Nearly Legal

on 25 April 2008

in Housing law and whatever

. 5 Comments

Apparently Wandsworth are very very unhappy with the Court of Appeal judgment in Wandsworth v Randall on underoccupation possessions via ground 16 HA 1985. So unhappy that they are lobbying Caroline Flint to change the law via the Housing and Regeneration bill.

There are, of course, extremely good policy reasons for underoccupation possessions. Multiple bedroom council properties are in extremely short supply and demand is high.

Wandsworth, however, are putting more than a little spin on this. Martin Johnson, Cabinet member for housing said:

Our concern is the Court of Appeal judgement provides an incentive for underoccupying successor tenants to artificially increase their household as a way to defeat such a possession application.

The judgment expressly said that artificial inflation of numbers of people living in the property would be an issue for reasonableness at the hearing. It is fully open to the landlord to present evidence on the issue. So to say

the case left landlords with ‘very little power’ to pursue ground 16 repossessions.

is nonsense.

But Mr Johnson is trumped by Brian Reilly, deputy director of housing, who fumes that this is

clearly a case where there has been an interpretation of the law that is simply wrong-headed.

Call me an old stick-in-the-mud, but that would be for the House of Lords rather the deputy director of housing of the frustrated claimant to decide.

I take it that this sound and fury means an application for permission to appeal to the Lords will not be forthcoming, but why ever not, Mr Reilly?

Stack v Dowden revisited

Published

on 23 April 2008

. 7 Comments

The Court of Appeal has effectively given guidance on the application of Stack v. Dowden [2007] UKHL 17 where one is faced with a transfer into joint ownership and no express statements as to shares in the property in Fowler v Barron [2008] EWCA Civ 377 (23 April 2008).

At 21:

To recapitulate, the important points decided by the House for the purpose of this appeal were as follows. The legal technique that the court will use to ascertain whether both joint owners who had been co-habitees had a beneficial interest is that of the common intention constructive test, rather than that of resulting trust. This will enable the court to take a holistic view of the whole of the parties’ conduct so far as it illumines their shared intentions about the ownership of the property. The court will not impose any particular allocation of property on the parties. It is not a question of the court deciding what is fair as regards the division of ownership but of determining what the co-owners’ shared intentions were as regards beneficial ownership. This was a deliberate policy choice to make the law respond to current needs: see per Baroness Hale at [60]. Where, as here, a house is transferred into the joint names of two individuals as their home, without any declaration of trust, the transfer will indicate that the parties intended to own the house in equal shares and thus the onus will be on the one (here, Mr Barron) who asserts that property is owned by them other than in equal shares to show that they had a shared intention to own the property in some other shares. The conduct that the court will take into account will include, but is not limited to, the financial contributions that they made towards the acquisition of the property or repayment of any loan raised for such purpose. The onus will not be easy for that person to discharge.

Evidence purporting to rebut the presumption of joint beneficial ownership must be of the parties shared intentions, or of a later shared change of intention.

35. In determining whether the presumption is rebutted, the court must in particular consider whether the facts as found are inconsistent with the inference of a common intention to share the property in equal shares to an extent sufficient to discharge the civil standard of proof on the person seeking to displace the presumption arising from a transfer into joint names.

36. The emphasis is on the parties’ shared intentions. As Lord Diplock said in Gissing v Gissing [1971] AC 886 at 906B-C, “…the relevant intention of each party is the intention which was reasonably understood by the other party to be manifested by that party’s words or conduct notwithstanding that he did not consciously formulate that intention in his own mind or even acted with some different intention which he did not communicate to the other party.” This would be broadly consistent with the principles applicable to the interpretation of a written document, if that had set out their intention.

When assessing evidence, attention should be given to Lady Hale’s warning at para 68 of Stack:

In family disputes, strong feelings are aroused when couples split up. This often leads the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms. They also lead people to spend far more on the legal battle and is warranted by the sums actually at stake. A full examination of the facts is likely to involve disproportionate costs. In joint names cases it is also unlikely to lead a different result, unless the facts are very unusual.

In this case, the lower Court’s finding of no interest for Ms Fowler in the property (on the basis of contribution to purchase and mortgage as a resulting trust issue) was overturned, and a 50% interest found. In particular, shared household expenses, although none directly related to property expenses, were found sufficient to infer that it was not important to the parties who paid for what specifically or respective size of contribution. Evidence of mutual wills also played a part.

It was noted that Stack v Dowden involved a quite unusual separation of finances.

From this, it is clear that the presumption of joint beneficial interest is to be taken seriously. Rebuttal evidence will have to be pretty strong.

Possession orders and RTB

Published

on 22 April 2008

Honeygan-Green v London Borough of Islington [2008] EWCA Civ 363 (22 April 2008)

. 3 Comments

A quick note on this Court of Appeal case. What happens when a secure tenant who has begun the right to buy process subsequently has a suspended possession order made against them, and then later has the SPO discharged?

The Court of Appeal’s answer, following Enfield London Borough Council v. McKeon [1986] 1 WLR 1007 and Lambeth London Borough Council v. Rogers [1999] 32 HLR 361 and indeed Burrows v. Brent London Borough Council [1996] 1 WLR 1448, was that a revived tenancy brought with it retrospectively all of the rights of the tenant as if the tenancy had never ended. So s.121(1) HA 1985 is of temporary application, while the SPO is in effect.

The upshot is that a right to buy procedure begun before the possession order is merely suspended and revives with the tenancy - so that the original market price valuation still applies.

However, there are some oddities in this case. Firstly, Ms Honeygan was very lucky to have her possession order discharged before Swindon v Aston [2003] happened, as she had breached the terms of her SPO, and under Aston, would not have been able to have the possession order discharged.

Secondly, the Court of Appeal judgment expressly approves the broad discretion of the Court under s.85 HA 1985 in Rogers

Simon Brown LJ made the point that the court’s order reviving the secure tenancy could have been made subject to a condition that the tenant’s damages claim should not be pursued

Hmm. I haven’t got access to the details now, but I seem to recall a recent appeal from a County Court decision at Lambeth County Court that said that conditions set on a s.85 revival/postponement of possession could only be related to the grounds of the original possession order - e.g. rent arrears, where the DJ had set a ‘no disrepair’ condition. It was in Legal Action, I’ll try to find it tomorrow.

