelessness accommodation. Buckley v UK tells us that "''Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of art 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. Isn't this an invitation to LAs to move homeless families around in temporary accommodation to prevent any property becoming a home? Point 2 surely means every case where the occupier is represented, speaks to the duty adviser beforehand, just happens to have some idea of the law, or even gets thrown a bone by the judge. So pretty much every case where the occupier turns up. Points 4 & 5 - how is this going to work? I go back to my point about whether this cuts across domestic law in some fundamental way. And point 6 - most people getting an IT or temporary homelessness accommodation will be vulnerable in some way, although I accept that the handful in DTs might not be.]

Demoted tenancies

As mentioned above, a county court has to determine any facts that are in dispute and decide that it is reasonable to make a demotion order before it makes such an order. Lord Neuberger, for a brief moment slipping into the singular, said at [66] that, in relation to the making of the demotion order:

I therefore find it impossible to conceive of circumstances where the requirements of article 8 would not be satisfied by the plain words of the relevant statutory provisions.

The real problem was at the final stage, where a county court was being asked to make an order for possession. The SC acknowledged at [68] that if s.143D(2) were to be interpreted using the traditional techniques of statutory interpretation then it would be hard to see how the county court had power to determine facts or consider proportionality. However, the availability of s.3 of the HRA meant that the Supreme Court had to consider whether it was possible to read the DT scheme in a way that did give this power to the county courts. Specifically, as identified at [75], would this be amending the statute or simply interpreting it. The Supreme Court held, at [77], that the word “lawfully” should be read into s.143D(2):

In our view, if the procedure laid down in section 143E or 143F has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under section 143D(2). After all, the tenant’s argument in such circumstances would be within the scope of the ambit of section 143D(2), namely that “the procedure under sections 143E and 143F has not been [lawfully] followed”, since lawfulness must be an inherent requirement of the procedure. It must equally be open to the court to consider whether the procedure has been lawfully followed, having regard to the defendant’s article 8 Convention rights and section 6 of the HRA.

At [78] the Court felt that this approach was supported by s.7(1)(b) of the HRA, which provides that a person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by s.6(1) may rely on the ECHR rights concerned in any legal proceedings.

That approach disposed of the argument advanced on behalf of Manchester that the appropriate course was in fact for art.8 defences to go off to the High Court ([80]).

It also gave effect to Wandsworth v Winder [1985] AC 461, as it had been applied in Kay and Doherty ([81]). Manchester v Cochrane disapproved.

[Chief - I'm very uneasy about this. I think the SC has arrogated to itself a legislative function far more extensive than is intended by s.3. It runs contrary to the intention of Parliament when enacting the DT scheme, which was done in reliance on McLellan and therefore on Cochrane.]

A further argument had been advanced by Manchester, relying on s.17(1)(a) of the Crime and Disorder Act 1998. This imposes a duty on local authorities to exercise their various functions with due regard to the likely effect on crime and disorder in their area, and the need to do all that they reasonably can to prevent crime and disorder in their area. It was suggested that this could lead to a conflict between a local authority’s s.17 duty and an occupier’s art.8 rights. The Supreme Court disposed of this argument in short order, at [91]-[92]. Firstly, s.17 begins “without prejudice to any other obligation imposed on it”. Secondly, the duty in s.17 was simply to have “due regard”.

Despite the fact that (as I understand it) there was considerable argument advanced during the oral hearing on the effects of s.6(2)(b) of the HRA, its application did not fall for decision as the Court had ruled that the DT scheme could be interpreted compatibly with art.8. Accordingly (at [96]),

The absence of any real debate on the point makes the present case an unsuitable vehicle for any wide-ranging discussion of section 6(2). Nevertheless, we think it right to confirm that, in our view, the subsection has no application to the decision of a local authority as to whether to bring or continue possession proceedings against demoted tenants.

So, the conclusion of all of this?

104. We are, accordingly, of the view that a County Court judge who is invited to make an order for possession against a demoted tenant pursuant to section 143D(2) can consider whether it is proportionate to make the order sought, and can investigate and determine any issues of fact relevant for the purpose of that exercise. It follows that the demoted tenancy regime in the 1996 Act is compatible with article 8.

