The actual judicial review that gave rise to this hearing was an age assessment case which was conceded by the Local Authority following a second expert’s report. A consent order was agreed, but no agreement on costs. Submissions on paper resulted in a first instance order that:

‘Having considered the submissions on costs made by both parties and having regard to the principles referred to by the court in R (Boxall) v Waltham Forest LBC (2001) 4 CCLR 258 and to the caveat added by Hallett LJ in R (Scott) v Hackney LBC [2009] EWCA Civ 217 at 51 – to the effect that a judge must not be tempted too readily to adopt the default position of making no order for costs – I accept that this is the just outcome here. As has been submitted for the defendant this is not a case where the case was obvious from the outset. And in view of the dynamic development of this area of the law while the claim was live and the burdens on the defendant which are referred to in paragraph 12 of its submissions I do not consider the defendant’s conduct in the proceedings has been such as to justify an award of costs being made against it.’

The Claimant appealed, arguing that:
(i) The judge failed to address the appellant’s primary argument that costs should follow the event.
(ii) The judge misdirected himself in refusing to award costs because the outcome was not obvious from the outset.

Permission to appeal was given in light of Bahta.

I’ll turn to the specific points on this case at the end of this note, including the basis of the arguments. However, the primary interest is in what amounts to guidance set out by the Court of Appeal on costs in settled Judicial Reviews.

The Master of Rolls at paras 60 to 63, says:

60. Thus, in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant’s claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61. In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis.

62. In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument that, where the parties have settled the claimant’s substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. That I think was the approach adopted in Scott. However, where there is not a clear winner, so much would depend on the particular facts. In some such cases, it may help to consider who would have won if the matter had proceeded to trial, as, if it is tolerably clear, it may, for instance support or undermine the contention that one of the two claims was stronger than the other. Boxall appears to have been such case.

63. In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.

And Stanley Burnton LJ states at paras 75 to 77:

75. The consequence of our decision should be a greater willingness on the part of the parties to judicial review proceedings, at first instance and on appeal, to agree not only the substantive provision of the order to be made by the Court, but also the issue of costs. Settlements in which the question of costs is left to be determined by the Court at a later date are common, and perhaps too common. Parties can no longer assume that the likely order is no order as to costs, even where one party or another has conceded the whole, or substantially the whole, of the other side’s case.

76. A successful negotiation of costs issues is likely to be cost effective, saving the costs of subsequent written submissions and saving the time of the judge who is required to determine costs. It is in both parties’ interests to address the question of comprehensive settlement as early as possible.

77. Where the parties are unable to agree costs, and they are left to be determined by the Court, it is important that both the work and costs involved in preparing the parties’ submissions on costs, and the material the judge is asked to consider, are proportionate to the amount at stake. No order for costs will be the default order when the judge cannot without disproportionate expenditure of judicial time, if at all, fairly and sensibly make an order in favour of either party. This is not to say that there are not cases where the merits can be determined and no order for costs can be seen to be the appropriate order; but in such cases that order is not a default order, but an order made on the merits.

In this particular case, with quite a complex history, the Defendant had argued that
i) the respondents settled on the assumption that there would be no order for costs.
ii) There had been a change in the perceived legal position as a result of the Supreme Court’s decision in R (A) v Croydon in November 2009.
ii) There was a substantial amount of evidence and the issue was diffcult, including the change in the weight to be given to Dr Birch’s views, following the judgment in R (A) v Croydon and R (WK) v Kent County Council [2009] EWHC 939 (Admin).

This being in effect a restatement of the Boxall based arguments that had been successful at first instance.

The Court of Appeal’s view was summed up by Stanley Burton LJ as follows:

The respondents’ maintenance of their position was entirely reasonable while the law was as it was generally thought to be before the decision of the Supreme Court in R (A) v Croydon. That decision led eventually to the order His Honour Judge McMullen QC of 26 July 2010. The respondents then had to reconsider their case, if they had not already done so. The appellant’s reliance on the evidence of Dr Birch may have been ill-advised, but ultimately it was his case, based on his account of his age, that prevailed. The respondent agreed not merely to re-assess his age, but that his age was as he contended it to be: i.e., they conceded the entirety of his claim.

Costs to the Claimant.

Comment
The judgment refers to Sir Rupert Jackson’s cost review, where he states

‘The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me ….
. . . 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.’

The Judgment also highlights the increasing number of cases settled save for costs, where the courts have had to deal with written submissions on costs. This increase was clearly something of which the Court of Appeal disapproved.

