When we reported on Lana Wilson v London Borough of Harrow  EWHC 1574 (QB) two weeks ago, we noted that another application for permission to appeal on the issue of the rule in LB of Hammersmith and Fulham v Monk  1 AC 478 was underway. And here it is. There is also an appeal on a dismissed public law defence, which raises a number of issues.
Briefly, Mr Howe and his then wife were joint secure tenants of Tower Hamlets. The property was transferred to Poplar Harca, at which point Mr & Mrs Howe became joint assured tenants. In May 2006, after the Howe’s separated, Mrs Howe applied as homeless to Tower Hamlets and then signed a ‘termination of tenancy’ form, so that she could be offered another property.
Poplar Harca (PH) have a common housing register and common allocation policy with Tower Hamlets. PH applied to the Council’s housing management panel for Mr Howe to be rehoused. He received four offers of accommodation, which he rejected as unsuitable. Only the fourth was in issue here. Mr H refused the fourth property because PH refused a to pay a moving allowance, payable to people downsizing from a larger property, although it waived rent arrears. PH then sought possession on the basis of the termination of the joint tenancy by Mrs H.
At first instance Mr H argued the incompatibility of the rule in Monk with Art 8 and a public law defence. Both were dismissed. Mr H sought permission to appeal to the High Court.
i) Monk and Incompatibility.
The argument advanced by Mr H on incompatibility was broadly similar to that in Wilson. However, Mr H also argued the recent run of ECtHR case law (Cosi v Croatia Application 28261/06, Paulic v Croatia Application 3572/06 [links to our reports]) and that this marked a move beyond the House of Lords decision in Harrow LBC v Qazi (2004) 1 AC 983, such that it was seriously arguable that the rule was incompatible despite Qazi.
This, frankly, didn’t get any further that Wilson had. Mrs Justice Rafferty noted the Croatian cases, and the observation of Cranston J in Coombes v Waltham Forest LBC  EWHC 666 Admin that
There is an obvious conflict between the Strasbourg jurisprudence and our own
However, following Husband v Solihull MBC  EWHC 3673 (Admin) and Wandsworth LBC v Dixon  EWHC 27 [links to our reports], Qazi was held to be solid precdent that the rule in Monk was compatible with Art 8. The importance of national precedent in such situations, per Lord Bingham in Kay v LB Lambeth  UKHL 10, was crucial.
Permission on this ground refused.
ii) Public law defence
[To be honest, it is hard to make out arguments from this judgment. Some arguments seem to be mentioned, but no decision is reached on them, while other arguments are clearly decided upon. As I’m reliant on the judgment here, I’m doubtful that the arguments of either party are accurately reproduced.]
Mr H argued that:
- The Notice to Quit was unlawful because by enabling Mrs H to execute the NTQ, PH failed to consider Mr H’s interest in his home when other options were available.
- The offer was unsuitable in consequence of Mr H being unable to afford his removal expenses.
- PH had not given Mr H the opportunity for a review of their decision that the offered property was suitable.
- Mr H was entitled to removal expenses under PH’s cash incentive scheme, which PH had refused to pay.
PH apparently refused to concede that it was a public authority as it was not bound by Part VI or VII Housing Act 1996. It maintained this position despite Weaver and despite it having a common housing register and common allocation policy with Tower Hamlets. There is no finding on this point in the judgment, but it appears to proceed on the basis that PH were a public authority.
PH’s further argument was that Mr H’s argument meant that any offer would be unsuitable unless it paid removal expenses, which payment it was not in law required to make, because Mr H was not a tenant following the NTQ.
Mr H argued that his case had been considered by a Tower Hamlets Housing Management Panel and as he had ‘scored’ extenuating social need or emergency priority, accommodation had to be both reasonable and suitable as PH were acting in concert with the Local Authority and utilising Part VI Housing Act 1996. Further, he was therefore entitled to a review of a decision that an offer was suitable and reasonable if he notified PH that it wasn’t.
On the ‘Larger to Smaller Cash incentive’ scheme, Mr H submitted that PH had misled itself by applying a literal construction of the terms of the scheme, but accepted that the scheme only applied to tenants.
On the issue of suitability, the Judge at first instance was right to find that the incentive scheme did not apply to Mr H as he was no longer a tenant. Mr H was not acting reasonably in rejecting the offer as unsuitable because he could not afford the moving expenses. PH was not acting unreasonably or disproportionately in refusing to assist with the removal expenses and PH had taken his medical condition into account in the offer made.
For these reasons the first instance Judge was right to dismiss the public law defences. Permission to appeal refused.
The conclusion to this judgment may seem a little cursory in this note, but then it does in the judgment. There seem to be arguments acknowledged as raised, for instance on the unlawfulness of the NTQ or the offer being made under Part VI and therefore subject to review, which are not addressed in findings. This somewhat frustrating as it is hard to tell how the arguments were considered and why rejected. One presumes pressure of time on a permission hearing was involved.
As we noted before, the rule in Monk will have to go to the Supreme Court and/or ECtHR. The rumour is that permisson is to be sought in Wilson is to appeal to the Court of Appeal and presumably on the basis that a further appeal to the SC will be needed. Howe has reached its end in the domestic courts. If we hear anything further on it, we’ll pass it on.
*For anyone wondering, the title is indeed Monk related.