Tag Archive for 'temporary accommodation'

Gatekeeping and an absence of records

Published
by
NL
on 30/01/2010
in Homeless and Housing law - All
. 0 Comments

Local Government Ombudsman’s decision:  London Borough of Hammersmith & Fulham (09 001 262)

‘Ms Kenza’ (not her real name) approached LB Hammersmith and Fulham as homeless when she had to leave her private rented home following an incident of domestic violence. She was 8 months pregnant.

Hammersmith did not place her in temporary accommodation pending enquiries. Instead officers encouraged her to find accommodation in the private sector. A homeless application was not mentioned by the officers. She was later given a night’s accommodation by the out of hours service and, she asserted, she then spent 4 days sleeping rough in a park.

She complained to the Ombudsman that Hammersmith had failed to give her adequate advice and assistance and also complained of sexual and racial discrimination.

The Ombudsman found that Ms Kenza “suffered some injustice because she was not provided with the level of support and assistance she could reasonably expect as a person who was homeless and in priority need”.

Further, the Ombudsman found maladministration causing injustice.

The standard of record keeping by housing officers in this case was so poor that it hindered the Ombudsman’s investigation of the complaint and fell so far below acceptable standards that it amounted to maladministration.

He said: “It has not been possible to resolve some conflicts of evidence because of the absence of detailed contemporaneous notes recording housing officers’ contact with Ms Kenza, [voluntary agency] caseworkers and other professionals.”

Officers did not consider taking a homelessness application from Ms Kenza after she left her accommodation even though she had told a housing officer she was homeless. The Council applied too strict a test when deciding whether it should provide Ms Kenza with temporary accommodation by insisting she provide proof of homelessness first. The Council also failed to follow its own procedures for referring victims of domestic violence to a specialist domestic violence housing advocate for support and advice. The liaison and exchange of information between officers in the Children’s Service and Housing Service about a vulnerable service user was also ineffective.

However, in the absence of any specific incident or comment made by an officer, the Ombudsman did not uphold Ms Kenza’s complaint that she was subjected to racial and sexual discrimination.

The Ombudsman recommended that the Council apologise to Ms Kenza and pay her £750. In addition the Council should:

  • remind all housing officers of the need to maintain accurate and detailed records of their contacts with service users and their advisers and advocates;
  • review its systems for sharing information between Children’s Services (and Adult Services in relevant cases) and the Housing Service about vulnerable service users;
  • ensure that the established procedure for referring service users to the domestic violence housing advocate are followed; and
  • ensure that all forms used by the Housing Service are dated and ensure that records of service users placed in emergency accommodation by the Out-of-Hours Service are copied to the housing officer responsible for the case.

Impressive work there by LB Hammersmith and Fulham, compounding gatekeeping with incompetence. In case anyone from the Council is reading, let me remind you of the wording of s.188 Housing Act 1996, with a little emphasis.

188. Interim duty to accommodate in case of apparent priority need. — (1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.

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Outsourced temporary accommodation

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

Many local authorities use private accommodation for temporary accommodation under Housing Act 1996 Part VII. This may be by an LA ALMO ‘managing agency’, on which more at another time, or by licence agreements with private agencies.

One of the latter came to grief in Birmingham in 2008 and the decision to abandon the agency agreement was the subject of judicial review proceedings in First Real Estates (UK) Limited v Birmingham City Council [2009] EWHC 817 (Admin).

First Real Estates (FRE) supplied temporary accommodation to Brimingham between 2005 and 2008. It was founded by Iftikhar Hussain, who had previously worked for Dyadal Property Link. Dyadal then became one of FRE’s major suppliers of licences for properties, which private landlords in turn submitted to Dyadal. FRE wold supply properties to Birmingham at very short notice and ended up being used, a lot, by the HPU. After a little while FRE began representing itself as ‘registered agents for Birmingham City Council’. it is worth noting that there was no express register or agency agreement with BCC in place. Instead each property was taken under a licence agreement which stated that “The licence is terminable by either party on receipt of written notice at any time”. On FRE’s part, the licence stated “we warrant for our part that the Housing Unit complies with all current legislation and is fully licensed as required to be used as residential property.”