Plus, as far as I can tell, this will only apply to discharged SPOs and - presumably - paid off PPOs.

EU homeless and education

Published

on 21 April 2008

London Borough of Harrow v Ibrahim & Anor [2008] EWCA Civ 386 (21 April 2008)

. 2 Comments

A Court of Appeal case, concerning eligiblity for housing assistance via EU status

The facts are, briefly, Mrs Ibrahim is a Somali national, married to a Danish national. He came to the UK in 2002 and worked until 2003, when he claimed incapacity benefit to 2004. He was then declared fit. He didn’t take up work and left the UK shortly afterwards. he returned in December 2006 and remained without work.

Mrs Ibrahim and their four children joined Mr Ibrahim in the UK in Feb 2003. The children started school in Harrow and have remained in school ever since. Mrs I is separated from her husband, has not worked and relies on benefits. In January 2007 she applied as homeless. Neither Mr nor Mrs I qualify as having a right to reside as worker, work-seeker or self-sufficient. So, unless the children had a right to reside, they would be subject to immigration control and not eligible for housing assistance. Mrs I as carer relied upon her children’s right to reside.

After a negative s.184 decision and s.202 review, the Recorder in a s.204 appeal found for Mrs I, that the children had a right to reside under art 12, Regulation (EEC) No 1612/68 (the 68 reg). Harrow appealed.

The issue is deceptively simple. It has long been held that children of an EU citizen (or the spouse of an EU citizen) who at one point had the right to reside, as a worker or otherwise, and who entered education in the host country when that right was being exercised, had the right to reside in order to continue that education, via Art 12 of the 1968 regs. This was regardless of whether the initial person had ceased to have the right to reside or had left the country. Baumbast and R v Secretary of State for the Home Department (Case C-413/99) [2002] ECR I-7091

However:

Baumbast concerned people who were self-sufficient, without specifically referring to or addressing the fact.
More importantly, the 68 reg had been, at least largely, supplanted by the Directive 2004/38/EC of 29 April 2004 (the “2004 Directive”) and the corresponding provisions of English law in the (European Economic Area) Regulations 2006 (the “2006 Regulations”).

The 2004 Directive was intended as a unifying of the previous piecemeal right to reside provisions. But it did not expressly repeal art 12 of the 68 regs, when it did expressly repeal other articles (10 and 11) in the same Regulation.

The 2004 Directive (and the 2006 Regulations) hold;

that the right to reside to continue education is available when the parent who initially had the right to reside has died or left the country.
that “Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.” (Art 14 2004 Directive). But residence as worker does not have such a condition, see Art 7(1)(a) 2004 directive.

Mrs I contended that, as art 12 of the 68 reg was not repealed, the broad principle of art 12 and Baumbast remained. Mrs I’s situation was a lacuane in the 2004 Directive as Mr I had not died and had lost the right to reside as worker/workseeker by the time he left the UK. There was no requirement of self-sufficiency to reside as a worker and was none in the 2004 Directive. Baumbast had held no such requirement.

Harrow and the Secretary of State as intervener contended that the 2004 Directive is the sole source of rights of residence and was clearly intended to incorporate Baumbast. That Art 12 wasn’t repealed didn’t matter when Art 10 of the 68 reg was repealed, as Art 10 was the source of rights of residence. In any case, the 2004 Directive made self-sufficiency an over-arching requirement for any other right to residence other than the specific exception of a worker and his family. So Mrs I didn’t meet the conditions as i) she wasn’t self-sufficient and ii) Mr I fell outside the Directive as he was neither dead, nor a worker/work-seeker when he left the UK.

The Court of Appeal leaned towards Harrow’s view, but found that the issues are not acte clair, in particular on the concept of ‘departure’ in the 2004 Directive and how far Baumbast could give an independent right to reside based on Art 12 of the 68 reg alone. So they referred questions to the European Court. Specifically:

In circumstances where (i) a non -EU national spouse and her EU national children accompanied an EU national who came to the United Kingdom (ii) the EU national was in the United Kingdom as a worker (iii) the EU national then ceased to be a worker and subsequently left the United Kingdom (iv) the EU national, the non-EU national spouse and children are not self-sufficient and are dependent upon social assistance in the United Kingdom (v) the children commenced primary education in the United Kingdom shortly after their arrival there while the EU national was a worker:

(1) do the spouse and children only enjoy a right of residence in the United Kingdom if they satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004?;

(2) (i) do they enjoy a right to reside derived from Article 12 of Regulation (EEC) No 1612/68 of 15 October 1968, as interpreted by the Court of Justice, without being required to satisfy the conditions set out in Directive 2004/38 of the European Parliament and of the Council of 29 April 2004; and

(ii) if so, must they have access to sufficient resources so as not to become a burden on the social assistance system of the host Member State during their proposed period of residence and have comprehensive sickness insurance cover in the host Member State?;

(3) if the answer to question 1 is yes, is the position different in circumstances such as the present case where the children commenced primary education and the EU-national worker ceased working prior to the date by which Directive 2004/38 of the European Parliament and of the Council of 29 April 2004 was to be implemented by the Member States?

Hmm. Interesting. This could affect a fair few people.

Nicola Rogers was instructed by Shelter for Mrs Ibrahim. Kelvin Rutledge and Sian Davies were instructed by Harrow, and a brace of QCs, Clive Lewis QC and Elisabeth Laing QC for the Secretary of State for the Home Department.

Women’s refuges and homelessness

Published

on 17 April 2008

Manchester City Council v Moran & Richards v Ipswich Borough Council [2008] EWCA Civ 378

. 6 Comments

This is a very important Court of Appeal judgment, which will have significant impact on Women’s Refuges and women fleeing domestic violence.