The result, being an extension of Bahta but falling perhaps just a little short of the Jackson proposals, is very useful for claimants. It makes clear that the usual Defendant arguments (e.g. that settlement was a practical or commercial decision, that it had nothing to do with the merits of the claim and that it was not at all clear that the Claimant would win), will not be sufficient to result in no order as to costs. The usual principles of civil litigation costs will apply. Boxall is effectively distinguished as being a case where the Claimant had only succeeded on a lesser part of the Claim.

The Defendant’s frequent tactic offer of a settlement on the basis of no order as to costs was always difficult for the Claimant’s solicitors to resist, given the client’s interests. However, this judgment now puts any settlement negotiations on the basis that the default position is that the Claimant should have their costs and that the Defendant will have to have a very strong reason to seek to depart from that.

The same principle should apply to s.204 appeals, as they are based on judicial review principles. There seems to be no good argument why a s.204 appeal should not have the ‘ordinary civil litigation principles’ apply equally.

Congratulations to Robert Latham and Hansen Palomares for the appellant on this result and for finally bringing some sanity to this costs issue.

MD was an asylum seeker. The Secretary of State rejected his application, as did the Asylum and Immigration Tribunal and the High Court. Some 10 days before he was due to be deported, his solicitors submitted a considerable amount of fresh material and sought to bring a new claim for asylum. The Secretary of State refused to accept the new claim and JR proceedings were issued (on the day set for his deportation).

Sales J refused permission to apply for JR and refused interim relief. Now, normally, you’d expect a refusal of permission to apply for JR to be followed by an oral renewal (CPR 54.12(3). MD did not do that, but appealed to the Court of Appeal instead. Carnwarth LJ granted a stay on the deportation pending a “hearing to determine the application for permission to appeal, on notice to the Secretary of State.”

The appeal itself was compromised, but a very important procedural point was identified by the Court of Appeal. Was there any power for the CA to hear an appeal against a refusal to grant permission for JR? CPR 54.12(3) clearly prohibits a party from seeking to appeal a refusal of permission to bring a JR claim.

The appellant submitted that CPR 54.12(3) was ultra vires. The governing law was s.16(1), Senior Courts Act 1981, which provides that any judgment or order of the High Court can be appealed to the Court of Appeal, unless excluded by an order made by the Lord Chancellor. As no such order had been made by the Lord Chancellor, it follows that there was a right of appeal against the refusal to grant permission.

The Court was prepared to assume that there was jurisdiction to hear an appeal in these circumstances. It noted that the effect of this would be – potentially – quite wide, in that it would mean that a party could appeal against a decision to grant permission to proceed with a JR claim.

It would, however, generally be inappropriate for the CA to hear such cases. It would mean that the CA was deciding a case as, in effect, the first instance court, without there being a full judgment below. It would also mean that there would be prejudice to the parties in exercising any further appeal routes.

The correct approach was as follows. First, the application for interim relief and permission for JR should be dealt with by a judge on the papers. If either were refused, there should be an oral renewal, if necessary to the duty judge. At that stage, if refused again, permission to appeal could be sought from the CA. The Court went on to give guidance as to the form of order that should be sought in such cases.

Why is this relevant for housing lawyers? Well, JRs with request for interim accommodation are, shall we say, hardly unknown. It’s helpful to have the CA say that (i) there might be jurisdiction to hear an appeal against that decision; and, (ii) the preferable route is to renew to the duty judge.

The appeal was given permission, and Rimer LJ

expressed the view that the appellant had a real prospect of showing that the reviewing officer’s decision was materially deficient and that the judge’s upholding of it reflected unjustified benevolence. I regarded the appeal as having merit and I also considered that it would give this court the opportunity to give any necessary guidance as to the limits of the application of the observations of Lord Neuberger in Holmes-Moorhouse v. Richmond upon Thames London Borough Council [2009] 1 WLR 413, at [50] and [51].

Soon after, Lewisham decided not to contest the appeal, on the stated (and very familiar) grounds that the decision was “based on the taking of an economic view of the likely costs of resisting the appeal”. The matter was compromised by a consent order that, after providing for the carrying out of a fresh review, dismissed the appeal and varied the costs order in the county court to ‘no order as to costs’. There was provision for detailed assessment of the public funding costs of the appeal to the Court of Appeal, but there was no agreement on the costs of the appeal to the COurt of Appeal. Instead the parties made written submissions.

The appellant argued, quite simply, that they had obtained the relief sought (a fresh review decision) and so was the successful party for the purposes of CPR Part 44.3.

