Tag Archive for 'reasonable to remain'

Physical violence only

Published
by
NL
on 17/12/2009
in FLW case note, Homeless and Housing law - All
. 5 Comments

Yemshaw v Hounslow LBC (2009) CA (Civ Div) 15/12/2009 [only as Lawtel note so far]

This was an appeal to the Court of Appeal from a s.202 appeal on the issue of what ‘violence’ in s.177(1) Housing Act 1996 meant. S.177(1) provides that it is not reasonable to remain in accommodation where the person has been subject to violence or the threat of violence.

Ms Y claimed that she had to abandon the family home with her children because of her husband’s abusive behaviour. She stated that, although her husband had not physically assaulted her, she had been subjected to emotional, psychological and financial abuse. Housnlow found that this was not sufficient to amount to violence under s.177(1) and that it as therefore reasonable for her to remain. This was upheld on review and appeal, following Danesh v Kensington and Chelsea RLBC [2006] EWCA Civ 1404.

At the Court of Appeal, with the Secretary of State for Communities and Local Government intervening, Ms Y argued that Danesh had been decided in view of the Homelessness Code of Guidance for Local Authorities 2002, which supported the definition of violence as involving physical contact. However, the 2006 guidance widened the scope of violence to include other non-physical forms of abuse. The Secretary of State supported this view. Ms Y argued that the Court had a statutory duty to consider the Guidance and on that basis, Danesh would have been decided differently today. A more flexible approach to the definition of the term by the courts was consistent with a purposive approach to social legislation designed to reflect society’s changing values.

Held:

Danesh was not decided per incuriam.

Y overstated the importance of the codes. While the court was obliged to have regard to them under s.182 Housing Act 1996, they were no more than persuasive authority. Nothing in s.182 or the Act meant that ‘violence’ had the meaning that the Secretary of State may ascribe to it from time to time.

If the Secretary of State wished to introduce new circumstances that would mean it was not reasonable to remain, there was a mechanism in s.177(3) for doing so. As this mechanism existed, the court should be hesitant in accepting that the meaning of a word had changed over time.

Continuing to follow Danesh to define violence as physical abuse would not stultify social attitudes to domestic violence.

A wider definition would in any event lead to practical difficulties for Local Authorities, who would have to make subjective judgments on applicant’s circumstances, which would be inconsistent with the straightforward requirement under s.177(1).

I wonder if we will see the s.177(3) mechanism exercised soon? I’m not going to hold my breath.

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Not reasonable but suitable

Published
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NL
on 02/07/2009
in Homeless, Housing law - All and Various (non-housing)
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Not for the first time, I (and I suspect others) have been completely wrong-footed by Baroness Hale. It would be fair to say that the House of Lords judgment in the joined appeals in Birmingham v Ali and Moran v Manchester [2009] UKHL 36 has come as something of surprise. Unfortunately, its effects will be felt for a long time and it looks likely to initiate a whole new sub-category of litigation in homeless cases, the ‘are we there yet?’ claim. On the positive side, though, its effects on Women’s Refuges are helpful, largely removing the danger that a refuge place would be classed as accommodation in which it was reasonable to remain for homeless application purposes.

First the background on issues in the joined cases (and should you wish, our reports on Ali/Aweys and Moran in the Court of Appeal).

Birmingham v Ali (formerly Birmingham v Aweys) concerned Birmingham’s policy of leaving the homeless at home in the same property, once a duty under s.193(2) had been accepted, and placing them on the Part VI allocation scheme in Band B, where homeless in temporary accommodation were placed in Band A. In the High Court and the Court of Appeal, it was found that the duty to provide accommodation under s.193(2) Housing Act 1996, which must be ’suitable’ under s.206(1), meant that suitable accommodation had to be provided immediately or a within a reasonably short time. Both High Court and Court of Appeal found that accommodation in which it was not reasonable to expect the applicant to remain (the s.175(3) homelessness test) could not be suitable accommodation for the purposes of s.193. The Court of Appeal held that ’suitable’ had to be the same before and after the housing duty arose. Further, being placed on the allocation list was not satisfaction of the 193 duty. Yet further, Birmingham’s allocation policy which distinguished between the homeless at home and the homeless in temporary accommodation was unlawful as the distinction was irrational.