These were two appeals, conjoined, both featuring women whose stay at refuges had been ended following incidents and who faced findings of intentional homelessness on homeless applications as a result. The difference was that Moran had the decision as s.184 decision on application as homeless after leaving the refuge and the other, Richards, had been in the refuge after an application and acceptance of duty, with the refuge as temporary accommodation under s193 HA 1996, so duty was discharged on her making herself intentionally homeless.

In Manchester v Moran, Manchester were appealing a finding on s.204 appeal that the refuge was not accommodation (or accommodation in which it was reasonable to remain) for the purposes of s.193 HA 1996. In Ipswich v Richards, Richards was appealing a .s204 appeal finding that the refuge was accommodation in which it was reasonable for her to remain.

In both cases, if the refuge was not accommodation (or accommodation in which it was reasonable to remain), the findings of intentional homelessness would fall.

In general, local authorities have followed R v LB Ealing Ex p Sidhu (1982) 2 HLR 48 (Sidhu), in which the High Court found that a refuge could not be considered as accommodation for the purposes of the Housing (Homeless Persons) Act 1977, then in force. In addition, guidance from the Secretary of State issued in July 2006 suggests at Chap 8, para 8.34 that it should not be regarded as reasonable to continue to occupy such accommodation as women’s refuges in the medium and longer term; and at Chap 16, para 16.27, in a discussion of suitability (not reasonableness) that placement in a refuge should be a temporary expedient only for the minimum period necessary.

Broadly, the argument advanced by Moran and Richards updated Sidhu, so that a refuge could not be considered to be ‘accommodation’ for the purposes of s.175 and s.193 HA 1996; or if it was accommodation, it could not be accommodation that it was reasonable to continue to occupy. In addition, there were sound policy reasons for such a view. If a woman could not make a homeless application while accommodated in a refuge, the refuges would quickly silt up completely with women waiting on Part VI applications.

The Court of Appeal, in the sole judgment of Lord Justice Wilson, found that Sidhu could not be accommodated with the later judgments in Puhlhofer v Hillingdon LBC [1986] AC 484 and R v Brent LBC ex p Awua [1996] 1 AC 55. Following the House of Lords in Puhlhofer, it was impossible not to consider a refuge to be accommodation for the purposes of s.175 HA 1996. Puhlhofer took a very broad definition of accommodation, refusing a purposive view. (In fact Puhlhofer precipitated the introduction what is now s.175(3) HA 1996 - reasonable to continue to occupy).

Following Awua, the Court held that reasonable to occupy was not equivalent to ’settled’ accommodation. In addition refuges did not fall under any of the statutory exclusions from reasonable to occupy, and there was no order made by the Secretary of State excluding refuges pursuant to s.177(3)(a).

In any case, the nature of refuges had changed since 1982, and they could no longer be equate to short stay or emergency shelters.

The accommodation in the present cases was such that it was reasonable for the women to remain. There was no immediate threat of the termination of their licence. It was expected, as set out in the evidence of the WRA, that women would stay for months, even up to two years, while alternative permanent accommodation was being pursued. It was therefore accommodation that was reasonable for them to occupy.

Manchester’s appeal granted. Richards’ appeal dismisssed.

The Secretary of State’s guidance was wrong and should be reconsidered. If the government wished this situation to change, it would be a matter for statute - an order by the Secretary of State.

The Court was clear that a refuge would not always be considered as reasonable to continue to occupy. The Court set out a list of matters for homeless officers to address in assessing refuge accommodation for homeless applicants. I have added the full list at the end of this post. Clearly they will be of considerable importance for both housing officers and advisors.

(For complete geeks like me, there is an interesting discussion of the distinction between ‘reasonable’ (s.175) and ’suitable’ (s.206) at paras 30 & 31, but nothing turns on it here.)

This judgment places women’s refuges in a very difficult position indeed. It means that they will not be certain whether a woman that they take in will be able to make a homeless application will at the refuge. They will have to consider the list of factors set out in the judgment in each and every case, as what might be reasonable for one woman’s circumstances will not be for another woman. They will have to consider limiting the support that they offer. It effectively leaves them in an impossible position

As far as I can see, there are three options from here:

i) Appeal to the House of Lords. The prospects of success are not great, I would have thought. I suspect that the circumstances of Moran might be a better candidate for an appeal than that of Richards, but the key issues are identical, at least as long as one takes ‘accommodation’ in s.175 to mean the same as ‘accommodation’ in s.193, and I think we have to take that to be so.

ii) Secretary of State makes an order excluding refuges as ‘accommodation reasonable to occupy’. The simplest solution, and, given the SoS was an intervener in the appeal, maybe the most likely.

iii) Refuges and Councils struggle on with the ‘Moran guidelines’ as I shall christen them, as to whether a refuge is reasonable to occupy or not. A whole new swathe of s.204 appeals are born as the application of the guidelines is thrashed out.

The Guidelines - matters to be considered in enquiry under s.175(3) or s.191(1) Housing Act 1996 - are at paras 49 and 50:

49. The general matters which fall to be considered include:

(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;

(b) the terms of the agreement by which it is made available to her;

(d) the appropriateness of its location for her and her child (if any);

(e) the extent of its facilities for her child;

(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;

(g) the length of time for which they have already occupied it;

(h) the state of their physical and emotional health while in occupation of it; and

(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.

50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:

(a) the nature of the refuge;

(b) the scale of support which the refuge aspires to provide to the woman;

(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;

(d) the length of the period for which women generally occupy it;

(e) the extent to which, during her occupation, the refuge has been full;

(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;

(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and

(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.

Jan Luba QC and Adam Fullwood, instructed by Shelter, Manchester, for Moran.

Martin Hodgson, instructed by Anthony Gold, for Richards.

Martin Chamberlain for the SoS.

Clive Freedman QC and Zoe Thompson for Manchester

James Findlay and Wayne Beglan for Ipswich

Shala revisited?