In late 2007, Birmingham decided to put provision of temporary accomodation to public tender and FRE were informed that its tender had not been successful. While the tender process rolled on, FRE properties continued to be used extensively by BCC.

After a few years of apparently happy licencing, Birmingham were made aware of some issues with the accommodation provided by FRE.

CLP, no strangers to this blog, had threatened to bring JR proceedings over one property as being unsuitable for the discharge of Part VII duty and submitted a complaint about another property’s appalling condition and alleging that:

The Agent who showed Mr Nurhussein around the property gave the impression that he was from the local authority. He advised Mr Nurhussein that if he failed to sign for the accommodation, then he would be on the streets.

Mr N was moved to B&B on the day the letter was received.

Another licencee left accomodation after one night because “it was dirty, infested with insects in the kitchen and broken windows. My mother also witnessed seeing mice in the kitchen”

And then came the other complaints:

By letter dated 30 May 2008 one Maxine Goggins of Weir Housing Ltd wrote to the Council a letter stating that she had received a call from someone who identified herself as Nicky from FRE “in a very aggressive manner and a male voice could be heard in the background to prompt the caller”. Ms Goggins stated “When I tried to defend myself I was continually spoken over and told it was now a police matter”. Ms Goggins understood that the call was prompted by FRE’s discovery of a Weir Housing Ltd business card in the possession of an occupant of one of FRE’s properties.

A Council officer identified rent claimed in respect of an empty property. And:

Another Council officer, Gary Nicholls, reported that he had received an e-mail from a British Gas contract manager alleging that one of his engineers was offered extra work by Mr Hussain in exchange for omitting various findings from his report. The e-mail caused the Council particular concern.
11. The Council also became concerned about the safety of gas appliances and gas supplied in properties supplied by FRE. By a letter dated 21 May 2008 Lisa Barker, the Council’s interim head of housing, referred to “discrepancies” in the gas safety certificates supplied by FRE in respect of fifteen properties. The letter stated that the Council’s private sector housing services team would undertake inspections of all the properties managed by FRE, following which FRE would be advised, in writing, of the inspection carried out, the contraventions (if any) and the necessary remedial works to ensure that the properties comply with the Council’s enforcement standards. The Council received no response to that letter.

All in all, not a pretty picture. Still, when FRE came to a meeting arranged by the Council to discuss standards of properties, they apparently arrived confident that failing to meet basic standards for habitable property was a minor glitch that could be sorted out. To that end:

Mr Iftikhar Hussain attended that meeting along with his solicitor (Ms Virk), Mr Naeem and Councillor Tariq Ayoub Khan. Mr Khan is deputy leader of the Liberal Democratic Party in Birmingham. He had known Mr Iftikhar Hussain for over twelve years and spoke well of him. He had in the past made representations to the Council on behalf of FRE, particularly about a delay in making payments. He attended the meeting on 16 June because he understood “the aim of the meeting was to resolve issues and the way forward for both parties was to work together … At the commencement of the meeting I spoke and told everyone that I was hoping a constructive way forward would be worked on to avoid a potentially embarrassing situation”.

We will say no more about Mr Khan’s presence over the volumes already spoken by the invitation by FRE to attend and his mention of a ‘potentially embarrassing situation’ which is oh so redolent of Yes Minister.

Unfortunately for FRE, at the meeting of 16 June 2008, BCC first raised the complaints and then said that FRE’s services were being ended on 7 days notice.

What this actually meant is that the Council would be seeking alternative accommodation for those in FRE temporary accommodation after 7 days. A continuing process. And also that there would be no new licences taken.

FRE sought judicial review of the decision, on grounds that the decision was unfair and unreasonable because:
(i) The Council did not notify FRE in advance of the particular issues and properties to be discussed at the meeting that day.
(ii) At the commencement of the meeting Mr Iftikhar Hussain was presented with a letter setting out various allegations of regulatory defects but was not given time to investigate these and to respond as he would wish.
(iii) The allegations as to non-compliance with the Gas Safety (Installation and Use) Regulations related to more than 150 certificates so that it would take considerable time to check them but Mr Hussain was not allowed the time to do so.
(iv) The allegations as to non-compliance with the Health and Safety Rating System introduced under Part I of the Housing Act related to 23 properties so that it would take considerable time to check them but Mr Hussain was not allowed the time to do so.
(v) No period of time was offered to FRE at the meeting on 16 June to remedy the various defects in the properties of which complaint was made.
(vi) The Claimant had not been forewarned of “the vital fact” that the meeting was to be followed by a discussion as to whether the Council would continue to use FRE’s services.

