Well, You Needn’t*

Poplar Housing and Regeneration Community Housing Association Limited (Poplar Harca) v Stephen Howe [2010] EWHC 1745 (QB)

When we reported on Lana Wilson v London Borough of Harrow [2010] 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 [1992] 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 [2010] EWHC 666 Admin that

There is an obvious conflict between the Strasbourg jurisprudence and our own

However, following Husband v Solihull MBC [2009] EWHC 3673 (Admin) and Wandsworth LBC v Dixon [2009] 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 [2006] 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.

Held:
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.

Comment
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.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All, Possession and tagged , , , , .

10 Comments

  1. If ( and don’t take this as a big hint that this is what the SC is going to find) a proportionality defence is available in a Monk case – how then would the rule itself be in breach of Art 8 ? I assume it is on the basis that deprivation of security is itself an interference that requires justification

  2. By way of a postscript, before judgement was handed down in Howe, the judge was invited to consider the decision in Wilson and to reconsider her decision to refuse permission. The judge appended a short note to her judgement stating that she did not understand why permission was granted in Wilson and that it remained inappropriate to grant permission in Howe.

  3. An application in Howe has now been made to the ECHR. I have recently been speaking to the solicitor for Mr Dixon, who has done likewise and who tells me that she has heard nothing from the Court of any substance even after several months of waiting. I do not therefore hope to hear anything soon but I’ll post whatever I find out.

  4. The wait wasn’t quite as long as I thought it would be. Despite the many thousands of applications before the ECHR, a single judge decided last month that there was no appearance of a violation of Mr Howe’s human rights and declared the complaint inadmissible. I immediately checked with Mr Dixon’s solicitor whether she had heard anything and they are still waiting for a decision from the court.

    • Thanks Simon. That is perhaps not surprising but is disappointing. We’ll have to see what happens when the proportionality defences to Monk kick in.

  5. I wonder if anyone knows whether there are presently any cases before the appellate courts in which the argument that the rule in Monk itself breaches Art 8 is being run. I can imagine there are lots of cases where an Article 8 defence of the ‘personal circumstances’ type is being run for occupiers left in premises after the service of an NTQ by the departed joint tenant, but I’d be keen to hear whether any of wholesale attacks on the rule are still ongoing.
    Cheers

    • I had a case where the Local Authority had solicited the other (departed) tenant’s notice to quit. We were running it partly on incompatibility with Art 8 lines and it rather had appeal written all over it, either way. But unfortunately it settled. I don’t know of any running at the moment and would be very interested to hear.

  6. That sounds exactly like two or three cases I know…

    None even at trial yet mind you. Will keep you posted if any ever get anywhere.

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