Published

on 15 April 2008

. 36 Comments

London Borough of Wandsworth v Allison [2008] EWCA Civ 354 is a Court of Appeal judgment on an appeal from a s.204 Housing Act 1996 appeal. It was made in downright odd circumstances, as the respondent had won the s.204 appeal but then had public funding withdrawn, for being out of the country, not long before the Court of Appeal heard Wandsworth’s appeal. The appeal went ahead, with the respondent not present or represented. Instead the Court had Counsel for the respondent’s early skeleton and asked Counsel for the applicant to give it the arguments the respondent might have made (!!).

I’m not going into detail on the facts of the case - suffice to say it turned on the interpretation by the s.202 reviewer and the Recorder in the first instance court of medical evidence in relation to Deep Vein Thrombosis and Raynaud’s phenomenon/disease. The recorder at first instance had found that the reviewer had failed to adequately address the medical evidence.

However, as I have made clear, I hope, I am satisfied that the authority went completely wrong in their assessment of the evidence in relation to DVT and Raynaud’s. It was not simply a question of the authority making findings of fact on competing evidence, which is something they would be perfectly entitled to do. It was a question of fundamentally misunderstanding and misstating the medical evidence in important respects.

The Court of Appeal found that there was sufficient unclarity and range of views in the medical evidence that the question the recorder should have addressed himself to was whether the review officer’s decision was Wednesbury unreasonable:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B. 223, per Lord Greene MR in particular at 233- 4. In other words, was Ms Anglin’s decision one which no housing officer, properly directing her mind to the material before her could properly reach? If the decision was one which was properly open to her, then the overwhelming weight of authority is to the effect that the decision was one for her, and that there is no basis upon which the court could properly interfere with it, however, much the court may or may not agree with it. (65)

In the Court of Appeal’s view of the available medical evidence, this was simply not open to the Recorder.

Secondly, the Recorder had not properly considered the Pereia test:

Mr. Lintott’s second point was that the Recorder himself had failed properly to apply the Pereira test (as set out in paragraph 13 above) to determine whether Ms Anglin had been wrong in her conclusion that the Respondent was not vulnerable. The Recorder had held that the Ms Anglin “went completely wrong” in her assessment of the evidence on DVT and Raynaud’s disease, but he had not gone on to consider, as he should have, whether Ms Anglin was wrong in law to conclude that Mr. Allison was, when homeless, less able to fend for himself than an ordinary homeless person so that injury or detriment would result where a less vulnerable person would be able to cope without harmful effects. Nowhere, Mr. Lintott submitted, did the Recorder address Ms Anglin’s conclusion that Mr Allison could take his pills effectively when homeless, and that with continued compliance there was no particular risk of further thrombosis, with the consequence that Mr. Allison would not, when homeless, be less able to fend for himself than the ordinary homeless person so that injury would result when a less vulnerable person would cope without harmful effects. As Auld LJ had pointed out in Osmani, vulnerability under s.189(1)(c) was “not exclusively or even necessarily a medical question.” -see paragraphs 14 to 17 above. (50)

The Court was at pains to stress that a s.204 appeal is on a point of law and that the court cannot overturn the local authority’s findings of fact unless on strong Judicial Review style grounds (with the addition of irrationality and inadequacy of reasons). The Recorder had failed to properly consider whether the reviewer’s conclusion was one that she could properly come to on the evidence available to her.

Of broader significance is the address to Shala. Wandsworth’s medicial advisor was the ubiquitous Dr Keen of Now Medical - a GP. The skeleton of erstwhile Counsel for the Respondent had argued that

The proper role for Dr Keen [...] was – as stated in paragraph 22 in Shala - to enable Wandsworth “to understand the medical issues and to evaluate the medical issues before it”. As a consequence, counsel submitted, the Recorder was entitled to conclude that Wandsworth had misunderstood the medical evidence before it. (61)

The Court of Appeal sought to distinguish Shala.

Firstly, the Recorder had made no reference at all to Dr Keen’s reports in his judgment.

Secondly, in this instance, it appeared that Dr Keen had simply commented on the medical evidence (despite the ‘I make no housing recommendation’ repeated epilogue) in order to allow the Local Authority to understand the medical evidence.

It would plainly not have been appropriate for Dr. Keen to examine Mr. Allison. In the instant case, Dr. Keen’s advice seems to me to be well founded in his medical expertise, and he was thus fully entitled to advise Wandsworth on the manner in which Mr. Allison’s medical difficulties would be likely to affect him. Ms Anglin was, similarly, entitled to give weight to Dr. Keen’s conclusions. (71)

Does this represent a significant change to Shala?

I don’t think so. I think it was clear in that judgment that Shala represented a conditional limit on the use of Now Medical (or any commissioned medical) reports by local authorities, but it did not mean that a Now Medical (or council commissioned medical) report could not be taken as credible medical evidence without Dr Keen examining a patient or that any specialist medical evidence trumped a Now Medical report. In this case, comments on DVT and anti-coagulation medicine were considered to be within a GP’s expertise.

The Court distinguished Shala, and on entirely predictable grounds. Allison may represent a limit case on the application of Shala, but does not change it at all. A Now Medical report still cannot stand as expert medical evidence absent an examination of the patient, and local authorities must still consider carefully whether they are comparing like with like in considering Now Medical’s report against expert reports.

Discretionary Housing Payments

Published

on 9 April 2008

. 0 Comments

A short note on Gargett, R (on the application of) v London Borough of Lambeth [2008] EWHC 663 (Admin) which was an application for Judicial Review on Discretionary Housing Payments.

The applicant had applied for a DHP to cover rent arrears, being at risk of losing her home. She was refused as

i) she was in receipt of full housing benefit.

ii) the arrears built up during a period when she was not in receipt of HB and that “therefore Housing Benefit may not be awarded as in accordance with the Discretionary Financial Assistance Regulations 2001: 2(1) and (3)”.

The applicant contended that:

(1) The Council fettered its discretion and misapplied the Regulations in excluding lump sum DHPs from those in receipt of full housing benefit.

(2) The Council failed to have regard to the claimant’s circumstances.

(3) The Council failed to consider its own prevention of homelessness strategy.