Now, quite apart from the written warning of investigation of Gas Safety inspections that FRE had already received, quite how it can be unfair to ‘not give time to remedy’ evidenced breaches of fundamental statutory duty is beyond me, particularly as the Council wasn’t actually issuing enforcement notices. But this is by the by as the prime issue was whether the decision was properly subject to judicial review.

On this FRE submitted that there was an ‘overarching agreement’ between it and the Council pursuant to which:

“The Claimant has a legitimate and reasonable expectation that the arrangements between it and the [Council] would not be abrogated in a summary and arbitrary fashion and with no adequate notice”. FRE admitted that there was no written agreement, but maintained that “an estalished arrangement was undoubtedly in place whereby reliance was placed on the Claimant by the Defendant to provide services to house the homeless on a temporary basis to discharge their responsibilities and the Claimant placed reliance on the Defendant to use its service and to discharge its invoices as they fell due.”

The Council maintained that FRE was simply one of a number of providers that they contracted with on a case by case basis to provide accommodation. References to an ‘arrangement’ in letters from the Council simply referred to the specific private contractual nature of the licences.

The Court took the Council’s view, despite the clear fact that FRE had been used extensively by the Council in discharge of Part VII duties. This was a series of private contracts, not an overarching agreement.

This did not prevent the contracts being subject to judicial review, but the question was whether the contested power was defined by statute. Here the contracts were private contractual agreements and there was no register of approved suppliers involved. S19(9) of the Local Government Act 1989, argued by FRE, was simply not relevant as it did not create a right to judicial review where that would not otherwise be the case:

In principle it cannot be right to permit a claimant suing a public body for breach of contract to invoke public law, for as Neuberger LJ (as he then was) stated in Supportways v Hampshire CC, [2006] LGR 837:
“If he could do so, it would place a party who contracts with a public body in an unjustifiably more privileged position than a party who contracts with anyone else, and a public body in an unjustifiably less favourable position than any other contracting party”.

And that, apart from a swift disposal of any hopes of a private/contractual claim FRE might possibly thought they might have, was that. The claim failed, costs to Birmingham.

But there is one point I’d take issue with. FRE didn’t plead legitimate expectation, but the Court pointed to the Council’s letter to FRE dated 21 May 2008 in which the Council stated

that it would inspect the properties managed by FRE in the next 4-5 weeks and “following the inspection your company will be advised, in writing, of the inspection carried out, the contraventions (if any) and the necessary remedial works to ensure that the property complies with the Council’s adopted enforcement standards for all private sector housing”. It is fairly to be inferred into that letter that if FRE were to conduct any of the remedial works identified as necessary in the course of such inspections, so as to bring the relevant property up to the Council’s enforcement standards for public housing, the Council would consider such property as suitable for its use in providing public housing. But the decision of 16 June 2008 intervened before the inspections were completed.

This is surely wrong. Firstly the Council didn’t set ‘public housing’ enforcement standards, but private housing standards. The Council is the enforcement body for those standards generally, via the EHOs and enforcement orders. There can hardly be any legitimate expectation for continued licensing in the Council stating that it would be taking the usual warning and enforcement steps that it should do for any private letting accommodation in breach of statutory requirements. I can only hope the Court didn’t pay this point full attention because it was, effectively, obiter.

All of this tempts me to post on Street v Mountford and s.11 L&T 1985 liability in such situations, but that will have to wait for another time.

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An inconvenient problem

Published
by
Dave
on 01/04/2009
in FLW case note, Homeless and Housing law - All
. 1 Comment

There were lots of good intentions behind the SI making clear that 16/17 year olds are in priority need (The Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002 /2051)). But as a few have pointed out in recent years, there might be consequences because of the capacity requirements of property law. Well, in Alexander-David v LB Hammersmith & Fulham, those good intentions (and property law) have bitten back.