The Supreme Court went on to make two further points. Firstly, at [106], the Court noted that despite the absence of any statutory fetter on the type of grounds that could be relied upon when seeking possession in a DT case, in most cases what actually happened in practice was that the landlord normally relied upon repetitions of the type of incidents which led to the demotion order. The Court said that the nature of the grounds that could be relied upon may be limited in that way, as a matter of law, but that the point did not need to be dealt with in this case and had not been the subject of any argument.

[Chief - really?]

Secondly, at [107], the Supreme Court revisited its earlier unease about the proposition that art.8 will only come to the aid of an occupier in highly exceptional circumstances. While this held good for possession claims generally, DT cases were different, for two reasons. The first reason was that the county court will already have decided that it was reasonable/proportionate to make a demotion order. The Strasbourg court had stated in Zehentner that proceedings had to be viewed as a whole.

This highlights the fact that, while article 8 is still engaged at the second, possession order, stage, it would be difficult for the tenant successfully to invoke it, given that its requirements had been satisfied at the first, demotion order, stage.

The second reason was that the tenant would have been given the local authority’s reasons for going for possession and will have had the opportunity to have a challenge to the authority’s decision considered by a review panel. The Court noted that this applied to ITs too.

[Chief - but the first reason doesn't apply to ITs. Will a s.193 discharge letter be enough in cases of homelessness to satisfy the second reason?]

Application to Mr Pinnock’s case

Mr Pinnock had not had the proportionality of the possession order against him considered. This left two options – remit to the county court or for the Supreme Court to take that decision for itself. Mindful of the length of time that this case had been going on for and deciding that they could make the decision without any further evidence, the SC decided to take that proportionality decision for itself. The SC defined the framework in which such a decision ought to be taken.

Firstly (and as noted above), nothing in the DT scheme restricted the kinds of reasons that a local authority could rely on. Except for the possible limitation hinted at in [106] the SC thought that the only restrictions should be by reference to domestic rationality and Convention proportionality. Specifically, reasons do not need to be breaches of the tenancy: [115].

Secondly, as a tenant could rely on circumstances that had occurred after the Notice was served upon them, there was no reason why a landlord could not do the same: [116].

Thirdly, a Notice that contains a bad reason is not necessarily invalidated, unless the bad reason is such as to infect the good faith of the landlord: [117].

In this case the only issues of fact that were in dispute were whether Devon was living at the property when he caused death by dangerous driving and whether the incident where Clive resisted arrested caused nuisance locally. The Court decided that whether Devon lived at the property or not, it did not assist Mr Pinnock ([128]-[129]). Even if Devon and the other children did not, and do not, live there, they had continued to visit the property and commit crimes in the area. If they did live there, then Mr Pinnock would have been dishonest and Manchester’s case would be even stronger. In relation to Clive resisting arrest, it did not matter whether this was a breach of the tenancy agreement – it was plainly relevant to Manchester’s housing management functions and was conduct capable of causing nuisance or annoyance to any person.

Therefore, after considering the incidents relied upon, the Supreme Court concluded:

The fact that some (or even all) of the grounds justifying the rationality and proportionality of the Council’s decision to seek possession may not have involved any breach of the tenancy agreement does not give rise to a problem. There is no requirement in the 1996 Act that they should, and, as already mentioned, there is no warrant for implying any such requirement into the statute. The fact that Mr Pinnock may not be responsible for the incidents is not of great significance: the order for possession was not sought or made to punish him. The fact that there may be other remedies to deal with the children is also of little force: rather than seeking ASBOs or ASBIs to keep them out of the vicinity, it is scarcely irrational or disproportionate to decide to remove their parents, whom they undoubtedly visit, even if (which is an unresolved issue) they do not live with them.

An order for possession against Mr Pinnock was proportionate and would be upheld.

Implications & the future

I may be accused of hyperbole in my introduction to this decision. After all, there really aren’t that many demoted tenancies in operation, as the Supreme Court noted at [58]. But the Supreme Court is soon going to be faced with the appeals from Salford v Mullen (our note, with a far better executed Mornington Crescent theme). Although the Supreme Court won’t actually be hearing the appeal in Salford v Mullen in November, it will be hearing the appeals in the cases of Hounslow v Powell,  Leeds v Hall and Birmingham v Frisby. The first of those relates to a homelessness non-secure tenancy, while the latter two concern ITs. We all know that there are plenty of people occupying accommodation in those two categories. Given the SC’s decision it can be said that that proportionality is going to have to be imported into those types of cases unless the property in question is not the occupier’s home. This is an argument that LAs may be able to make some headway with in relation to some occupiers, but I suspect not very many.