Regulation 4 of Discretionary Financial Assistance Regulations 2001 sets the limit on the amount of the DHP. It provides

   4. The amount of a discretionary housing payment (if calculated as a weekly sum) shall not exceed, in a case where the need for further financial assistance arises as a consequence of the liability to make—

   [(a) periodical payments in respect of the dwelling which a person occupies as his home, other than payments in respect of council tax, an amount equal to the amount of the aggregate of the payments specified in -

   (i) regulation 12(1) of the Housing Benefit Regulations less the aggregate of the amounts referred to in regulation 12(3)(b)(i) to (iii) of those Regulations, calculated on a weekly basis in accordance with regulation 80 and 81 of those Regulations; or.

[...]

Thus a DHP shall not exceed the maximum eligible rent for HB purposes, so that where maximum HB is in payment and satisfying the relevant housing costs, there can be no DHP award.

The applicant contended that the phrase ‘if calculated as a weekly sum’ meant that a lump sum could be paid where full HB was in payment.

The applicant also contended that the calculation should be made for the period when the arrears arose, when HB was not in payment.

The Court didn’t agree. The regulation gives a means of calculation, not a circumstance of entitlement.

The point where the calculation was to be made was the present shortfall (if any), not a past moment of shortfall, even if there was a discretion to make back payments. The applicant was not presently eligible for a DHP, so the option of a discretionary back-payment did not arise.

Grounds 2 and 3 not considered as not arising.

Non-secure tenants

Published

on 9 April 2008

. 0 Comments

Just a quick comment on Westminster CC v Boraliu [2008] EWCA Civ 1339, which is not on Bailii yet. I was alerted by Housing View at Sweet & Maxwell.

This was Court of Appeal decision on the effect of Schedule 1, Housing Act 1985 on exclusions from otherwise secure tenancies.

The case concerned paragraph 4, which provides that a tenancy is not secure if it was granted in pursuance of any function under the homelessness provisions of the Housing Act 1996, and also paragraph 6, which provides that a tenancy is not secure if the dwelling-house has been leased to a landlord with vacant possession for use as temporary accommodation and the lease is subject to a term that the lessor of the property - who cannot be a body capable of granting secure tenancies - can obtain vacant possession on expiry of a specified period or when required.

The Appellant - who had won the appeal to a CJ - had been placed in temporary accommodation in a flat that the local authority had leased from a Housing Association. The tenancy agreement said it was non-secure tenancy under para 6. The appellant refused alternative temporary accommodation and duty was discharged. The LA brought possession proceedings under para 4.

The appellant contended that the paragraphs were mutually exclusive, so that para 4 (the homeless exclusion) didn’t apply when a sub-leased property was used. In this case para 6 didn’t apply as the LA could grant secure tenancies.

The Court of Appeal held Paragraphs 4 and 6 of Sch.1, 1985 Act, are not mutually exclusive. Each exclusion had a clear purpose, so that its operation was not restricted by the potential applicability of another paragraph.

Post mortem revival of tenancy

Published

on 6 April 2008

. 0 Comments

This is an interesting case that I missed when it came out on Bailii a couple of months ago. It has just been mentioned in Legal Action, so I went to have a look.

Austin v London Borough of Southwark [2007] EWHC 355 (QB) concerned an attempt to revive a tenancy after the death of the tolerated trespasser via an application by the deceased’s brother under CPR Part 19.8 to be appointed to represent the Estate. If the tenancy was revived, the brother would succeed to the tenancy. The brother was facing a claim for possession.

This had seemed to be settled by the Court of Appeal in London Borough of Brent v Knightly [1997] 29 Housing Law Reports 857, which held that the right to apply for a postponement of an order for possession under s.85(2) was not an interest in land capable of being inherited.

Austin, on appeal from the County Court, contended that Brent v Knightly predated the HRA and is not compliant with Art 1 Protocol 1 of the ECHR:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The proceeding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The appellant argued that the ability to make a s.85 application (called a Lazarus order in this case) should be a possession under Art 1 Prot 1 and thereby inheritable.

At first instance, the Court had found that this was not a live matter for the purposes of CPR 19.8, but in any case, the Court would not have exercised its discretion to appoint as it was bound by Knightly.

The High Court found that Art 1 Prot 1 didn’t apply; firstly because Knightly does not mean a deprivation of possession, because the tolerated trespasser is dead and can’t enjoy the possession. Secondly:

Article 1 is intended to protect a citizen’s possession from arbitrary interference or deprivation by a public authority. It does not confer substantive rights to property which do not otherwise exist. That is the effect of the decision of the Court of Appeal in Kay v. Lambeth Borough Council [2005] QB 352.

The appellant raised Stretch v UK 2003 and Tettorini v Russia 2005. From the latter:

The court reiterates at the outset that the concept of possessions in the first part of Article 1 of Protocol 1 has an autonomous meaning, which is not limited to ownership of physical goods and is independent from the formal classification in domestic law. Certain other rights and interests constituting assets can also be regarded as property rights and this as possessions for the purposes of this provision.

But the High Court didn’t see that this made any difference to Kay v Lambeth or Knightly. Appeal dismissed.

Given that Knightly was a Court of Appeal judgment, I am guessing that Counsel for the Appellant, Desmond Rutledge, instructed by Anthony Gold, must have planned to take this one upwards from the High Court. One to keep an eye open for.

Article Series - Tolerated Trespassers

Allocation Judicial Review 2

Published

on 30 March 2008

. 2 Comments

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

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

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

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

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

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

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

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

HHJ Mackie QC held that:

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

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

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

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

Allocation Judicial Review 1

Published

on 30 March 2008

. 0 Comments

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

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

The challenge was on three grounds:

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

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

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

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

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

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

S v Floyd and a disability defence

Published

on 27 March 2008

. 7 Comments

This post started as a response to a detailed comment by David Giles, Counsel for Floyd in S V Floyd, on my case report. But his comment and the report by Michael Paget mentioned in my last post - to the effect that Floyd contained a clear rejection of the very idea of a DDA ‘defence’ rather than compensation claim - have sent me back to have another look at S v Floyd. I recommend a look at David Giles’ comment, then reading this post (which is rather hurried and may well be edited over the next day or two)…

David, I agree that Malcolm was distinguishable from Floyd on the non-relation of disability to non-payment of rent point. That by itself would not mark a breach with Malcolm.