Ms Alexander-David, a 16 year old who was also pregnant, was provided with accommodation by Hammersmith and Fulham LBC under s 193(2). They granted and she took a standard form non-secure tenancy agreement terminable by four weeks notice to quit on either side. The agreement contained her name and age, and the usual covenants and provisions for rent payment. She breached the covenants (she has a dog, there are complaints about nuisance and rubbish, and there are arrears). H&F served a notice to quit on Ms Alexander-David.

So what’s wrong with that? Well, it may be inconvenient, but, Sullivan LJ rightly held that, as she’s under 18, she cannot take the grant of a tenancy at law (s 1(5) Law of Property Act 1925); and as it’s an attempt to grant a tenancy to a minor para 1(1), Sch 1, Trusts of Law and Appointment of Trustees Act 1996 kicks in which means that the purported grant operated as a declaration of trust by H&F for Ms Alexander-David. Any second year law student (who’s going to pass their property law exam) knows that. Kelvin Rutledge for H&F argued valiantly that four factors made it clear that, although this was a standard form agreement, Ms Alexander-David had taken an “equitable tenancy”. None of these factors, however, was sufficient “… to displace the obvious inference to be drawn from the fact that the agreement is in the Respondent’s standard form for creating legal tenancies with its adult tenants” ([26]).

In any event, the proposition that Ms Alexander-David had taken an equitable tenancy was, in itself, novel and pretty clever. As Sullivan LJ put it at [31]:

I am not persuaded that a landlord who has full capacity to grant a legal tenancy, and who grants a tenancy without any express qualification to the effect that something less than a legal tenancy is being granted can subsequently say that what he granted was not a legal tenancy, but an “equitable tenancy”. As Miss Bretherton put it in her submissions: a landlord does not elect to grant an equitable tenancy; such a tenancy arises in certain specified circumstances, recognised by equity.

There was a moment in the judgment (at [17]-[22]) when it looked like Sullivan LJ might have been persuaded to follow his own path to find that the council had no power to enter into an agreement under which they were to act as a trustee (on the basis of s 21 and 32(3), Housing Act 1985), but he pulled himself out of such a finding slightly unconvincingly (by saying that there had been no public law challenge in any event and making brief reference to s 44, 1985 Act). Neither counsel wished to proceed with that line in any event.

Slightly more inconveniently for H&F, however, this finding of a trust of land with themselves as trustee created a difficulty as regards the notice to quit. There were two issues with the notice to quit: (a) its service by the trustee (ie H&F) was a breach of trust; and (b) it was, in any event, served on the wrong person (it should have been served on the trustee, ie themselves, not Ms Alexander-David). H&F was “… in the absence of any other trustee, in the uncomfortable position of being both lessor and trustee, and in the former capacity of being not merely a party to the breach of trust, but the instigator of the breach” ([35]). Kelvin Rutledge, again rather valiantly, submitted an argument drawing on certain sentences from the judgments in Hammersmith & Fulham v Monk and Crawley BC v Ure but these cases involved joint tenants and were not relevant to this issue.

By way of conclusion, Sullivan LJ rather generously offered two possible alternative transaction types which the council could use for under 18s: (a) a non-exclusive possession licence which included the provision of services; or (b) an agreement to grant a tenancy until the occupier is 18, such agreement taking effect in equity only. But “Whatever course is adopted, it is important that the inability of a minor to hold a legal estate is expressly recognised, and that any agreement with a 16 or 17 year old expressly states that because the applicant is a minor the Respondent is not granting a legal estate but is instead securing that accommodation is available by granting something other than such an estate” ([38]).

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Homelessness – when unitary authorities aren't.

Published
by
NL
on 15/01/2009
in Community care, FLW case note, Homeless and Housing law - All
. 0 Comments

R (Hassan) v Croydon LBC (Admin Court 13 January 2009. Only reported  so far in Arden Chambers eflash 336) was a judicial review on the discretion to secure accommodation pending s.202 review under s.188(3) HA 1996 and whether a potential duty under s.20 Children Act 1989 by the authority should be considered.

