In years to come, we may all wonder what all the fuss was about, but Tuesday’s judgement in R (Public Law Project) v the Secretary of State for Justice  has provided some relief and not a little amusement to legal aid practitioners girding themselves for yet another grim landmark in the legal aid story: the residence test.

The test, to recap, is intended to exclude from a number of publicly funded services (including housing) those individuals who are not lawfully resident in the UK, Channel Islands, the Isle of Man or a British Overseas Territory and have not at any time been lawfully resident for a period of 12 consecutive months with no more than 30 days absence in that period (unless the individual is less than 12 months old or is a category of asylum claimant).

The MoJ’s position on the test was that the government was entitled to implement it by means of delegated legislation (the LASPO Act  2012 (Amendment of Schedule 1) Order 2014), relying in particular on s.9(2)(b) of LASPO (‘The Lord Chancellor may by Order vary or omit services’ in Part 1 of Schedule 1 of the Act) and s.41(2)(b) (Orders ‘may make provision by reference to services provided for a particular class of individual’). Those who find themselves excluded from Part 1 could nevertheless make an application for exceptional funding under s.10 if they could demonstrate a breach of their ECHR or EU rights.

PLP’s challenge to the Order was that it was, firstly, outside the powers permitted to the LC under LASPO and secondly, that it was discriminatory.

Moses LJ gave the lead judgement of the Court and reminds us (at para.37) that Para.1 of Sched.1 of LASPO aims to identify those individuals who have the greatest need for civil legal services. No other criterion is to be found in the statute and the LC cannot vary or omit services which depart from this primary objective (para.40).

So here was the first problem for the MoJ: if legal aid was now only to be targeted at those with a ‘strong connection with the UK’ (Transforming Legal Aid: Next Steps 5/9/13), this was not the express purpose of LASPO. It would therefore be a contradiction to say that those with the greatest need could still be excluded from services because they were not resident in the UK. The statutory provisions on which the MoJ were relying were supplementary to the Act and could not contradict its purpose (e.g. if certain services were no longer needed, they could be omitted, definitions such as domestic violence could be updated and so on).

Moses LJ held that the Order was ultra vires and that the test could not be introduced by secondary legislation.

The Court also had no trouble in finding that the Order was discriminatory and it is worth setting out para.60 in its entirety (if only to explain the title of this post):

1. It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP [2011] 1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14″. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013). Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :

 

“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?

And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).

The question at this point was whether the discrimination was lawful and justified. Again the MoJ’s case foundered on the argument that the government was not under a duty to provide legal assistance to those who failed the residence test and that it was akin to a welfare benefit. Following Stec v UK and R (Carson) v SSWP, it was settled law that the allocation of state resources was a matter for Parliament and the government and not the Court.

But having already decided which category of cases reached the required threshold under Schedule 1 to justify taxpayers’ subsidy, it was the Court’s view that no comparison could be made with those individuals who did not meet the conditions of welfare benefit entitlement. Those who failed the residence test, to repeat, still fell into the category of those in the greatest need under LASPO.

Discrimination could not be justified by reference to cost saving (para.82) or public confidence in the justice system (para.84). As Moses LJ scathingly expresses it: “Feelings of hostility to the alien or foreigner are common…in the context of a provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”

So whether viewed from the point of view of equal treatment under the common law or Art 14 coupled with Art.6, there was no lawful ground for discriminating between those in the greatest need for legal services under Schedule 1 of LASPO.

Comment

The MoJ has quickly indicated its intention to appeal the High Court’s decision and the Lords’ motion booked for later this month has been cancelled pending the appeal.

The LAA has invested a considerable amount of time in readiness for the test’s introduction on 4/8/2014, with online training modules and guidance for practitioners. In this respect, it was important for the Court to highlight the more insidious aspects of the test (e.g. at para 30), namely its potential to exclude those who would otherwise pass the test but for the onerous evidential requirements (a dossier of immigration documents, 12 months bank statements to demonstrate continuous residence etc.).