I think the distinction made between a statutory mandatory claim and the ‘contractual’ (actually common law - thanks J) claim in Malcolm doesn’t stand up, because if the suggestions in the Floyd judgment were carried through, it would make no difference - both would be lawful possession claims with no DDA ‘defence’.

I noted the scepticism to the idea of a DDA ‘defence’ at 48. and meant to comment on it in my original post. But as I did say in that post, I think that the Court has got rather confused about the very idea of a ‘defence’.

The judgment in Floyd does not put forward an argument that gets around s.22(3)(c) DDA 1995. If the eviction is unlawful by reason of being unjustified discrimination, what does the Court suggest? The implication of 48. would be a claim for compensation. So, the County Court is to aid an unlawful act by making the possession order, but it is OK because the ex-tenant then has a claim for compensation? This makes no sense.

The objection appears to be that an otherwise lawful possession claim cannot become unlawful by operation of the DDA. But that is the point of the DDA in general - otherwise lawful acts are unlawful if they constitute disability discrimination.

It is hard to escape the logic of Malcolm, once it is acknowledged that an otherwise lawful possession claim can constitute ‘less favourable treatment for a reason related to disability’ in comparison to ‘others to whom the reason would not apply’, to paraphrase s.24(1)(a).

The Floyd judgment does approach this in 57 and 58, as you say, by reference to Taylor v OCS Group Ltd [2006] EWCA Civ 702. Taylor v OCS at 72 says:

“In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer’s mind) which is related to the employee’s disability.”

This is a major difference to the interpretation of ‘for a reason’ set out by the Court of Appeal in Novacold. The judgment in OCS distinguishes Novacold by saying that the treatment in Novacold was clearly for a reason related to disability, so the judgment offers no aid on ‘reason related to…’. But this dismissal doesn’t actually stand up. If it did then the whole logic of the comparator set out in Novacold would make no sense at all, as it is based on an analyis of what the term ‘reason’ actually means, and it is not the meaning that is set out in OCS.

The stakes become clear at this point. It is not, in the end, about whether the DDA applies to mandatory possession claims. As far as I can see Floyd gives no reason at all why it would not - while not actually having to decide the issue in this case. The argument - or significant difference of position - is about the interpretation of ‘for a reason related to his disability’ tout court, pitting OCS against the line of Novacold judgments, including Malcolm and Romano, and affecting the entire application of the DDA.

But even if the OCS approach was right, and I’m sure the House of Lords will hear it in Malcolm shortly, that would not stop the DDA having potential application in mandatory possession claims. For example, what of a s.21 possession that could be shown to have been undertaken because the landlord did not want a disabled person to remain in the property? Is the only recourse of the ex-tenant to be to a claim for compensation, while the County Court aids an unlawful act?

Article Series - Disability Discrimination

HALPA almost live.

Published

on 26 March 2008

in Housing law and law blogs and blogging

. 2 Comments

As an experiment, nearly live blogging from the HALPA AGM fell foul of having my mobile turned off. So this is ‘on the way home from HALPA’ blogging instead. Useful talks on Housing Benefit, particularly on the new Local Housing Allowance, in force from 7 April.

Also news that the draft Housing bill due for passage in the autumn contains retrospective provision that all tolerated trespassers still in occupation would gain `replacement` tenacies, and that the Courts would be given discretion to allow either landlord or tenant to claim on breaches of tenancy agreement during the retrospective period of trespasser status. So historic disrepair would be in! No word on RTB status though.

There was also a report on S v Floyd which means I have to go back over the judgment for another careful look. I may have missed something very important, according to Michael Paget.

DDA and mandatory possession

Published

on 20 March 2008

. 5 Comments

S v Floyd [2008] EWCA Civ 201 is a Court of Appeal case in which the Disability Discrimination Act 1995 is considered in relation to a mandatory Ground 8 possession claim by a private landlord.

In some ways, there is nothing particularly surprising in the case - the Court found that the DDA was not engaged as there was no relation between the appellant’s disability (OCD in this case) and the rent arrears. No DDA defence had been raised at first instance, nor should it have been ‘obvious’ to the Judge that there may be one. In fact the appellant had given specific reasons for withholding rent to the first instance Court that were not connected to the disability.

On that basis, there was no need to inquire further into discrimination (including comparator) or justification.

So far, nothing out of step with Lewisham v Malcolm. As I have always maintained, against some scaremongers, Malcolm did not mean that a possession claim against a tenant with a disability was discriminatory per se. ‘Relation’ of disability to reason for eviction is a real test. As I also suggested in discussing Malcolm, appeals raising a DDA defence for the first time would get a tough hearing.

However, there is an issue raised by the Court that is of significance, but to my mind not adequately considered or argued. Does a DDA defence - (presumably ‘defence’ in the terms of Romano, rather than a DDA claim) apply to mandatory possession proceedings.

The sole judgment distinguishes Malcolm as follows:

As for Malcolm, although neither judge had the benefit of its guidance, as it was decided subsequent to their decisions, a number of points may be made showing that it does not govern this case.
First, the mandatory provisions of section 7(3) of the 1988 Act, which give the tenant a statutory right to a possession order against the tenant who is more than 8 weeks in arrears with the rent, did not apply in Malcolm. The local authority relied on its contractual right to possession.

Nothing further is said on this point, as the Court concludes that no disability discrimination arose in this case. But at 71 the Court asks the House of Lords to answer the urgent need for clarification on the scope of the 1995 Act.

I don’t see how Malcolm can be so simply distinguished, certainly without any further reasoning. I suspect that the Court is complicating issues for itself by casting disability discrimination as a ‘Defence’ to a possession claim, particularly in relation to circumstances where there can be no defence by statute (mandatory grounds).