Moran v Manchester concerned Manchester’s finding that a women’s refuge was ‘accommodation in which it was reasonable to remain’ such that in losing her place at the refuge Ms Moran had made herself intentionally homeless. The Court of Appeal had found that a refuge a) was accommodation and b) was capable of being accommodation in which it was reasonable to remain depending on the facts. This did, of course, mean that women’s refuges were in danger of seizing up, as the women in the refuges would not, or not necessarily be classed as homeless.

In the House of Lords, at the Lords request, the cases were placed together, although heard months apart. The reason why becomes apparent. The sole opinion is from Baroness Hale, although in effect a joint opinion with Lord Neuberger.

The main issue in both cases is identified as the meaning of the the phrase ‘accommodation which it would be reasonable for him to continue to occupy’ (s.175(3)) and its links to s.191(1) on intentional homelessness. There are other issues on Birmingham’s appeal, which I’ll come to later.

Baroness Hale states that the phrase ‘would be reasonable for him to continue to occupy’ looks to the future as well as describing a current state. It is looking at occupation over time [para 36], where s.177(1) states simply ‘it is not reasonable’ to occupy property where there is a risk of violence. This is in accord with the Act’s orientation to those who are homeless or ‘threatened with homelessness’.

The definition of ‘reasonable to continue to occupy’ is therefore to be taken as meaning that someone can be homeless if they have accommodation which it is ‘not reasonable for her to continue to occupy for as long as she would occupy it if the local authority did not intervene’ [para 34].

This means that someone can be accepted as homeless ‘even though they can actually get by where they are for a little while longer’. [para 38]. ‘Not reasonable to continue to occupy’ doesn’t necessarily mean that the person cannot spend another night in the property – and if they can’t then the s.188 temporary accommodation duty would be triggered immediately and so into the s.193 duty.

However, as the authority can satisfy the full duty under s.193(2) by providing temporary accommodation (followed of course by provision of further accommodation) it is clear that accommodation which it may be unreasonable to occupy for a long period can nevertheless be reasonable to occupy for a short period. Accordingly:

there will be cases where an applicant occupies accommodation which (a) it would not be reasonable for him to continue to occupy on a relatively long term basis, which he would have to do if the authority did not accept him as homeless, but (b) it would not be unreasonable to expect him to continue to occupy for a short period while the authority investigate his application and rights, and even thereafter while they look for accommodation to satisfy their continuing section 193 duty. [para 42]

The requirement that the accommodation arranged under s.188 or under s.193 (for temporary accommodation) be suitable means that it must be suitable for the period of occupation envisaged., What is suitable in the short term may not be suitable in the medium or longer term. [para 47]

So the same property in which it would not be reasonable for the homeless applicant to continue to remain under s.175(3) may be suitable for his/her continued occupation in discharge of s.188 or s.193(2) duties!

Moran v Manchester is thus disposed of. A women’s refuge will not be accommodation that it would be reasonable for the woman to occupy indefinitely, unless there are clear facts indicating that circumstances are otherwise. It would therefore fall under s.175(3) and she would be homeless as long as she stayed there. There is therefore no need to deal with the issue of whether the refuge was accommodation at all (Sidhu) or whether it was caught by the decision in Puhlhofer, as was the issue in the Court of Appeal, although the Court of Appeal was right that Sidhu did not survive Puhlhofer [paras 52-56].

On the Birmingham cases, the issue becomes at what point the accommodation could no longer be described as suitable for discharge of the s.193(2) duty and the local authority would therefore have to secure alternative accommodation under that duty. [para 48]

Baroness Hale, while acknowledging that ‘it may be’ that the Birmingham cases meant the Council was on breach of its duty at some point, says that this is a question that turns on the particular facts in a case. As the basis on which the Birmingham cases were brought was on the principle, rather than their specific facts, there was no longer any basis for a decision in their favour in the claim.

On the practical implications, a court faced with a claim that the person has been left in the accommodation for too long should be slow to accept that this is so, as it is primarily a question for the authority. Nonetheless, there will be cases where the court ought to step in. While it would be wrong to ignore pressures on stock, budgets and personnel on the part of the authority, one cannot overlook the clear duty to the homeless imposed on the authority. So there will be cases where the present accommodation is so bad, or has gone on for so long that the court will conclude enough is enough [para 51]

And that was main argument done with. On the lawfulness of Birmingham’s allocation policy, it is clear that Part VI and Part VII duties are different. Performing a Part VI duty does not mean that the Part VII duty is satisfied and vice versa. Birmingham’s view that temporary accommodation was automatically Band A and homeless at home automatically Band B meant that the Council could not address the ’short term’ basis of the suitability of the homeless at home accommodation.