[NL: I've kept my interpolations until the end, both because I have little to add to to Chief's excellent account (and J's emphases and comments) and because what comments I have are more general.

First, I think the implications for Introductory Tenancies are clear, even if Hall and Frisby are yet to be decided. See para 82 onwards on Manchester City Council v Cochrane - itself an Introductory Tenancy case and also para 13, noting the regimes are virtually identical.

Second, I don't think it is necessarily hyperbolic to consider this a very important decision beyond the realm of demoted tenancies. This judgment clearly establishes the principle of potential assessment of proportionality of all possession cases (by a public body landlord, on which more below), where there is no comparable art 8 compliant assessment set out in law -reasonableness being the key example for secure tenancies. As J observes, this surely extends to s.21 and Ground 8 claims by PRPSHs/RSLs, as well as all summary proceedings;

Dave adds: might be useful in homelessness restricted cases as well where a PRS landlord seeks possession.

Third, the meaning and extent of an assessment of proportionality are going to be argued out in the County Courts (and no doubt thence the appeal courts) but there are some things we can identify straight away that mark a significant difference to JR principles, extended via Doherty or not. The balancing exercise is for the court to carry out. It is not reviewing whether the LA/PRPSH was acting reasonably in the balancing exercise that it, supposedly, carried out. The court must be satisfied that the decision is proportionate. So this is not a review exercise - see para 35, 38 45(a) etc.. While there may be well a general assumption that the LA would be pursuing a legitimate end (para 53), the court's observations on 'exceptionality' are a counterbalance, and very useful in practice, where public law defences were already being met in the County Court with the question as to why the tenant's circumstances made this an 'exceptional case'.

Dave says: are we then accepting that this decision applies equally to PRPSH?  I think that must be right personally ...

NL - Yes, para 3.

J - unless and until Weaver is overturned by the Supreme Court

Lastly, what happens, if anything, about private tenancies is not surprisingly a question for another day. I can't see how the Supreme Court could even begin to approach that in this judgment and on this case. But there are clear indications (para 50 & 63), that this is potentially on the agenda.

I have to say I was surprised by this judgment. I didn't expect the wholesale new broom approach. I also happen to think that the way s.143 is read to be Art 8 compliant is, to put it mildly, a bit of stretch. I was frankly anticipating a declaration. But it is practically a good thing.]

[J – as ever, NL speaks sense, as entirely befitting his status as a housing law ‘nut’. I confess to a slight nagging doubt about this decision. The endorsement of a right to a proportionality hearing is clearly good, but, even though they Supreme Court has moved away from the “highly exceptional” test but they’re still pretty dubious about the circumstances in which Art 8 will provide a real defence. We’ve now got to educate (D)DJ/HHJ on proportionality. Should be fun.  Given that the demoted tenancy procedure has been found to be lawful, I can see how it could be adapted and co-opted so as to (possibly) make the service of NTQ/s.21 Art 8 proof. The real winners here are, I think, those who want to challenge s.21/Ground 8, whether used by PRPSH or private landlords).

Francis Davey writes – in the long run, and unless the Supreme Court or the ECHR (or both) have a change of heart, I think this may be at least as significant a decision for private sector tenants (of course the argument is stronger, but more complex, where there is an argument that the landlord is a public body). On this point I fully endorse what J has said.

This may be a way of dealing with bad faith evictions under mandatory powers, such as section 21 (for assured shortholds), Ground 8 (for assureds) and notices to quite (for non-assureds). Examples of bad faith might be a retaliatory eviction where the tenant has made a reasonable claim against the landlord or reported their unlawful behaviour; discrimination based evictions (eg the landlord discovers that the tenant has changed gender) or where the tenant has fallen out of favour with the “in” crowd in a fully mutual housing cooperative. In some of these cases it may be that a declaration of incompatibility is all that can be achieved, but in others a delay or refusal of a possession order may be possible. Let’s hope.

Chief – I think Francis has identified a very important point in relation to retaliatory evictions. That must be the new battleground. I think that eviction on the basis of a gender change will already be caught by s.35 of the Equality Act, although Part 4 is riddled with exceptions, so one can never be sure.

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.

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.

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?

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.

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.