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By J
12/12/2009

Gimme shelter

R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [link is to a .doc] was discussed by us (via news reports in Inside Housing and on Radio 4) below. I asked for a transcript and, as if by magic, one was provided. I stand by my original view that this is actually a bit of a damp squib and certainly doesn’t give rise to any point of general importance (at least, in terms of law. I don’t dispute the factual importance to the Claimant). The more interesting points are the ones not (fully) argued but hinted at towards the end of the judgment . Anyway…

The claimant was, and had been since July 2001, an assured tenant of sheltered accommodation which was currently provided by the defendant. When the claimant moved to her current accommodation there was a resident warden and it was common ground that the tenancy agreement obliged the defendant to provide a resident warden (although no-one could actually find the relevant tenancy agreement). It was also common ground that the agreement provided for the defendant to vary the services it provided after consultation with the claimant.

In or around April 2008, it appears that new management arrangements were put in place and, at this stage, the problems began to emerge. There was some confusion (and I put it no higher than that) as to whether or not a resident warden would be provided (in fact, the same resident warden who had been working at the site since 2001) or whether there would be a move to a ‘floating’ warden service (see [13]-[19]). When it eventually became clear that the plan was to move to a ‘floating’ warden service, the claimant and other residents protested and sought to persuade the defendant to retain the resident warden service. It was said (rather disingenuously in the view of Mumby LJ at [24]) that the existing warden wanted to retire.

At this stage, the claimant instructed solicitors who threatened to seek judicial review of the decision to retire the resident warden and not to replace her with another resident warden. It was said that the claimant had a legitimate expectation that a resident warden service would be provided. At this stage, it appears that the defendant acknowledged that some form of consultation would have to take place regarding the future of the resident warden service.

A claim for judicial review was issued on January 29, 2009, relying on the legitimate expectation argument. HHJ McKenna (sitting as a deputy High Court Judge) granted an ex parte interim injunction requiring the defendant to continue providing a resident warden until the matter could come back before him a few days later. When the case did come back before him, the Judge discharged the injunction and gave directions for an acknowledgement of service to be filed and the case immediately to be placed before a High Court Judge ([2009] EWHC 384 (Admin)). This was done and Pitchford J listed the matter for a rolled up hearing – which is what Mumby LJ was dealing with.

Between the order of Pitchford J and the judgment, the defendant commenced a process of consultation during which a number of options were offered and voted on by the residents, with the most popular option (a specialist support service) being what the defendant decided to provide for a pilot period of one year. Perhaps surprisingly, no application to amend the Grounds in light of these developments was made (at [54]).

The hearing itself does not appear to have been an entirely satisfactory one. Shortly before the hearing, the claimant had indicated that she intended to seek a Protective Costs Order but, in the end, did not pursue this. It was also clear that there was a significant amount of evidence filed, not very much of which appears to have assisted his Lordship (see his comments at [64]), and – at least as regards the evidence from the Claimant – he found to be “curious… for what it does not say…” (at [68]). In addition, as the case was argued before the Court of Appeal gave judgment in Weaver, the parties were given permission to submit written submissions on that case once the judgment was handed down.

Mumby LJ was of the view that the only matter before him was the legality of  “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). This required him to consider “the nature and content of the relevant obligations (if any) owed by the Defendant to the Claimant” and then whether “the Defendant breached any of those obligations” (at [61]).

It was clear that the only obligations between the parties were found in the tenancy agreement. The obligations (insofar as material) were to provide a Warden Service (which, in the factual context of the case, meant a resident warden) and to consult before varying the services (at [72] and [76]). Framing those obligations as “legitimate expectations” added nothing. They were contractual obligations and the entire extent of the obligation was contained in the contract (at [78]-[79]).

It was also clear that the defendant had breached those obligations. There was no doubt that it had not consulted prior to making the changes to the resident warden service (at [80]-[81]). The fact that an “equivalent service” may have been provided pending consultation was irrelevant. Whether or not sheltered housing ‘required’ a resident warden was similarly irrelevant. The contract provided for consultation and that had not been complied with (at [84]).

Thus, the defendant was in breach of its (contractual) obligations to the claimant in failing to provide a resident warden without consulting the claimant.

The problem was one of relief. Even if this was a public law claim (which his Lordship declined to decide – at [89]), a quashing order would be inappropriate and a declaration would be sufficient. A declaration to that effect would be made. Permission to move for JR was also granted (at [90]-[93]).

The claimant had indicated that she intended to advance further arguments relating to a pure private law claim and designed to knock out the power of the defendant to vary the services provided at all. Those arguments (at [95]-[96]) are much more (legally) important but, as Mumby LJ said, will need to form part of another case.

So. What we’ve got here is quite a narrow judgment on the interpretation and application of one tenancy agreement. Mumby LJ is plainly right that there had been a breach of the obligations of the tenancy, but, with the greatest respect, his analysis on whether this is a public/private law dispute is remarkable. Permission to move for Judicial Review was granted, but the court declined to hold that this is a public law dispute!? If this is a private law matter then permission is not needed and the case should be transferred to the QBD / county court. If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out. For what it’s worth, this appears to me to be an entirely private law matter, where relief should sound in either an injunction to restrain the breach of contract or damages.

