17/05/2010

These we have missed/didn’t know about

As ever, the Housing updates in Legal Action for May 2010 contains news of a few homelessness cases that are otherwise unreported and which hadn’t reached us – primarily County Court decisions or applications for permission for JR or appeal that didn’t make Bailii or elsewhere.

Human Rights
Slough BC v Aden [2009] EWCA Civ 1541
Application for permission to appeal on the basis that the provision of a non secure periodic tenancy of a hostel room under the homelessness provisions of Part VII Housing Act 1996 was incompatible with Art 8 of the ECHR. Mr Aden had been found not to be in priority need and an NTQ served on the non-secure tenancy. Permission to appeal refused. The issue had been considered in Sheffield CC v Smart [2002] EWCA Civ 4 and Desnousse v Newham LBC [2006] EWCA Civ 547 and Part VII had been held to be complaint.

Homelessness
O’Callaghan v Southwark LBC. Lambeth County Court 6/11/2009
The Claimant, aged 17 applied as homeless. She was dealt with under Part VII and not referred to Children’s Services. She was provided with temporary accommodation, but no s.184 decision was made or notified to her. The Claimant was evicted from the foyer style accommodation she had been placed in. Southwark decided that she was intentionally homeless as a result, upheld on review. On appeal, Southwark argued that securing the foyer style accommodation was part of its homelessness prevention arrangements, so accepting the placement had brought the Claimant’s homeless application to an end. HHJ Welchman allowed the appeal and varied the decision to one that the Claimant had not become homeless intentionally. There had been no decision on her application, so the loss of interim accommodation could not give rise to a finding of intentional homelessness. Prevention of homelessness, while a good thing, was not an alternative to the Part VII framework and provision of accommodation as ‘homelessness prevention’ could not be used as a way to avoid statutory responsibilities. (Good work by Cambridge House Law Centre(R) there).

R(Halewood) v West Lancashire DC. Admin Court sitting in Manchester 31/07/2009
Ms Halewood made an application under Part VII. The LA decided that she lacked capacity to make such an application, R v Tower Hamlets LBC ex p Begum [1993] 1 AC 509. A consultant psychiatrist advised that while she possessed capacity to understand and respond to an offer of accommodation, her mental condition would be likely to impair her ability to comply with conditions of tenancy to some degree.

Ms H sought judicial review on the grounds that it was not open to the Council to refuse her application simply because her lack of capacity may have some, possibly minor, role to play in future breaches of tenancy, and that the ratio of Begum was that only a person lacking in capacity to understand and comprehend an offer of accommodation ought to be excluded from Part VII. At a renewed permission hearing , HHJ Pelling QC accepted that the misapplication of the Begum test was arguable and granted permission. The claim was settled on accepted of the homeless application and subsequently full duty by the Council.

Eryurekler v Hackney LBC. Clerkenwell & Shoreditch County Court 09/02/2010
The applicant had applied as homeless after giving up a private tenancy. In that tenancy, there was a shortfall of £25 per week between housing benefit and rent. The applicant received Income Support and child tax credit. The Council found intentional homelessness, up held on review. Neither decision refereed to the Homeless Code of Guidance para 17.40, which states that accommodation should not be considered affordable if residual income (after costs of accommodation) would be less that the level of income support (or income based jobseekers) applicable or that would be applicable if entitled to claim it.

On s.204 Housing Act 1996 appeal, the applicant argued that ‘income support’ in the Guidance should be read as including tax credits, as otherwise the applicant would be in a worse position than someone receiving income support with a childcare element, or an adult on income support with no children. The Council argued ‘income support’ should be given its natural meaning and limited to the amount actually paid to the applicant for herself.

HHJ Mitchell held that the Council’s interpretation would lead to ‘unprincipled results’ which could not have been the intention of the Secretary of State.. The decision maker was obliged to consider paragraph 17.40 and clearly had not as no reasons were given for departing from that recommendation. But the appeal was dismissed as the applicant’s unnecessary expenditure was very high, such that the rent was actually affordable.

Connors v Birmingham CC Birmingham County Court 15/01/2010

Ms C was owed the main housing duty by Birmingham. She declined an offer of permanent accommodation. Birmingham sent a letter saying it had discharged duty but gave no reasons why the property was considered suitable. On review, the review officer acknowledged the failure to give reasons, but sent a ‘minded to’ letter asking for further representations within 7 days. Ms C did not make representations in the 7 days and the decision was upheld. On appeal, the review decision was quashed. Ms C would have had 21 days to consider and respond to reasons if the original decision had contained them as it should. She had been deprived of that opportunity and setting a limit of fewer than 7 days for representations in the ‘minded to’ letter was unfair on that basis.

Our thanks as always to Jan Luba QC and HHJ Madge for gathering and circulating these cases. The May issue also contains a useful article by Robert Latham on the new TSA regulatory framework. However, there is a suggestion that the TSA might not be long for this world, making it probably the shortest lived housing regulator ever. We shall see.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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