The MoJ conceded that the exceptional funding application form was too unwieldy for all applicants, let alone non-residents, so it is clear that some thought will be required before the residence test re-appears in another guise, whether in primary legislation or otherwise.

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Dunfermline Building Society v Ghana Commercial Finance Ltd & Ors (2014) QBD (Merc) 16 July 2014 [Not on Bailii. Lawtel note of extempore judgment.]

Regular readers will know of our interest in Mr Dharam Ghopee (or Gopee), our very favourite illegal money lender to vulnerable individuals  at hugely extortionate if unenforceable rates. It appears that as well as skating on extremely thin ice with the Mercantile Court (to the point where all possession cases, by all his companies are either struck out or set aside), Mr Ghopee has been pursuing other litigation against relatively bona fide lenders (presumably over possession and charges) on behalf of his companies.

And just as in the Mercantile Court, the distinction between Mr Ghopee (or Gopee) and his many and various companies is crumbling.

In this case, it appears Mr G had brought a claim as Ghana Commercial Finance Ltd (and maybe other companies under Mr G’s control).  The claim had failed. Horribly failed such that “the substantive proceedings had been hopeless on the merits and ought never to have been brought” and summary judgment for Defendant given  Dunfermline Building Society, the erstwhile defendant, brought proceedings for costs against Mr Ghopee (or Gopee) personally.

HHJ Mackie QC,  (for yes this was heard as one of the Mercantile Court cases under HHJ Mackie QC, who by now knows Mr Ghopee’s operations intimately),  was not impressed by Mr G’s arguments that he should not be personally liable as there was a clear distinction between him personally and the company (or companies) as the benefit of any litigation inured to the shareholders.

The Court held:

Ghopee was inextricably bound up with the claimant’s fortunes; it was impossible to ignore that Ghopee was connected with a number of companies in all of which he had played much the same role. The substantive proceedings had been hopeless on the merits and ought never to have been brought. In reality there was no distinction between Ghopee and the Claimant and if there was any distinction, it was not sufficient to merit not making the order sought in all the circumstances.

So, Mr Ghoppee was found personally liable for the costs of this case. And his room for manoeuvre gets ever smaller…

The post Ghopee. Hopeless. appeared first on Nearly Legal.

There has been a lot of noise about the Lib Dem’s change of position/u turn on the bedroom tax announced on Wednesday. From out of that noise, it has been possible to glean a little detail about what Nick Clegg, Danny Alexander and the Lib Dem leadership are proposing as their position. In particular, this Channel 4 news interview with Danny Alexander repays watching. (Apart from the fact that it is a spectacular car crash, in which Danny Alexander tries and fails to cope with the point that everyone knew, before the bedroom tax was introduced, what the effects would be, so trying to rely on the ‘now we know’ DWP report as a scales from the eyes revelation is a bit, you know, pathetic).

(Interview is here if not displayed below)

So, what are the Lib Dems proposing?

1.  Nobody to face the bedroom tax unless they refuse an offer of a ‘suitable’ smaller property.

2. An exemption for disabled adults. But while Danny Alexander in the Mirror said “Disabled adults should be treated the same as disabled children, by permanently exempting them”, it turns out that Danny Alexander did not understand his government’s current policy. What the Lib Dems apparently mean is an exemption for people who need an extra bedroom for reasons of medical disability, but that is not the current position for disabled children, so who really knows? 

3. That is it. (oh, except for a new duty on social landlords to “manage their stock more effectively so more people get put into the right home”. Because currently they just put people in willy nilly, caring not about bedrooms, their stock or policies).

The spin is that this would practically exempt almost everyone, unless until they were offered a suitable downsized place and refused it. And thus, the Lib Dems announce, being equivalent to the LHA provisions.

But for every housing professional, let alone housing lawyers, these proposals are enough to raise eyebrows.