A victory then, for the claimant, but perhaps not of the general importance or significance that sheltered housing campaigners might wish. Having said that, if they pursue the additional arguments that they sketched out at the end of the judgment then we might get a much more interesting result. Given the criticism which his Lordship expressed of the defendant (see [28], in particular), one imagines that they’d be advised to settle any further private law claim brought against them.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.

11 Comments

  1. NL

    What a mess. The failure to amend pleadings in the changed circumstances following the consultation in particular left the issue of remedy in a hopeless state.

    I agree that it seems extremely odd to have granted permission and indeed a declaration while leaving open the issue of whether this was properly a public law claim at all.

    Legitimate expectation strikes me as a hopeless argument to bring in the first place. Simply that there was a resident warden when the claimant moved in, that may have been a factor in her decision and because there had always been one since – which appears to be how it was argued at the hearing – cannot be sufficient to found a legitimate expectation. There may well be an arguable legitimate expectation that the warden would not be removed without consultation but, as the court points out, this is identical to the private law contractural right, at least without more.

    I agree that the written submissions by Counsel opened up a potentially stronger private remedy than just a declaration and damages, depending on the reading of the clauses in the tenancy agreement.

    I’d also agree that it was something of a cop-out not to address Weaver -but I can see why the Court wouldn’t touch an Art 8 argument at that stage (written submissions), because the necessary evidence simply wasn’t there and hadn’t been raised in the oral hearing. Absent any evidence of the potential effect of the changed warden service on the claimant, Art 8 would surely go nowhere – again the failure to amend pleadings in the light of the subsequent consultation made ‘unlawfulness’ per say by the by in terms of remedy.

    As it stands then, I’d agree that it is only of use to residents with similar clauses in their tenancy agreements similarly breached by the landlord – the lesson being bring a private law claim, at least in the alternative. It will surely take another JR claim to make the Weaver public body argument, and with it public law and potential Art 8 duties.

    Reply
  2. jh

    Just a thought from a lay person, interested in, but not involved in the case.

    “Mumby LJ was of the view that the only matter before him was the legality of “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). ” and..

    “If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out”

    If the decision not to replace the resident warden was not related to the impending retirement but to a policy choice of the landlord (and this had been argued) would Mumby LJ have had the same ‘wriggle-room’ to cop out?

    Reply
    • J

      I don’t think so. The ‘problem’ comes from the fact that the case looks like a private law contract dispute but was framed and argued as a public law dispute.

      Reply
    • NL

      JH Depends entirely on how it was argued. I don’t think legitimate expectation would work on these facts, so what is the public law ground?

      Reply
  3. JS

    Definitely wisest to consider the leases first- in long lease cases in particular. In my experience the obligation to provide a resident warden will be unqualified for the obvious reason that it is what attracts buyers to the properties in the first place .

    Pointing this out to the RSL which owned and managed the block where my late grandmother’s lived in Essex brought a swift end to their consultation exercise on bringing in a peripatetic service.

    Reply
  4. DA

    If we were dealing with a Commercial Office Block with 40 tenants with the owner including a reception service as part of the agreement and the owner decided to “consult” and then withdraw the service against the wishes of the tenants I suggest the owner would be facing a breach of contract action pure and simple. The fact that Social Landlords have “weasled” in a Public Law Clause “as long as we “consult” we can do what we want” surely has no place in an Commercial Tenancy Agreement?

    Reply
  5. James

    Agree that this is not particularly significant.
    Although, the short shrift given to the wider point of legitimate expectations (77-79) was interesting.
    The judicial review against Barnet was successful too, and that seems to have been a differently framed argument, particularly using the DDA argument. Can’t find any transcript for it though.

    Reply
    • chief

      As far as I can make out the Barnet case is only on Lawtel at the moment. Portsmouth were also JRed as part of the same case.

      Reply
  6. James

    Its now on Bailii.
    Poor consultation, and another case of inadequate equality impact assessments. It looks like Barnet were dragged down by Portsmouth though.

    Reply
  7. JH

    So presumably because the DDA duty is a non-delegable duty [52]on the local authority, claims against RSLs (eg Garbet)could not proceed on simiar DDA arguments used here despite the claimants (sheltered tenants)all being in the same boat?

    Or does the fact that local authorities commission resident warden services, through SP, mean they do (in effect)delegate this duty, and ergo such arguments could be used?

    Does non-delegable here mean the same as homeless duties performed by a RSL on the councils behalf?

    Reply
    • NL

      If the RSL is a public authority in its housing function (Weaver) then the DDA arguments would apply (although in Garbett there was no claimant advancing such an argument or any evidence that there were those with disabilities involved – may well have been, but no evidence on this an not argued).

      If the RSL is not a public authority, then YL v Birmingham City Council may well apply – commissioned service from private company is not a ‘public function’ for the purposes of HRA. So still to play for, frankly.

      Reply

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