Romano said that an argument of discrimination could be raised as a defence, under resonableness, in discretionary possession claims (at least against secure tenants), but this has led to it being conceived of as a defence per se, where Romano actually said that this was a matter of practical efficiency, rather than having to mount a counterclaim of unlawfulness.

Malcolm thoroughly confused matters by discussing disability discrimination as a ‘defence’ of unlawfulness against a non-discretionary possession order. In some ways, it would have been clearer if Malcolm had said that in such circumstances it should be conceived of as a counterclaim of unlawfulness, although, in practice, formally making the counterclaim would surely be unneccessary.

So when, as here, the Court is troubled by the idea of the DDA adding a defence to a ‘lawful’ mandatory claim, where statute actively rules out a defence, one answer is that the DDA doesn’t add a defence. It adds a counterclaim that the mandatory claim isn’t lawful, which, for reasons of practical utility is treated as a defence in hearing the claim.

There were some other issues on the District Judge not adjourning the hearing - principally on the basis that an issue of the appellant’s capacity was raised. The Court of Appeal found that:

There was nothing before the District Judge to suggest that S did not or might not understand the comparatively simple and straightforward issues raised in the proceedings on which his input was likely to be necessary.

And there was nothing before the Court of Appeal to suggest lack of capacity, either.

The Court’s ‘Exceptional Circumstances’ power to adjourn even a mandatory possession claim was not considered or exercised by the DJ. The Court of Appeal said

i) Non-receipt of housing benefit was not an exceptional circumstance, North British Housing Association v Matthews [2004] EWCA Civ 1736,;

ii) No application was made to the DJ for an adjournment on exceptional circumstances.

And that was pretty much it. There may be a further case, Bernstein v Tate, on s.21 possessions soon. Malcolm is to be heard in the week of 28 April by the House of Lords.

Article Series - Disability Discrimination

Payne-less

Published

on 19 March 2008

. 0 Comments

Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196 is a Court of Appeal judgment on an appeal of an application for revival of tenancy where all the arrears were paid off on a breached suspended possession order.

The Court of Appeal was presented with the opportunity to follow its own 1958 decision of Payne v Cooper rather than the recent string of cases, (Burrows, Marshall, Aston, Ansell). The Court of Appeal declined the offer.

In the lead Judgment, Lord Justice Pill’s main reason for the choice is that Payne concerned an unconditional possession order (and whether it could be turned into a conditional order), rather than than the post HA 1985 rent arrears SPO where conditions are obligatory. The recent cases are, by contrast, exactly on point. The second reason is that Lord Evershed’s reference to non-jurisdictional matters in Payne may have influenced the decision.

The Court also considered a submission that a ‘paid-off’ SPO could be amended by the Court under the powers given in CPR 3.1(2)(a), so as to retrospectively give an extension of time for payment and removal of the instalment condition. This would then mean the Order could be discharged under s.85(4).

CPR 3.1(2)(a) provides:

“Except where these Rules provide otherwise, the court may –
(a) Extend or shorten the time for compliance with any rule, practice, direction or court order (even if an application for extension is made after the time for compliance has expired;”

Lord Justice Pill said no. There was no reason why the CPR should override the statutory provisions. There were no unforeseen facts or change in circumstances to make the order misconceived or inappropriate. The emergence of the ‘permanent trespasser’ condition in case law, after the SPO was made in this case, did not amount to a change of circumstances that would enable the court to rewrite its earlier order.

The same went for the Court’s power to amend the order retrospectively. Statute provided for amendment on application. No application was made and nothing else had arisen to permit the rewriting under CPR 3.1

The Appellant’s submission that Marshall, Aston and Ansell were per incuriam because CPR 3.1 had not been considered in them - as a rule which would have affected the decisions - fell on this finding. In any case per incuriam only applies to a decision made without knowledge of binding precedent or statute on the matter.

Article 8, raised as an issue for construing s.85 and CPR 3.1, may be engaged by an order denying revival, but doesn’t go anywhere because “the Marshall and Aston constructions are compatible with Convention rights” (para 55)

Lord Justice Sedley was rather more open, both to Payne and to the Art 8 argument. The HRA wasn’t in force when the appellant became a tolerated trespasser, so was of no avail to him, but the Art 8 issues could mean that a Payne approach was to be preferred and the statute so construed, to avoid the Aston trap.(paras 59-61)

Lord Justice Longmore rejects Payne. If it had been raised in Marshall v Bradford, it would have likely been distinguished for the reasons (para 65):

i)    that the word “discharge” was used in the order in Payne’s case;
ii)    that there was no equivalent of section 82(2) in the 1923 Act; the regime introduced by the 1980 and 1985 Housing Acts is not the same as that utilised by the old Rent Acts;
iii)    that the earlier court did not consider the problems set out in the second and third reasons of Chadwick LJ in rejecting the argument.

In any case, Chadwick LJ’s first reason for dismissing the ‘discharge’ argument was based on the terms of s.82(2) HA 1985, which had no comparator in the earlier acts in Payne.

Even if all that was wrong, LJ Longmore would still prefer to follow the recent cases, to avoid a ‘divided voice’ in the Court of Appeal(!)(para 66).

So that, for the time being, is that. A divided judgment, to be sure, but one that puts the quietus to any lower court following in the footsteps of Helena Housing .

Payne may yet surface again in the House of Lords in the Ansell and White, but until then, it is sadly a dead issue.

Article Series - Tolerated Trespassers

Oh for heaven’s sake!

Published

on 19 March 2008

. 0 Comments

So, I have a very busy day, with no time for any considering of judgments. Nonetheless, I am puzzling over the import of a couple of recent decisions for some clients. Then, on the way home, scanning printouts of the cases, what does my mobile’s web browser reveal to me? Two significant Court of Appeal judgments are out.

Porter v Shepherds Bush Housing Association [2008] EWCA Civ 196 on permanent trespassers and Payne v Cooper. Dramatic stuff.

S v Floyd [2008] EWCA Civ 201 (18 March 2008) on DDA and mandatory possession orders. Less dramatic, I think, but some interesting points.

Can’t the higher courts sort out a regular drip feed of housing cases, for my benefit at least? I’m only human.