Let us start with this ‘offer of a suitable smaller property’. An offer? By and large social landlords don’t make offers on downsizing transfers. People bid, with allocated priority, on choice based letting schemes, as a rule. So there is no ‘offer’ to be refused.  Are we to have a whole new scheme of downsizing ‘offers’? Or limits on bidding and not accepting? That would be a big change for CBL schemes.

Even if there was an offer (and social landlords changed their transfer practices to include direct offers, with all the related costs in doing so), what does ‘suitable’ mean? Are we talking importing the Part VII Housing Act 1996 version of suitability? And with it the review and county court appeal process? Or would it be appeal to the FTT on the basis of suitability – I have to think surely not as that is an appeal to the FTT is on a benefit decision, not the landlord’s decision on suitability on an offer of a smaller property. If not akin to Part VII, what is the definition of suitable? And how can the landlord’s decision be reviewed or challenged? And can the benefit authority actually rely on the landlord’s decision as to a suitable downsizing offer in law? You can see the judicial reviews lining up…

And then a disability exemption, but on what terms? Given Danny Alexander’s utter ignorance of the current state of exemption in relation to disabled children, (For anyone not aware by now, like Danny Alexander only not in charge of Government policy, this is roughly Yes for children who cannot share a room by reason of disability - like Burnip/Gorry, but No for children who require an overnight carer – Rutherford, for example), what hope is there of a cogent definition of ‘needs an additional bedroom by reason of disability’. I suspect a whole fresh round of FTT appeals would promptly result, and probably judicial reviews too.

Then there are the wider repercussions, as if an entirely new administrative process for both landlords and benefit authorities wasn’t enough. Councils’ transfer and allocation policies would need to be revised to incorporate the new rules. A lengthy and expensive process.

Oh, and then there is this supposed new duty to manage allocation more effectively. Whatever that might mean beyond pure PR guff. Social landlords will have to deal with it, despite it being deeply unclear what the ‘duty’ would amount to and how enforced.

I don’t think this has been thought through, not one little bit, though clearly planned by the Lib Dems for weeks if not months. It is a hugely administratively expensive, legally dubious, challengeable set of tweaks to a failed policy.

As a face saver for supporting the policy in the first place, it would be very expensive indeed. And, as Danny Alexander keeps telling us, these are straightened times. Are the Lib Dems seriously asking us to pay to cover their embarrassment? Scrapping the bedroom tax would frankly be cheaper, and the better practical and legislative option.

And as a political move? Did they really not see coming the inevitable Labour votes on scrapping the bedroom tax, and the sheer public embarrassment of Lib Dems having to vote, yet again, for the current regulations? It was my first thought on seeing the Mirror headline.

Nevertheless, there is significance here. Whether it will have any effect in the current parliament is something to wait for, but now at least two of the main parties are against the bedroom tax as it stands. And who knows what the Lib Dems would vote for after the election. They are easily bought, after all. Oh and Simon Hughes MP told the BBC he was against the bedroom tax all along.  Funny that he never voted against it, ever.

The post Reforming a bad policy, badly. appeared first on Nearly Legal.

In O’Brien v Bristol CC [2014] EWHC 2423 (Admin) [heard at the RCJ instead of in the Bristol admin court?  Not on Bailii yet but we have seen a transcript], a range of issues arose out of the council’s decision to seek and obtain a possession order of an unauthorised encampment below the M5 at Avonmouth.  The real aim of this judicial review, though, was not the possession order, but the council’s decision not to allow the O’Brien’s and their four caravans to return to the temporary transit site, which had available pitches.  The O’Briens had stayed at that temporary site for the allowable period (13 weeks) and had been entitled to overstay on the ground of exceptional circumstances for a period.  They then moved off and ended up at the M5 site.  The O’Briens had also made a  homelessness application and been offered interim bricks and mortar accommodation.  The council’s officer had considered whether to allow the O’Briens back on to the transit site but decided against it for what would have been an indefinite period and which would have set a precedent for allowing extended stays in breach of planning controls.  The O’Briens’ were unsuccessful on the merits although Burnett J did give permission to bring the judicial review