The applicant, together with her children aged 10 and 3, had fled Doncaster in 2005. In an initial application to Croydon, she stated she had fled through violence by a gang of youths. She was found not homeless. In a subsequent application,in 2006, she stated that the real reason was domestic violence, of which she had been ashamed. Croydon found her intentionally homeless on s.202 review. After living in various temporary addresses, the applicant applied again as homelessand was given temporary accommodation. Croydon found her intentionally homeless from Doncaster. The applicant requested a s.202 review and continued temporary accommodation under s.188(3). Croydon declined to exercise the discretion.

The next day, the applicant’s solicitor provided new information – that the son said he had also been beaten by the father in Doncaster and that the applicant had told the solicitor she wanted to kill herself and her children. The solicitor asked for a reconsideration. Croydon again declined to exercise the discretion.

The applicant issued Judicial Review proceedings, arguing that

i) the s.184 decision was based on the decision in the second application, which was manifestly flawed in that it found that the applicant had suffered domestic violence but had left Doncaster intentionally.

ii) As the authority said it accepted that the applicant has stated an intention to kill herself, it was irrational not to take the case as exceptional.

iii) As the applicant’s children would be children in need for the purposes of s.20 Children Act 1989 if the applicant was not accommodated, the Authority, as a unitary authority, would owe them the s.20 duty. In the light of this, it was irrational not to leave the applicant in her present accommodation, and also a breach of Art. 8.

Held:

The decision in respect of the second application was not manifestly flawed.

The Authority had appropriately assessed the new information provided by the solicitor and, in view of the history and context of the case, it was not an irrational decision to find her case was not exceptional.

To require a unitary authority to consider the existence of a s.20 CA duty when deciding on the exercise of the s.188(3) HA discretion would make such decisions unnecessarily complicated. The authority could not be require to take into account such a future duty.

The Art 8 argument was rejected. The JR claim failed.

While turf wars between social services and housing in unitary authorities are hardly news, the run of recent cases, particularly on accommodation for children, has been highly disapproving of attempts to dump duty on one department by another, with recommendations for interaction within unitary authorities.

While the Court’s attention to the administrative burden of the HPU is fair enough, I’m slightly surprised to see an endorsement of the idea that no consideration of the LA’s broader potential duties needs to be involved. That said, it would be hard to imply a duty to consider this into HA 1996.

[We should note that Emily Orme of Arden, who acted for the Claimant, presumably wrote the useful report.]

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Refusing Temporary Accommodation

Published
by
NL
on 21/12/2008
in FLW case note, Homeless and Housing law - All
. 0 Comments

Once someone is in temporary accommodation, following an acceptance of the full housing duty to a homeless person by the local authority, what happens when that temporary accommodation becomes unreasonable for the household to continue to occupy, but alternative temporary accommodation is refused by the tenant?

Muse v London Borough of Brent [2008] EWCA Civ 1447 was an appeal arising from LB Brent’s decision to discharge duty under s.193 HA 1996 when Mrs Muse refused alternative accommodation offered when her current temporary accommodation (at Press House!) became overcrowded.

Mrs Muse was successful at s.204 appeal, arguing that s.193(5) did not apply. S.193(5) provides:

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

Mrs Muse argued that this did not apply where the person was not homeless and she had an assured shorthold of the Press House flat. This was accepted by the Court. Brent had also announced, in their offer and discharge letters, that they would ‘instruct the housing association [the direct landlord] to seek possession’. This turned out to be an error. However, Mrs Muse’s housing benefit was paid at higher rate as a person in temporary accommodation than as ‘just’ a tenant, so rent arrears would accrue quickly, as the rent was at a ‘temporary accomodation’ level. (This shows how ludicrous the charges made for temporary accommodation are – particularly when, as here, it is actually an assured shorthold tenancy! Stadium Housing again…)

Brent appealed to the Court of Appeal. Brent argued that
1) Once a duty arises, it continues until it ceases. It does not go into abeyance or become dormant. If the applicant is in temporary accommodation she can at any time be asked by the housing authority, in this case, Brent, to move to other accommodation. If the person to whom the duty is owed is occupying accommodation belonging to a private landlord, it follows that the housing authority can ask the private landlord to give her notice seeking possession if it wishes her to vacate the premises. This is important for policy reasons. Unless Wednesbury unreasonable, Brent can move those in temporary accommodation.
2) when it became aware that Mrs Muse was in unsuitable accommodation, it became obliged to offer her suitable accommodation and thus its duty would cease if it made her an offer complying with s 193(5), which she refused.