As far as the Court of Appeal’s judgment on the allocation policy was based on the conclusion that the applicants could not lawfully have been left in their current accommodation, it was wrong. However, that judgment was also based on the view that the Part VII duty to both groups was identical and it was unlawful to prioritise one.

R (Ahmad) v Newham LBC[2009] UKHL 14 (our report) suggested that, as long as a reasonable preference was given to all homeless applicants, there was no reason why an authority should not decide to give further priority to one group over another, as long as it was not irrational.

However, on the sparse information given to the court, there did not appear to be a rational justification for the policy of prioritising those in temporary accommodation over the homeless at home where a duty had been accepted. So, the policy was unlawful on that basis.

Thus the result was:

Moran v Manchester: Appeal upheld.
Birmingham v Ali: It is lawful for Birmingham to leave the ‘homeless at home’ where they are in the short term. It is not lawful for Birmingham to leave them there until a property becomes available under the allocation scheme – the present accommodation may well become unsuitable long before then. The allocation policy is unlawful to the extent that it gives priority to people in one type of temporary accommodation which is no less satisfactory than that of the homeless at home.

Comment.
It is perhaps difficult to resist the view that, having arrived at a neat and effective solution to the problem posed by Moran v Manchester – where the ‘it is not accommodation’ argument was in real trouble – the Lords sought to map that onto Birmingham v Ali and achieve a ‘practical’ result. But, as far as I can see, Baroness Hale and Lord Neuberger have effectively read in the word ‘indefinitely’ to s.175(3) such that it reads ‘A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy [indefinitely]‘. Certainly that is the implication of para 52.

I’m deeply uneasy with this idea of a ‘forward looking’ sense to s.175(3). ‘Forward looking’ is covered by s.175(4) – likely to become homeless within 28 days. The forward looking aspect of s.175(3) is surely that continued occupation after this point in time would be unreasonable.

It may be worth considering whether the judgment opens up a whole new aspect to homelessness applications – ‘not reasonable to remain indefinitely’, as that appears to be the clear implication.

And then suitability in respect of s.188, s.190 and s.193 accommodation. Clearly, suitability is, in terms of temporary accommodation, not an issue of suitability for indefinite occupation. But as a not so hypothetical question, given the facts in the Birmingham cases, how can a statutorily overcrowded property where a duty is accepted be suitable for any length of time? (although Harouki v RB Kensington & Chelsea suggests otherwise, but may itself be wrongly decided in the light of this case) – but of course this is question of circumstance and fact that we will be now left to litigate as ‘no longer suitable’ (‘are we there yet’) cases. I can say with complete confidence that the legacy of Baroness Hale’s opinion will be a couple of years of cases on ’suitability’.

And what will be the venue? If the assumption is that remaining in the property is discharge of s.188 or s.193(2) duty, is the route via s.202 review and s.204 appeal? Or, if it is a freestanding decision, is it subject to judicial review? Para 50 does not make it clear, with passages that might imply both routes. Should we expect a case or two on this issue. Of course, if the authority refuses or fails to consider a submission on (un)suitability, that is a JR.

The upshot is that the ‘practical’ solution will mean a lot of litigation, leave a lot of people in properties in which it is not reasonable for them to remain, but, on the plus side, solve the disaster facing women’s refuges. Birmingham’s previous allocation policy is also left unlawful, which, frankly, has to be a good thing as a rational justification was nowhere in sight.

Heaven knows how costs were allocated on the Birmingham cases, but there will be a certain unhappy Birmingham based practice… Plus I will have to swallow all previous ‘intent on suicide’ comments – intent on self mutilation, perhaps, but not suicide on Brum’s part. Whether they are going to like the legacy in practice is another matter entirely.

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Not interesting enough

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

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

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

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

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

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

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

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

The Court therefore declined to decide the academic points raised.

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

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Cardiff homeless – tactical lessons?

Published
by
NL
on 06/05/2008
in Homeless and Housing law - All
. 0 Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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