There are a couple of interesting points of law amongst the quite hazy facts (and I can’t let it pass that the council officer doesn’t seem to have taken contemporaneous notes of his decisions).  The first point of interest is that this case extends Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925 to a situation where the council did, in fact, have other authorised sites, albeit temporary, available to it.  The second point is that, in Codona (which, of course predates Pinnock), Auld LJ had elided Wednesbury and Article 8.  I’m not sure that this elision is really sustainable and it kind of permeates O’Brien too, despite Burnett J’s acceptance that they are analytically distinct questions.  The problems of proportionality are, of course, legion and for recent interesting academic discussions, Julian Rivers’ pieces in the Modern Law Review and Cambridge Law Journal are well worth a read.  In O’Brien, though, Burnett J. found that whichever test was advanced, the O’Brien’s were unsuccessful.  The haziness on the facts can’t have helped them.  The Article 8 defence to the possession claim of the M5 site seemed bound to fail, in essence because they had not stayed there long enough for it to be their “home” for Article 8 purposes and, in any event, as Burnett J. put it, “As the authorities demonstrate, in these circumstances a trespasser has a difficult task to demonstrate disproportionality” ([60]).

The other interesting point comes right at the end of the judgment about interim relief pending an application for permission to appeal to the Court of Appeal.  It was submitted, perhaps boldly, that the O’Briens be entitled to return to the transit site pending consideration of such an appeal for up to 14 or 21 days.  That application was refused because it would in effect have given the O’Briens the relief they sought albeit for a limited period.  In any event, the application to enforce the possession order would take a few days to sort out at least.  Nice try by the barrister for the O’Briens, Joseph Markus.

One last point – this claim could have been resolved in the county court through the grounds being presented as usual defences to possession proceedings but, of course, legal aid is no longer available to defend that kind of claim (although the O’Briens did have the benefit of being represented, it seems, at the county Court by the inestimable Will Stone of the law centre – at least that law centre hasn’t shut its doors yet).

The post Trouble out west appeared first on Nearly Legal.

Akhtar v Boland [2014] EWCA Civ 943

Just a quick note on this one, after a conversation with a colleague reminded me I hadn’t written it up.

The details of the case need not detain us, it was a PI case which had been allocated to the small claims following admissions by the Defendant. The Claimant appealed on the basis that it should have been allocated to the fast track, and then appealed to the Court of Appeal. The appeal was unsuccessful in the Court of Appeal. The Defendant sought its costs of that appeal.

The Court of Appeal notes the CPR provisions:

CPR 27(14) provides, so far as relevant:
“(1) This rule applies to any case which has been allocated to the small claims track.
…
(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses including those relating to an appeal, except –

And

CPR 52.9A provides:
“(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to-
(a) the means of both parties;
(b) all the circumstances of the case; and
(c) the need to facilitate access to justice.
(3) if the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).”

However, the Supreme Court Practice (White Book) at 27.14.1.1 states:

“Rule 27.14 (2) applies the “no costs” rule to first appeals to the circuit judge. However, in his review on civil litigation costs Jackson L.J. pointed out that second appeals against small claims decisions in the Court of Appeal are “subject to full costs shifting” (Ch.34 para 3.3). Rule 52.9A was introduced to mitigate that; …”

Cutting to the chase, the Court of Appeal held that CPR 27(14) applied to all appeals, not just a first appeal. The note in the White Book “is incorrect”.

So, any appeal of a small claim, no matter how far the appeal goes (Court of Appeal and, I would suppose Supreme Court) will be on a small claims (no) costs basis.

As the White Book note shows, this was not the received wisdom, and worth bearing in mind. Also, an expensive exercise in pyrrhic victory for the Defendant in this case. For Respondents in such appeals, it will be an exercise in judgement as to the value of detailed opposition to any appeal.

The post Pyrrhic victory corner: Costs on appeal from a small claim appeared first on Nearly Legal.