Mrs Muse made similar submissions as before.

Held: R (Awua) v Brent London Borough Council [1996] AC 55 suggests that where temporary accommodation is unreasonable for the person to remain in, they again become homeless. (No submissions were made on Auwa). So here a fresh duty arose when Mrs Muse’s household became overcrowded. As there is no requirement for an application as homeless to be made in particular form, the fresh duty arose when it was clear to Brent that Mrs Muse was overcrowded. Alternatively, the duty was never fully discharged in law, and arose again once the temporary accommodation became unreasonable to remain in.

40 On either basis, Brent was obliged to, and did, offer alternative suitable accommodation. Brent complied with s 193(5). Accordingly, the offer was on terms that Brent’s housing duty would be discharged if Mrs Muse declined to accept the alternative accommodation. If Miss Roberts’ submission on s 193(5) were correct, there would be an extraordinary internal inconsistency in the position in law of somebody like Mrs Muse. That person would be in a position to say that she was homeless and that Brent owed her a full housing duty, but that she was not homeless at the point in time when she made an application for transfer. An interpretation of s 193 that does not produce this basic inconsistency is clearly preferable.

41 The result of this conclusion on s 193(5) for Mrs Muse is severe because it means that Brent no longer owes her a full housing duty. It is, therefore, essential to consider whether the judge was correct on his alternative reasoning (unfairness). Mr Carter in opening his appeal submits that Mrs Muse was always aware that she was accommodated on a temporary basis. He further submits Brent followed the statutory safeguards which were required by Parliament and which Parliament clearly considered to be adequate. Mrs Muse was an assured shorthold tenant and therefore had no long-term security. She and those representing her had in any event consistently maintained that 42 Press House was unsuitable for her. Accordingly, Brent would have been acting unlawfully if it had not found accommodation which was suitable.

The subsiduary argument on unfairness was considered. Mrs Muse submitted she should have been given a full explanation of what Brent were doing once they had received the transfer request.

Held:

The type of notice for which [Mrs Muse] contends is not one required by section 184. Mrs Muse suffered no prejudice from any non-compliance with s 184. (Moreover, any non-compliance with s 184 could not affect Brent’s obligation to provide her with suitable accommodation, or the validity of the later offer of accommodation in fulfillment of that duty). It is a reasonable inference from the correspondence and from the attempt at rehousing which did not go ahead that Mrs Muse knew that Brent accepted that her existing accommodation was unsuitable for her, and that that was why it was trying to rehouse her. Mrs Muse was also, to the knowledge of Brent, advised by solicitors, and they could reasonably be expected to advise her fully on the legal situation. Accordingly, in my judgment, Brent was not in fairness obliged to offer her the choice of moving to alternative accommodation or staying at her existing accommodation.

On waiver: This had not formed part of the case below, and while Mrs Muse could possibly have waived the performance by Brent of its duty, her household were also affected. the Court was not prepared to find a waiver had been made.

Appeal allowed, but on Brent’s letters to Mrs Muse stating that the Housing Association would be instructed to pursue possession:

I wish to make some observations about the passage in the letter of 5 October 2006 which I set out in paragraph 17 above. Mr Carter accepts that this statement was misleading. He accepted that Brent had no legal right to instruct the landlord to obtain a court order for possession. He informs us that all Brent did in practice was to inform the landlord that the housing duty had been discharged and that the housing benefit would therefore be paid a lower rate. The fact however, is that this statement was made. I am surprised to see a public authority make this sort of incorrect statement. Of its nature, it was bound to cause distress since it would have led the tenant to believe that he or she would shortly be homeless and on the street. It was therefore a very serious statement to make. It is properly accepted that it was incorrect. A person in Mrs Muse’s position is a private law tenant of a housing association and it would be for the housing association to consider its position. It is not correct for Brent to suggest that it has any right to instruct the association to attain a court order for possession. I hope that housing authorities will take note of these observations, and that these statements will not be repeated in future.

Well, quite.