The appellant raised the guidance in R (Boxall) v. LB of Waltham Forest (2001) 4 CCL Rep 258, accepted as relevant by the Court as the appeal was on judicial review grounds as an appeal from s s.204 appeal. That guidance, by Scott Baker J states:

(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 Appellant also referred to R (on the application of Scott) v London Borough of Hackney [2009] EWCA Civ 217

including Hallett LJ’s statement at [51] that a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate and that a judge must not be too ready to adopt the fall back position of no order as to costs

And raised the Court of Appeal decision in R (on the application of Bahta and Others v. Secretary of State for the Home Department and Others [2011] EWCA Civ 895, in which Pill LJ said:

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 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.

In this case there was no relevant pre-action protocol and Lewisham’s concession was only made after permission was given for a second appeal. The burden was therefore on the Respondent to show why the Appellant should not have her costs. “The costs are anyway modest, being limited to the appellant’s costs in the Court of Appeal (and specifically not including her costs wasted in initially pursuing the appeal in the High Court and in obtaining a necessary time extension for appealing to the Court of Appeal).”

Lewisham argued that no order was the right order.

Compromise of a claim for judicial review (or similar as here) “should not be regarded as an indication that the public body accepts the merits of the claim”. Lewisham relied on Simon Brown J (as he was) in R v. Liverpool City Council, ex parte Newman (1992) 5 Admin LR 669, where he stated:

On the other hand, it may be that the challenge has become academic merely through the respondent sensibly deciding to short-circuit the proceedings, to avoid their expense or inconvenience or uncertainty without in any way accepting the likelihood of their succeeding against him. He should not be deterred from such a course by the thought that he would then be liable for the applicant’s costs. Rather, in those circumstances, it would seem appropriate that the costs should lie where they fall and there should accordingly be no order

The Boxall guidelines, Lewisham argued, meant that “it is for the Appellant to establish a good reason why Lewisham should pay the Appellant’s costs, and that in the instant case such good reason could only be that: it is “obvious” that the Appellant would have won the substantive appeal”. It was not obvious in this case, and if it had been, why did the Appellant settle the County Court appeal costs on no order. In any event, as the appellant was legally aided, her solicitors would get their costs.

Rimer LJ held that Lewisham’s arguments were misdirected in three respects:

First, the thrust of Pill LJ’s quoted observations in Bahta’s case is to the effect that, in events such as have happened here, the starting point is that the appellant is entitled to her costs and the burden of showing otherwise falls on the respondent. Mr Grundy’s submissions amount to an unjustified attempt to reverse that position. Second, his suggestion that it is relevant that, because the appellant is publicly funded, her solicitors will be paid is out of line with what Pill LJ said in paragraph [61] of his judgment in Bahta’s case:

‘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….’

Third, whilst the court in Bahta’s case was referred to ex parte Newman, and was concerned with the impact of concessions upon costs orders, it did not cite the passage from Simon Brown J’s judgment upon which Mr Grundy relies. I do not regard Bahta’s case as providing any general endorsement of the approach suggested in that passage.

While it was not obvious that the appellant would have won the appeal, she did have a good arguable case.

The respondent is keen to suggest that the appellant must have regarded her case as less than gilt edged, else she would not have agreed to the compromise of the county court costs order that she did. There may well be something in that. Equally, I find it difficult to believe that the respondent’s wish to halt the appeal process was not in part motivated by the consideration that it could not be sure of victory; and by a recognition that, had it fought it and lost, it would be likely to face an order for the costs of both appeals. An early settlement of the appeal would, on that basis, make good practical sense.

The Court would approach the present case on the basis that the appellant had been successful on appeal and the starting point was that she was entitled to her costs. Although the respond had made the concession and this was a factor to be considered, it did not carry the day in favour of the respondent. “If the respondent has come to the view that the issue as to the soundness of the reviewing officer’s decision does not merit the incurring of legal costs in arguing about it, it could well have taken that decision before, ideally at an early stage of the county court appeal.”

There were not sufficient reasons to depart from the general rule that the appellant was entitled to her costs as the successful party.

Comment
As anyone dealing with s.204 appeals and judicial reviews as appellant/claimant knows, many are settled after issue by the Local Authority opponent offering to settle by withdrawing and re-making the decision at issue, but insisting on no order as to costs. The principles and approach set out in this case by the Court of Appeal are equally applicable to s.204 appeals and judicial reviews, based as it is on Boxall. This case, and its interpretation of Boxall and Bahta, should help in making clear that a concession by the Defendant/Respondent amounting to the equivalent of the relief sought will normally give rise to a costs order for the Claimant/appellant. In my view, the practice by councils of offering post issue/permission settlement on terms of no order as to costs should be resisted on that basis and written submissions sought instead, if a costs award can’t be agreed.

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.