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Unlawful eviction and harassment

Doomed, Doomed I tell you.

As an illustration of how complex housing law has become, and how difficult for a litigant in person, comes Sheppard v London Borough of Richmond-Upon-Thames [2012] EWCA Civ 302.

This was a failed permission for second appeal to the Court of Appeal, following a failed s.204 appeal to the County Court. Ms Sheppard acted in person. She had applied as homeless to LB Richmond following her eviction from a private tenancy. A month later Richmond found her intentionally homeless on the basis that her eviction was due to persistent refusal to allow gas safety checks.

After a failed review, Ms S appealed to the County Court. Her stated grounds were:

(1) Breach of Statutory Duty
(2) Inadequate Enquiries
(3) Inadequate Statutory Review
(4) Breach of Article 3 & 8(2), Human Rights Act 1998
(5) Breach of S.21 of the Race Relations Act 1976
(6) Made no assessment
(7) Failed to provide suitable accommodation

The Circuit Judge summarised, or translated, this as follows:

First, whether the council had failed to carry out its statutory duty to provide emergency accommodation under section 188. Second, whether the council made sufficient inquiries given that their decision was made in a time period shorter than the maximum allowed, 56 days. Third, whether the council had failed to comply with Regulation 8(2) of the Review Procedures Regulations. Fourth, whether the council had acted in breach of Article 3 and/or 8 of the European Convention on Human Rights. Fifth, whether the council was in breach of section 21 of the Race Relations Act 1976. Sixth, whether the council failed to make a proper assessment of Ms Sheppard’s circumstances. And seventh, whether the council should have provided suitable interim accommodation.

The Circuit Judge found against her on all grounds. Ms S applied for permission to appeal to the Court of Appeal.

Upholding the Circuit Judge’s decision, Lewison LJ held:

1. Provision of interim accommodation under s.188 was a discretion not a duty and the court did not have jurisdiction to make decisions on this, save for limited judicial review grounds

2. The 8 weeks for a s.202 review decision (under Review Regulation 9) was clearly a maximum, a quicker decision per se was perfectly reasonable.

3. Regulation 8(2) ‘minded to’ notices were only required where there was a deficiency or flaw in the original s.184 decision found by the reviewing officer. That was not the case here, so reg 8(2) did not apply.

4. “The fourth ground related to alleged breaches of Articles 3 and 8 of the Convention. Article 3 prohibits torture and Article 8 requires respect for a person’s home. Ms Sheppard’s argument is that the combination of these two articles means that she is entitled to be housed by the council, and that any order of the court requiring a person to leave accommodation where there is nowhere else for her to go is unlawful because of the provisions of the Vagrancy Act and the laws of trespass. However, the courts have consistently held that Article 8, even combined with Article 3, does not require the state to provide a person with a home. In my judgment, therefore, the judge was right in rejecting that ground of appeal.”

5. There was no evidence of discrimination and, although Ms S alleged that the Judge had discriminated against her too, there was no evidence of that either.

6. On the assessment of need, this was a matter for the Council. Ms S asserted that she had been unlawfully evicted, but the Council “does not perform the function of an appeal court, scrutinising judgments of the county court. The local authority must act on what the court has done. It is entitled to rely on the court order, and is not required to go behind it.” If Ms S was unlawfully evicted, then she could have claimed for re-entry.

Ms S asked for a stay of eviction, but the warrant had already been executed. While a setting aside of the possession order was within the court’s powers that would be on the rare grounds of fraud or oppression.

And finally, the appeal was in any event academic, as Ms S now had a private sector tenancy as was no longer homeless.

Comment
Ms S clearly considered she had grounds based on her reading (and indeed a straightforward reading) of relevant statute, but any housing solicitor or advisor could tell her that none of them would stand up. There is a gulf between a ‘common sense’ lay reading of much housing statute, let alone human rights law, and what the lawyers know that is very wide and will probably remain so. But there will be more and more litigants in person in such doomed appeals.

That said, Lewison LJ and presumably the Circuit Judge, might have been on shaky ground in asserting that the council could rely on the possession order in 6. above. If it was a s.21 possession process, then the Council would be very much required to go behind the possession order in any assessment of intentionality.

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.

2 Comments

  1. cjr1968

    The LA had made copious investigations with the landlord who had evicted her having previously sought an injunction requiring her to allow gas inspections, committed her to prison for failing to allow gas inspections […] Her appeal was also academic as she had obtained accommodation by the time of the permission hearing.

    Reply
  2. kris

    My experience (practice and teaching) is what separates the girls from the women/men from the boys is the ability to apply the law to a specific set of facts. Our Appellant here had a mountain to climb in understanding the law in the first place.

    On top of that, she ran her own case. If a lawyer who instructs himself has a fool for a client, what are the odds a litigant in person will be able to acquit themselves well?

    I don’t know if the Appellant had the benefit of Legal Aid. Perhaps she did and her former solicitors advised her of her slim prospects and she decided to go it alone.

    Even if she was not eligible for public funding, it was open to her to pay for a fixed fee written advice – which is something I did at a very reasonable rate when I worked at a legal aid firm.

    She could have also gone to the Toynbee Hall’s free legal advice clinic where there is a dedicated Housing night on Thursdays – and a Women Only session on Saturdays.

    I have no idea what this Appellant’s thought processes were – but I can say it’s hardly surprising that in the solicitors’ profession race to the legal services as a commodity bottom of the supermarket shelf, clients fancy their chances in a DIY job.

    Reply

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