The Appellant tenant in Spencer v Taylor [2013] EWCA Civ 1600 (our note here) has had permission to appeal to the Supreme Court refused, on the grounds that it did not raise an arguable point of law.

This means that the Court of Appeal decision stands. Where an assured shorthold tenancy has had a fixed term and a statutory periodic tenancy has arisen, there is no requirement to use a s.21(4)(a) notice, or have a date of expiry at the end of a period of the tenancy. A section 21(1)(b) notice with two clear months notice is adequate.

Where a tenancy was periodic from the start, or where the tenancy provides for an initial fixed term, then a periodic tenancy thereafter (a contractual periodic) a s.21(4)(a) notice will still be required, I believe.

We should have a more detailed post on Spencer v Taylor coming along in a few days, as there was much about the Court of Appeal judgment that didn’t make a great deal of sense on first reading, but does with background.

The post Spencer v Taylor – section 21 news appeared first on Nearly Legal.

Further to my post here on council tax liability for statutory periodic tenancies, I have heard about another Valuation Tribunal case, this time involving a contractual periodic tenancy, and also oddly involving this blog.

The issue was council tax liability for a period where a tenant had left a property before the tenancy was ended and the tenancy was a contractual periodic. The tenancy agreement specified a 12 month fixed term followed by a monthly periodic.

The Council, Shropshire Council (to whom we will return below) considered that this meant that the landlord was liable for the Council tax for the relevant period, as per CT v Horsham District Council (HB) [2013] UKUT 617 (AAC).

The landlord was clearly annoyed at this and appealed, for roughly a month of CT liability.

The Valuation Tribunal (Decision here, appeal no 3245M131738/176C ) decided, quite rightly in my view, that a contractual periodic tenancy, following on from a fixed term, was a continuation of the same tenancy. The tenancy was, contra Shropshire’s arguments, for a sufficiently certain period and, given the tenancy agreement , was clearly for a period of over six months. Thus, the tenant’s interest was for over six months and the tenant was liable for the council tax, not the landlord.

While this clarification is useful, what amuses me about the case is that Shropshire included Nearly Legal and my earlier post in their evidence relied on in support of the case. Shropshire put it this way:

Aside from the sheer nonsense of putting NL material in as evidence on any legal position, I don’t think that does actually support Shropshire’s case, even in this edited version. But what raised my eyebrows is the very selective editing that has gone on. Those are my words, but the ellipsis completely changes the significance of the last sentence. What I actually said was

So, the Upper Tribunal held that the tenant is not liable for Council Tax as ‘owner’ if they are on a statutory periodic tenancy (or any tenancy of a term of less than 6 months) and are non-resident. The liability will fall on the next ‘owner’ up the chain with a material interest and a longer than 6 month term, usually the landlord.

The Claimant in this case was found not to have received an excess of CTB. Unfortunately, that was because she had no council tax liability and should have received no CTB at all.

As far as I can see, this should also apply to any secure or assured social tenant on a weekly or monthly periodic tenancy. Once they are no longer resident, even if the tenancy continues (as a contractual tenancy or otherwise) they are not liable for Council Tax, but the landlord is.

The reference to a contractual tenancy in the last line was to a secure or assured tenancy, periodic from the very start, where security of tenure had been lost through tenant not being resident. Shropshire quote and emphasise it as a reference to contractual tenancies in general, seeking support for their position on the contractual periodic in this case.

Naughty Shropshire.  Don’t go selectively quoting me again.

The post Missing tenants and missing sentences: Council tax and periodic tenancies appeared first on Nearly Legal.

We have already reported briefly on the Supreme Court decision to refuse permission to appeal to the tenant in the case of a Spencer v Taylor on the grounds that no new points of law were raised.

As the solicitor acting for the landlord in the Supreme Court I have had the chance to see rather more of the papers and so a more detailed discussion of some of the points that came out of this would be interesting.

