This is somewhat belated – I’d missed these and the court of appeal isn’t on Bailii to link to – so thanks to Legal Action for the heads up.
White v Southwark LBC [2008] EWCA Civ 792 was an application for permission for a second appeal from a s.204 appeal. Ms White was excluded from her mother’s home when she was 15. her mother said she had behaved unreasonably and broken house rules. Ms White later applied as homeless (apparently when over 18 with no settled interim accommodation – I may be wrong here). She was found intentionally homeless for her actions that resulted in her being excluded from the mother’s home.
The second appeal was on the basis that her acts while a dependent child should not have been considered as the statutory regime did not envisage consideration of either homelessness of dependent children or applications by them.
Held – permission refused. Neither statute nor authorities prevented the consideration of the deliberate acts and omissions of children even at 13, 14 or 15. This conduct can be taken into account in applications by those now non-dependent.
N v Allerdale BC Carlisle County Court 4/08/2008, on the other hand, concerned a finding of intentional homelessness based on the behaviour of the applicant’s child. Ms N was given notice to leave her private rented accommodation due to the behaviour of her son, then 14. The landlord was quite clear it was not a problem with her conduct personally.
Allerdale decided she was intentionally homeless, upheld on review. On s.204 appeal HHJ Peter Hughes allowed the appeal and varied the decision to not intentionally homeless.
- The s.184 was silent on the acts or omissions of the applicant that had rendered her homeless.
- The reviewing officer had failed to identify this fundamental flaw, triggering the requirements of reg 8(2) of Allocation of Housing and Homelessness (Review procedures) Regs 1999. SI no 71.
- The correct question was not whether the applicant could show she had not acquiesced in her son’s misconduct, but whether, on assessment of the all the available material, was there material that indicated she had not acquiesced.
- The reviewing officer should make clear that the applicant was being held responsible for the acts of another and give clear cogent reasons for this finding.
- Where credibility was at issue, fairness meant that the reviewing officer should have personally interviewed the applicant.
(Counsel, instructed by Shelter, was my new crush, James Stark of GCN)
Thanks for this NL, I lost touch of White after trying to keep an eye on it. Phew! is my response (and that of anyone living in a Southwark council flat I’m sure).
N is a set-back but, from your write-up, it seems a diligent reviewing officer may in similar circumstances simply point out to the applicant that she is not able to rely on the artifice of thuggery-by-proxy to abdicate her parental responsibilies in order to jump the housing register queue.
More importantly, the same point may (by a creative advocate) be used in possession proceedings against blind-eyed parents of ASB perps and gang-members who ply their trade within the vicinity of their tenancies. This could prove to be the most sucessful means of breaking up the gangs, and saving lives, on those estates where the rule of law slips away every day with the setting of the sun.
Does anyone know any caselaw where parents have been evicted following sucessful prosecutions of their charges for rape, maiming or murder?
Michael: You really haven’t been doing housing for quite a while have you? ASB possession proceedings can be and are based on allowing other occupants or visitors to commit ASB, so no need for your ‘creativity’. If you are going to play agent provocateur, it helps if your targets aren’t straw men (at least here), otherwise you just look a bit silly and, you know, Daily Mail.
As far as N goes, the statutory requirements for intentionality are quite clear – act or omission of the applicant – so to say the kid’s behaviour was the mother’s intentional act, the decision-maker is going to have to come up with something a bit better than ‘you are his mother so it is your fault’. Or do you believe that, like White, she should have thrown him out?
Two questions immediately spring to mind (I’m sure there are more).
1. Why did the court of appeal even have to consider these matters if the issues are so cut-n-dry as “experts” like yourselves claim? I suggest because they are still fermenting (and based on these two cases, they are beginning to consider more the continuing effect on those other than the alleged perpetrator)
2. With so potent a preventative legislative mechanism at their disposal, why would LA’s pursue the ultimately useless ASBO course of action when that will neither prevent (at least for those who have already gained a “criminal record”) from carrying-on their current misbehaviour, or from continuing to behave in the same way on their return from the short stint of bird?