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Manchester CC v Moran – Lords appeal

Published
by
NL
on 29/10/2008
in Homeless and Housing law - All
. 0 Comments

One of Nearly Legal’s band of information elves (sorry H) brings news that Sharon Moran in Manchester City Council v Moran [2008] EWHC Civ 378 has been given leave to appeal to the Lords. This was the important Court of Appeal case on women’s refuges and homelessness that we previously reported. I am also, via another route, reliably informed that Richards, the respondent in the joined case at the Court of Appeal, has not sought permission.

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On the Naughty Step

Published
by
NL
on 21/09/2008
in Assured Shorthold tenancy and Housing law - All
. 23 Comments

Or an RSL behaving badly, again. And this time it’s personal…

21 Press House, Press Road LON/00AE/LSC/2007/0292 [pdf], an LVT decision. The landlord, Stadium Housing Association, were facing an application over hefty service charges made on an shorthold assured tenancy which was Part VII temporary accommodation for Brent Council.

How did Stadium Housing decide to defend the case? By attacking the integrity of the Tribunal. Stadium pointed out that the chair, Nik Nicol, was a member of the Housing Law Practioner’s Association (yes, Hlpa!). Stadium, via their counsel Mr Grundy, alleged that:

the purpose of Hlpa was to promote the interests of tenants [...] and it was as plain as a pikestaff that an “ordinary member of the public” would perceive members of Hlpa as biased in favour of tenants.

Nik Nicol pointed out that he was not just a member, but had been on the executive of Hlpa for 9 years and helped to write the constitution. In addition, another member of the sitting Tribunal, Mel Cairns, was also a founder member of Hlpa and is currently on the committee.

Stadium, it was pointed out, had utterly failed to understand the difference between ‘promoting the rights of tenants’ (Hlpa aim) and promoting the interests of tenants. Finding in favour if a tenant without basis in evidence and law would not be promoting the rights of the tenant. In addition Hlpa’s code of conduct commits its members to professional behaviour. There could be little that was more unprofessional than judicial bias, which was what was being suggested.

Hlpa’s stated objectives were notably similar to those of most RSLs and would not look out of place on Stadium’s website, so it would be hard to see how a member of the public could perceive bias.

Mr Grundy’s submissions would mean that no member of Hlpa could ever hold judicial position, simply by that membership and that would make a mockery of the rigorous selection process. There was no bias or appearance of bias.

Just why Stadium might have taken this utterly ridiculous approach is clear in the rest of the Judgment. They were levying a walloping £129.72 per week service charge. However:

  • It was improperly apportioned under the tenancy agreement
  • Services had been changed without notification or consultation
  • Stadium could provide no breakdown of the charge
  • Charges weren’t audited, despite Housing Corp requirements
  • The charge was very high in comparison to others, for no reason, but it was usually paid by Housing Benefit, so nobody cared (except the applicant, who was working).
  • The contract was not individually negotiated so the Unfair Terms in Consumer Contract Regulations were engaged
  • The applicant was being asked to pay a charge for things that “no assured shorthold tenant in the private sector would even think of paying, even if the landlord were minded to try to impose it”.
  • On reasonableness of other charges, there was simply no evidence provided of the actual costs incurred by the respondent. The Tribunal wasn’t prepared to guesstimate on no evidence.

The result, service charges of £42.75 per week payable, a drop of £87 per week. This amount to be retrospective. No subsequent changes to the service charge made by the respondent were valid.

Oh dear, oh dear. Probably best not to impugn the professionalism of the Tribunal when it is your utter lack of professionalism that is about to come to light.

This challenge to service charges for temporary accommodation under Part VII is worth bearing in mind when, for example a client is facing a ‘rent arrears’ possession from temporary accommodation, if a service charge component is levied, at least. Stadium are far from alone in their cack-handed handling of the charge.

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Fair and commonsense reviews

Published
by
NL
on 01/05/2008
in FLW case note, Homeless and Housing law - All
. 0 Comments

So, then

Omar v City of Westminster [2008] EWCA Civ 421

Briefly, the facts were that Mr Omar made a homeless application to Westminster. His household consisted of his wife and his infant son who had just been born and was, at the time of the application was under special care at Kensington & Chelsea hospital. The son was discharged on 28 December 2006. Westminster accepted a duty on 15 January. The family were given temporary accommodation in a hotel. On 19 February Westminster offered a two bed property in Walthamstow E17 for temporary accommodation under s.193 HA 1996. Mr Omar refused the offer, stating that his infant son had a further hospital appointment at Kensington & Chelsea. Mr Omar provided a letter from January 2007 confirming post discharge weekly appointments and another letter confirming an appointment on 21 February.

