Thanks, as ever, to Jan Luba and Nic Madge in Legal Action for putting out notes on cases, including those that don’t make the reports. There were a few of those in December’s Legal Action that are worth a mention – of course, all I have to go on is the LA note. (Hint – anyone sending a report to Legal Action could also think about sending one here, or you could send a report here even if you don’t intend to send it to Legal Action. Full credit given – in a larger type size than LA, at that. Not that there is any rivalry intended, heaven forfend, we just like having new case info and things to speculate about up on the blog).
First up is Birmingham City Council v Qasim (Birmingham County Court 8 October 2008). An admin officer in Brum’s housing department had arranged for 14 tenancies, completely outside the allocation process and with no authority. These had been disguised as mutual exchanges, where there were no exchanges. An audit report found no evidence to show complicity by the tenants in the fraudulent behaviour of the officer.
Birmingham sought possession on three alternative grounds:
1. The grant of tenancy was an unlawful allocation and so a nullity
2. HA 1985 Sch 2 Ground 1 and tenancy agreement – repossess the property where false information given to get the tenancy, or someone has given false information on the ‘tenant’s’ behalf.
3. Ground 6 – mutual exchange for a premium.
One of the Defendants, supported by the others, applied to strike out the claim on the basis that there were no reasonable grounds to bring it.
On the evidence, the Circuit Judge found:
Ground 6 was not available as there were no exchanges
Ground 1 was not available on lack of evidence of false information being given
The CJ then turned to the unlawful allocation. He found that Islington LBC v Uckac  EWCA Civ 340 was the relevant binding precedent and that therefore Birmingham could only obtain possession on one of the Schedule 2 HA 1985 grounds. Accordingly, the possession claim was dismissed.
With all respect, this strikes me as questionable. Uckac simply doesn’t address the unlawful allocation point, and if that point is right, there is no secure tenancy. This is a different point to the rescission argument in Uckac – see paras 25 and 26. I understand that Birmingham are appealing, and for once I would have to say I am not surprised.
Notting Hill Housing Trust v Deol (Brentford County Court 10 October 2008) – confirms that a s.21(4) notice must either expire on the end of the term of the tenancy (periodic) or have a functioning saving clause, ‘after expiry of two months from the service upon you’ won’t do unless the days add up right. Oh and a month is a calendar month, not a lunar month (how desperate was counsel for the landlord?).
R(Hyslop) v Legal Services Commission  EWHC 2294 (Admin) – retention of property (including a long lease) incurs a statutory charge, even where the loss of the property is only ‘theoretical’ due to the claim being hopeless and doomed to fail. As an aside, how does one rack up £6,371 of costs at legal aid rates on defending a ‘doomed to failure’ possession?
Kelly v Westminster City Council (Central London County Court 14 August 2008). A s.204 appeal. On review, Westminster upheld a decision that a 49 year old man who had asthma, back pain, depression and a history of crack cocaine use and of imprisonment was not vulnerable. This was despite the fact that he had at best stayed with friends, or crashed at crack dens while out of prison for intermittent periods since 2005. His homeless application was supported by a letter from a prison officer stating that he was institutionalised and would relapse on release. Westminster, in its wisdom, decided that he was not institutionalised and that he had managed to secure accommodation in the past.
On appeal, the Court found that the findings that Mr Kelly was not institutionalised and could find accommodation were so unreasonable, no reasonable review officer could have made them. The prison officer could not decide on vulnerability, but was capable of assessing whether someone was institutionalised. Staying with friends or in crack dens could hardly be taken as ‘securing accomodation’. In any case Mr Kelly had been recalled to prison because he couldn’t secure accommodation. Decision quashed. What can one say? I mean really…
Melka v Tower Hamlets LBC (Bow County Court 7 July 2008) – Interim accommodation in an area could amount to a local connection/normal residence. There was no rule that interim accommodation could not amount to residence of choice s.199(1)(a) HA 1996. A witness statment from a review officer that stated that an issue had been considered did not rewrite a decision letter that had failed to address a relevant issue.
A post on R(M) v Barnet LBC  EWHC 2354 (Admin), which we had unaccountably missed, will be up in a day or so (make it two) – Children Act 1989 s.17 and s.20 duties.