Some Background
The original section 21(4)(a) notice served by the landlord’s original solicitors contained a date that was incorrect. The notice also contained a saving provision of the type approved in Lower Street Properties v Jones. The tenant argued in seeking permission to appeal to the Court of Appeal that the presence of the date and the saving provision meant that the notice was defective because it effectively gave the tenant two possible dates by which they had to leave and so it did not “make clear” the date that possession was sought. The Court of Appeal had already refused permission to appeal on this point some time ago in the case of Elias v Spencer (no relation!). However, in this case a key distinction was drawn. In Elias v Spencer the saving provision started with the phrase “or if different” whereas in this case the saving provision merely commenced “or”. The distinction drawn therefore, which led to the appeal being permitted at the CA, was that in Elias the saving provision was written in such a way as to make clear that it overruled the date if there was a discrepancy. In Spencer no such hierarchy existed and the notice was therefore unclear.

The Court of Appeal
This same argument was made by the tenant at the CA and formed the bulk of the submissions for both sides. As most readers will know (and you can read up on it in our report here) the CA went in a totally different and unanticipated direction and held that the original notice was valid under s21(1)(b) and not under s21(4)(a). As a backstop Lewison LJ also dealt with the substantive arguments made to him and held that the notice was still clear even though the date and saving provision could be seen as proposing two alternative dates.

The Supreme Court
The argument in the Supreme Court largely became one over policy and the parliamentary intent. The tenant was arguing that the decision of the CA could not be what parliament had intended. Parliament created two notice mechanisms under s21. The (1)(b) mechanism and the (4)(a) mechanism. At the time of creation the Housing Act 1988 required that an AST be for 6 months and so the intention of the s21(4)(a) was not to deal with tenancies that were periodic from the start but specifically to deal with tenancies that had become periodic before service of the s21 notice. This was undoubtedly correct up to a point. However it is a bit more complex than this.
S21(4)(a) is actually something of an error. The original version of the Housing Act 1988 contained just one notice under s21, the 1(b) notice. The (4)(a) notice was introduced at Commons committee stage largely because the government of the day did not really understand their own legislation. The belief was that a notice given during the periodic tenancy would need in some manner to comply with the common law provisions applicable to notice to quit given in periodic tenancies. Notices to quit had already been ruled as of being no effect in s5 of the new Act and so some method was perceived as necessary to avoid this issue. Hence the introduction of s21(4)(a) which was intended to mimic the notice to quit process so that it would satisfy the common law issues and also to fit within the s21 process.
The reason that Parliament was wrong was set out in the case of MacDonald v Fernandez where no less a personage than Hale LJ (as she then was) held that an s21 notice was not a notice to quit and hence that the s21 regime fell outside the common law notice to quit regime.

Common Law or Statutory
Much of this problem is due to the real inconsistency that operates when considering Housing Act 1988 tenancies. Are they statutory or common law but with a statutory overlay? Parliament clearly must have felt that they were common law but with a statutory overlay as they felt there was a need to have a section 21 process that also complied with the common law notice to quit process. They are also treated this way in Scotland where a section 33 notice (the s21 equivalent there) must be supplemented with a common law notice to quit to prevent the operation of the common law process of tacit relocation.
However, the Courts have been less certain. MacDonald v Fernandez appeared to treat s21 as entirely divorced from the notice to quit process and so assumed that there was no common law component. Likewise the Court of Appeal in Aylward v Fawaz treated a notice under s21 as also terminating the contractual component of a tenancy by implicitly operating the contractual break clause therein.
Resolving this conundrum once and for all would have been an attractive reason for the Supreme Court to hear this matter. However they did not agree.

Time
The tenant also suggested that the s21(4)(a) process allowed tenants in a periodic tenancy a little more time to find alternative accommodation. I am not sure that this was their best argument but it does not seem to be supported by the Parliamentary debates. The issue of time was raised in the Lords where a “use it or lose it” element was suggested so that if a landlord did not use the s21 notice promptly they would have to serve a fresh one, in a similar manner to a s8 notice. This was rejected and it was stated by the government that a tenant who had been presented with an s21 notice would have had their two months notice and would therefore be aware of the precariousness of their position.
This approach is clearly what was intended by Parliament and this was very damaging to the tenant’s argument but it is a very hardened approach to take.