William Flack, I think, has the answer to this one with his honest admission “social” lawyers are necessarily divorced from the daily lives of their clients by privilege and class and that, provided “they” menace and stab each other, it just doesn’t matter much.
But what if it did matter?
I’m open to the charge of agent provocateur (because I find little else so much fun) but in this instance NL’s accusation is misplaced. I feel (not think, I’m playing to the tactile crowd now) a genuine need to confiscate the impunity benefit-bankrolled abusers enjoy and to make them accountable for their actions and the actions of their offspring. They should not be allowed to hide behind guise of feigned ignorance (was that a double-negative in my verbose pomposity?) and an “I jus caaaan’t control ‘im guv” and should be told to leave, please, and hope for the pity of the borough down the road.
And it they can’t persuade that HPO, then try the next.
If their homes are provided by the government. And the rent paid in HB. And the Chick-King by child benefit. And the skunk by the dole. And the shank with what’s left. And the son joins a posse. And the posse gets a beef. And the beef cuts a boi…
Then that’s state-sponsored-stabbin.
Mum, leave, and take your bullies with you.
In terms of tackling the most important social issue of our generation, housing law is the single most important area of law.
It just doesn’t realise it yet.
The trouble is I think there are a number of benefits keeping a difficult family at home where you can create structure and support. What does moving a family really achieve? Being displaced often causes a great deal of difficulties in itself.
It’s a tricky one which I guess is one of the reasons that the old chestnut of should there be a ‘council house for life’ gets raised so often.
Can one blame children with parents and family who have never worked for not working themselves? Children must be given the chances and opportunities to work in a society where working for something is seen as something to be proud of.
I think :)
@Michael: 1. N was a county court s.204 appeal, as the post makes clear. The court of appeal wasn’t troubled.
2. Why do Councils use ASBOs rather than say possession proceedings? You’d have to ask them, but I suspect the answer might involve a) ASBOs being easier and cheaper and having a far lower standard of proof; b) Possessions not actually solving the problem because if you are dealing with kids, someone, or some part of the LA is still going to have to accommodate them. Your alternative being? Ah yes, make them some other LA’s problem. Well thought through there.
And then eh? William is of course quite right that lawyers (middle class pretty much by definition) are not engaged in the daily life of their clients, but I think you’ll have to search quite hard to find him saying that as long it is just each other they hurt, offend etc., who cares. Do you actually live in a reasonably large city, by the way?
As for the rest, a strawman again. What you complain of has got bugger all to do with the practice of housing lawyers. Putting it at the very best, you are complaining about the law.
I don’t think you will find many arguing with you if you say that housing is a vital area for tackling the most significant social issues. But if you genuinely believe that the practice of housing law is anything approaching an adequate or sufficient tool to make changes, you are completely bonkers. And, as purists would point out, it is hardly the job of law to do so. I believe there is something called politics, though. That may be what you are looking for.
Now, no more of this please until you have mastered the basic principles of the separation of powers.
Interesting ideas here, Michael.
I don’t think it’s creativity we lack, but certainty.
I was instructed by an RSL to give an opinion on the chances of gaining possession of an assured tenancy in circumstances where the tenant’s 15 year old son had been sentenced for 3 years for the rape of a 13 year old girl in the lift of the block in which they both lived.
Interpreting rape as a nuisance and annoyance was an easily surmountable hurdle, and the court, in considering what the effect that the nuisance or annoyance had on persons other than the person against whom the order is sought, would, we thought, have to conclude that the effect was grave.
But, when we asked ourselves what how the the nuisance or annoyance could be interpreted as continuing, or repeatable, we fell down.
Creatively, I considered arguing that the mere continued occupation of the family was a daily nuisance and annoyance to the victim and her family. Tenuous. What about arguing that the eventual return of the perpetrator was the cause of continuing annoyance? Maybe. But not definitely. In discussions with the client, we thought we had a good chance of persuading the court that upon his release, he might well repeat the nuisance and annoyance. But we weren’t certain, and the risk of failure could have proved costly, both financially and (dare I say it) morally.