I’ll try to get at least one comment up tonight - Porter first. If I’m really on a roll (unlikely), S v Floyd will also be up tonight. If not, then tomorrow.

While waiting for Weaver…

Published

on 17 March 2008

. 7 Comments

I’m eagerly awaiting the judgment in R(Weaver) v London & Quadrant, but, in one of those quirks of synchronicity, Bailii has just put the Court of Appeal Judgment in Donoghue v Poplar Housing & Regeneration Community Association Ltd & Anor [2001] EWCA Civ 595 up online. It made an interesting re-read, thinking about the issues in Weaver.

I don’t want to rehearse the Donoghue arguments in their entirety. We know the basis of an intertwined history and provision of temporary accommodation post homeless application that the Court held up as the reason for finding public function, and I doubt the HRA arguments are of much use to Weaver, despite (or rather because) concerning mandatory possession (see below). But while browsing through, a few paras caught my eye. For example, para 46:

Many local authorities have transferred some or all of their housing stock to one or more RSLs. This has happened so far as Poplar is concerned. Poplar was created for the purpose of taking over part of the housing stock of the borough of Tower Hamlets [...] Mr Brockway states that as a matter of policy the Corporation has always asked RSLs to grant the most secure form of tenure available to its tenants. This will usually be achieved by granting periodic tenancies of which possession can only be achieved on discretionary grounds. Such tenancies are accepted by Mr Luba as providing the necessary protection which he submits is necessary to comply with Article 8. The Corporation requires that if a tenant has an assured tenancy, then an order for possession can only be sought if it is reasonable to seek the order.

So, the use of Ground 8 against previously secure tenants who had been part of a stock transfer is…? Here Tower Hamlets ‘asked the RSL to give the most secure tenancies’, but could this be seen as a requirement on stock transfer tenancies as in Jan Luba’s point? Donoghue doesn’t say so, but apparently because the Court was prepared to accept that an assured tenancy meant a reasonableness criterea for possession was inevitable. But this crops up in the consideration of public function, not of Art 8.

On the other hand, as we now know, the Corporation doesn’t ‘require’ that it is reasonable to seek the order, it merely recommends it, which devalues this point somewhat.

On Public Function, the Court of Appeal said at para 66:

[...] We emphasise that this does not mean that all Poplar’s functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations can be ambiguous. For example, their activities in raising private or public finance could be very different from those that are under consideration here. The raising of finance by Poplar could well be a private function.

Some things have changed since Donoghue, for example, the classification of HAs as public bodies by the Housing Corporation for VAT and EU procurement law perhaps makes the ‘raising finance’ example in Donoghue look a little different, and recasts the balancing of private and public carried out in that case.

I don’t know if Weaver involved an HRA challenge to Ground 8. If it did, frankly I would expect it to go the same way as the challenge to s.21 in Donoghue.

However, if Weaver establishes public function sufficient for JR, I would personally have thought that a challenge to a policy of using Ground 8 would have a better shot, on the basis of, say,

i) unreasonableness (failure to address circumstances, failure to meet the stated aims of the policy - recouping of rent, etc.) and

ii) fettering of discretion (a policy to use ground 8 on arrears over 8 weeks fetters the available discretion to use ground 11 & 12 or not to bring a possession claim),

with the Housing Corp Guidance to the fore in both.

And, perhaps, with an eye to Donoghue, a citing of Lord Woolf in para 46 on the expectation of reasonableness in a possession claim for an assured tenancy. After all, Ground 8, if pleaded as the sole ground of possession, not only avoids the Court’s consideration of reasonableness, but also of whether the landlord has followed the pre-action protocol on rent arrears.

We’ll see. Better minds than mine have spent considerably longer on it than I have.

Follow-ups

Published

on 13 March 2008

in Housing law and Legal Aid

. 0 Comments

There have been some very interesting comments on posts from the last week, and further news on the stories, making a catch up post worthwhile.

In no particular order…

I am delighted that Tony Fearnley commented on the Helena Housing v Molyneaux & Mower post. Tony, whom a quick google reveals is from Stephensons Solicitors, acted for Molyneaux and Mower (good work there) and also brings news that Knowsley v White has been joined with L&Q v Ansell for hearing in the House of Lords, listed for 3 days in October 2008. Helena Housing and Payne v Young is getting a lot of attention at the moment (Garden Court North have an article out -PDF). I have been told that the presiding Judge at one of my local county courts has said at a hearing (regrettably not a trial on the point) that he found Payne v Young very interesting indeed, that he would be bringing it to the attention of the other Judges at the Court and hoped it would feature in Ansell in the Lords. I also know a few solicitors who have pounced on the case and are actively using it already. I really want the time to have a proper look at Payne v Young, but it won’t be for a few days, at least.

Colin Yeo comments on Not for Profits in trouble, post fixed fee, mentioning the difficult circumstances of the South West London Law Centre. (Guardian story). The Gazette today has an article giving more detail, with a survey suggesting 20% of Law Centres are in major trouble and a further 49% in serious debt (article not available online yet). Discussions about amending transitional provisions are apparently taking place, but are late and may not be enough. This is very, very serious indeed. The LSC’s helpful comment was that they ‘had seen no evidence that law centres take on more complex work than other providers’ and ‘fixed fees were an important part of achieving value for money’. Yeah yeah, whatever.

Starting from my post on an unclear mention in Inside Housing, it quickly became clear via the comments that R (Weaver) v London & Quadrant has been a full-on JR application on grounds that Housing Associations (or L&Q at least) are public authorities exercising a public function as landlord, and that a policy of using Ground 8 is unlawful (Thanks to J). The substantive hearing took place in late February. I wait with trembling anticipation.

Lastly and considerably less seriously, I hear there is some speculation being bandied as to my secret identity. Heavens above, how immensely flattering. I blush with pleasure. But I am a creature of mystery and shadow, at least in my Fritz Lang-addled imagination, and must perforce remain in the misty darkness…

Right to Buy and suitable alternative accommodation

Published

on 13 March 2008