Further Appeals
The Supreme Court is clearly not convinced of the need to consider s21 further. The tenant sought to suggest that they should as it had not been considered but to no avail. There is no opportunity to take this further that I can see as there is no aspect of the tenants human rights that is sufficiently engaged to justify a further appeal. There have been no human rights arguments made so far and so making one now would require a fresh approach to the whole issue. Given the very wide latitude afforded to Parliament and that the Court of Appeal decision does appear to fit into the Parliamentary intent I am not sure that it would succeed.

Where We Are
The short position then is that an s21(1)(b) notice is a valid notice for any AST where then a pre-existing fixed term tenancy. This will mean a far more rapid turnover of eviction in periodic tenancies I suspect as some of the technical errors that landlords used to find themselves making have gone. It also means that cases such as Lower Street Properties v Jones, Church Commissioners v Meya, and MacDonald v Fernandez will become much less relevant in a lot of cases.
There are still some cases where s21(4)(a) has relevance. Periodic tenancies that have never had a fixed term component and fixed term tenancies that have become periodic by way of a contractual provision rather than the provisions of s5. Some social landlords create tenancies that are periodic from the outset and some private landlords use contractual periodic tenancies to allow for rent increase clauses to function in the periodic tenancy and to ameliorate the complex deposit effects of Superstrike v Rodrigues (at least until the Deregulation Bill come in).
Where an s21(4)(a) is used it is worth noting that the second part of the Court of Appeal decision is in fact obiter and so a saving provision that does not show a degree of hierarchy may not be valid. However, it would be a brave argument to run.

The post Spencer v Taylor- Some Analysis appeared first on Nearly Legal.

The title of this post lacks much creative input, but sometimes it’s better to be clear than amusing. The recent decision in Regent Wealth Ltd and others v Wiggins [2014] EWCA Civ 1078 is a clear reminder to practitioners to register notices under s.13, Leasehold Reform, Housing and Urban Development Act 1993.

An introduction to enfranchisement

In general terms, long leaseholders of flats are, if there are sufficient of them in agreement, entitled to acquire the freehold of the building containing their flats. They have to appoint a “nominee purchaser” who will carry out the enfranchisement process (normally, but not necessarily, a company that the participating tenants all have a share in). The process starts by serving a notice under s.13, LRHUDA 1993, setting out, inter alia, what they propose to acquire and at what price. The landlord has to serve a counter-notice which (again, in general terms) has to admit or deny that the right to enfranchise can be exercised and/or any counter-proposals (usually as to price). Then, if the dispute is as to entitlement to enfranchise, you go off to the county court to resolve that. If it is as to price, then off to the FTT/LVT with you.

Now, the 1993 Act doesn’t create any sort of statutory contract (cf the position under the Leasehold Reform Act 1967), so there is nothing to stop a landlord dealing with the property after service of a s.13 notice (e.g. by selling the freehold). The 1993 Act deals with this by letting you register your s.13 notice at the Land Registry (s.97, 1993 Act) and, if you do, subsequent dealings by the landlord (e.g. selling the freehold, creating new leases, etc) are void (s.19, 1993 Act).

There is also a power to amend a s.13 notice (with the permission of the court) – see Sch.3.

Facts

This case concerned a block of flats in Central London (Mayfair, no less). Mr Wiggins was the nominee purchaser on behalf of the participating tenants. This wasn’t a “normal” freehold/leasehold situation though, in fact, far from it. There are a quite bewildering number of intermediate leases (the “enforcer lease”, the “overriding lease”). Mr Wiggins had, however, managed to identify them all and claim them in the s.13 notice. A counter-notice was duly served. The s.13 notice was not registered at the Land Registry and the landlords duly granted yet more leasehold interests.