The case was not strong enough to be certain, so we did not pursue it through the courts.
But the victim was still living there, she was still frightened, and the release date was approaching. Some way had to be found to protect the girl. Somewhat distatefully, the family of the rapist themselves attempted to use the situation to reinforce their own long-standing transfer application. This was entirely unacceptable to the landlord.
The solution (that is too flattering a word) was to move the girl’s family instead.
He is probably out by now. And back in his old hunting ground.
I certainly agree with NL that housing law is inadequate. But I think the separation of powers argument should be used sparingly, as it is usually a claim for impunity when we know that we haven’t (or couldn’t have) acted in the best interests of the world at large, or of our consciences.
House, I agree entirely with your take on the spiral of poverty. Children from benefit dependent families certainly don’t need their chances further diminished by homelessness.
I also agree with the tenets of the ASBA amendments to the 85 & 88 Acts which considers the effect of the behaviour on others (Tobywun’s case is testament to the deficiencies of these provisions).
When working for RSL clients, I often attend conferences to discuss strategies in order to stike a balance between the two. Thankfully, as a legal advisor, I only have to consider the likelihood of success of one action over another. It is the landlord who has to make the decision and that is usually based on the “what happens next?” question.
Do we go for possession agains the family and fail on the reasonableness of making minors homeless? What if we are sucessful? Will we see them at the HPU in any case? Will the children miss school in the interim? Will social services need to be involved?
In answer to Michael, LAs favour the ASBO route because the variables of possession / eviction / homelessness are too unknowable and the risks to the children considered too high. It’s a difficult call.
As for lawyers not dabbling in politics, has anyone told HLPA?
Tobywun – why didn’t you go the Ground 14(b)(ii) convicted of arrestable offence route? Looks pretty clear cut to me.
@Derek: Re HLPA dabbling in politics – not in the actual practice of housing law, which was what Michael was calling for.
@Tobywun – that case strikes me as a clear outright order. Why didn’t Ground 14(b)(ii) cover it? The fact that the incident probably wouldn’t occur again wouldn’t matter because of the seriousness of it – see Sedley LJ in LB Lambeth v Howard (“the shadow of the past…”)
@NL you need to update your statute collection – “arrestable” offence as a category has disappeared, you want “indictable”. Rape is (of course) indictable.
@Francis Davey: Ah, but when was Tobywun’s case? ;-)
Arrestable or indictable the real question is as always reasonableness .
This is just the sort of offence that is very unlikely to have some tenant culpability involved unlike say drugs offences where a blind eye might be turned or storing a burglar son’s stolen goods .
Moreover, the ground to evict for offences replaced the old use of premises for immoral or illegal purposes. In debates in Parliament before the Housing Act 1996 it was made clear that the extension was intended to deal with criminal behaviour that affected the quality of life in the locality e.g drug dealing – it was nowhere suggested that it should used as an ancillary punishment to be handed out to parents of perpetrators of one off serious crimes .
@JS. The matter tobywun raised is pretty clearly arguable as one that ‘affected the quality of life in the locality’. And Ground 14(b)(ii) is certainly not limited to drug-dealing – see Raglan Housing v Fairclough, para 19 in particular.
http://www.bailii.org/ew/cases/EWCA/Civ/2007/1087.html
Ground 14(b) sets no nuisance to others criteria, unlike 14(a), but I’d agree that would have to be a reasonableness issue.
NL
I would never suggest that it was restricted to drug dealing it plainly is satisfied when any indictable offence is committed by the tenant or a person residing or visiting but if you look at the debates that was what the then Government were seeking to target.
The crucial questions in a case like that expressed by Tobywun – are whether the perpetrator will be returning to the property, whether the victim is still in the area and needs or properly feels that she needs continued protection and the degree of remorse etc . For every Lambeth LBC-v- Howard there is a Sheffield City Council -v- Shaw .
JS – according to Tobywun, this was the case – the perpetrator was returning on release, the victim was still in the block and she and her family were frightened. Hence my suggestion (and that of J) that this was a pretty clear cut 14(b)(ii).