Westminster wrote on 23 Feb 2007 discharging duty to accommodate under s.193(3) and 193(5). A review was requested of both suitability of the offer and decision to discharge on the basis that Mr Omar relied on the medical support in the Westminster area and family support in the area. Further medicial information was received from the hospital on 4 May 2007 with a current prognosis. Westminster’s review was negative. The decision letter mixed past and present tenses in addressing the situation, but takes as a main basis the report of 4 May 2007 from Kensington and Chelsea Hospital on the then current care and prognosis for the baby.

At s.204 Appeal, the Judge found that:

  1. As to the suitability of the property, the reviewer was entitled to consider the position at the review date – subsequent to the first decision.
  2. As to the decision to discharge duty, the review had to be limited to the facts at the date of the decision, but that in this review, the reviewer had so limited themselves.
  3. There was, in any case, no point in sending the matter back for further review as the same decision was bound to be reached.

The Court of Appeal, in LJ Waller’s sole judgment, reversed this and directed the matter back for further review.

The Court take an avowedly commonsense appproach:

It seems to me that the question of what facts may be taken into account on the review will depend on what is being reviewed and must, unless there is some compelling legislative provision which dictates to the contrary, be dictated by what fairness requires.(25)

Thus where the decision-making process effectively continues up to the end of the review, it is fair to consider the facts as they are at the date of the review. But when, as here, the decision is final at a certain date, and, as per Osseily v Westminster City Council [2007] EWCA 1108, duty is discharged at that time, not somehow postponed until the end of the review; then it is the facts at the date of the initial decision which are at issue (even if what those facts are comes to light later on – it is fine for the reviewer to find things out later about that point).

Having set out its commonsense goal, the judgment performs some remarkable acrobatics to show that this view is either compatible with, or distinguishable from previous cases: Mohamed v Hammersmith and Fulham LBC [2002] 1 AC 547; Sahardid v Camden LBC [2005] HLR page 11; and in finding support in Robinson v Hammersmith and Fulham LBC [2006] 1 WLR 3295.

These paras, 27-31 are well worth reading as a masterpiece of teleological analysis.

In this case, the County Court Judge was:

  • wrong to separate suitability of accommodation and the discharge of duty decision
  • wrong to hold that on suitability facts up to the date of review should be considered, because duty had already been discharged
  • wrong on the review decision letter, which was clearly fundamentally based on the later information of 4 May, so the argument that no other decision was possible on the facts fell.

The general principle for any review under Housing Act 1996 (suitability of accommodation, housing duty, suitability of offer of permanent accommodation, presumably) is, as far as I can see, as follows:

The ‘cut off date’ for what facts should be properly considered by the reviewer depends on what is being reviewed.

Where the review is effectively a continuation of the decision-making process, the facts continue to be relevant up to the date of the review. An example would be a review of suitability requested by someone who had at the same time accepted the property and is in occupation.

Where the decision is a final one, no facts relating to a point after that date are relevant to the review. So a discharge of duty or, as far as I can see, where an offered property is no longer available after refusal (but there has been no discharge of duty), that date of first decision is the cut off point for relevant facts on review. But remember, this is the date to which the facts relate, not the facts known to the decision-maker on that date. Any facts that subsequently come to light that concern that date are relevant to the review.

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Report to come…

Published
by
NL
on 01/05/2008
in Homeless and Housing law - All
. 0 Comments

I previously mentioned a Garden Court report on Omar v Westminster. There is also a brief Times report here.

The full judgment is now out on Bailii and is interesting.

Omar v City of Westminster [2008] EWCA Civ 421 (03 March 2008) on reviewing suitability of s.193 temporary accommodation.

I’ll get to it tomorrow (or later today, now).

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Non-secure tenants

Published
by
NL
on 09/04/2008
in FLW case note, Housing law - All and secure-tenancy
. 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.

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