When Mr Wiggins found out about this, he was (I imagine) rather frustrated. The enfranchisement could proceed, but there would be leasehold interests he did not own. He could acquire them later, but that would mean additional cost. And so he hit upon the bright idea of applying to the county court to amend the original s.13 notice so as to include these new leasehold interests.

The county court judge allowed the amendment, and the landlords appealed to the Court of Appeal.

On appeal

The Court of Appeal allowed the appeal. The power to amend in Sch.3 can be used to claim additional interests not specified in the s.13 notice, but only if those interests actually existed as at the date of the s.13 notice. These new leasehold interests had not so existed at that time and so were not within the scope of Sch.3. Whilst one might think (and I’m not saying that the Court of Appeal did think this) that this was sharp practice by the landlords, it was important to note that Parliament had provided protections via ss.19 and 97. The lesson for all practitioners is register your s.13 notices.

The post Register your s.13 notices appeared first on Nearly Legal.

Aster Communities Ltd (formerly Flourish homes Ltd) v Akerman-Livingstone [2014] EWCA Civ 1081 (30 July 2014) is an extraordinary decision that will – if allowed to stand – have a significant impact on the day-to-day management of possession claims in the county court.

The Court of Appeal’s finding that Equality Act 2010 cases should, like Article 8 cases, be summarily assessed on the “seriously arguable” test must have come as a shock to those acting in the case. It certainly appears to have come as a shock to the Supreme Court, which granted permission to appeal the very next day.

Facts

Mr Akerman-Livingstone had a severe prolonged duress stress disorder (“PDSD”) and was described as a “very sick man” (paragraph 2). In 2010, Mendip District Council accepted a full homeless duty and secured him temporary accommodation with what later became Aster Communities Ltd, a housing association.

Mendip offered Mr Akerman-Livingstone permanent accommodation but he appears to have been unable to cope with what was involved. Eventually Mendip discharged their duty, a decision that, unhelpfully, was not the subject of a review or appeal. Mendip required Aster to bring proceedings to evict Mr Akerman-Livingstone but in defence, he raised the issue of disability discrimination and contended that the decision to seek possession was a breach of section 15 of the Equality Act 2010.

HHJ Denyer, sitting in the Bristol County Court held that, in the light of Aster’s aims in getting back possession of the property to comply with Mendip’s direction, Mr Akerman-Livingstone did not have a “seriously arguable” case that Aster had breached the Equality Act 2010 and granted an immediate possession order. Cranston J dismissed the appeal against that order and it was against this order that Mr Akerman-Livingstone appealed to the Court of Appeal.

Court of Appeal

The Court of Appeal (Arden, Black, Briggs LJJ) dismissed the appeal, finding that the approach to proportionality under the Equality Act 2010 was the same as that under Article 8 in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186:

27 In my judgment, the approach to proportionality under Article 8 in Pinnock and Powell is in fact the same approach as section 15 of the EA 2010 requires. The proportionality exercise is generally divided into three (or even four) steps but it does not require every step in the exercise to be carried out: the steps are cumulative and if the court finds that any one step is not met there is no need to go to the other steps. That is what in my judgment happened in Pinnock and Powell: the court went straight to the balancing exercise because the weight to be attached to the twin aims was almost overwhelming: it would outweigh any consideration based on Article 8 save in exceptional circumstances. The twin aims are equally valid in EA 2010 cases.

28 Section 136 of the EA 2010 [reversal of burden of proof] does not prevent this conclusion. Nor does it produce any different result from that under Article 8. Section 136 requires the applicant to show certain threshold matters, but this is no different from a tenant who relies on Article 8 having to show that the property is his home. These matters do not include the question of justification (see section 15(1)(b)), which is a proportionality exercise. Moreover, there is nothing in sections 15 or 136 of the EA 2010 to prevent the court from attaching weight to the fact that the housing authority has formed a view about how it should carry out its statutory duties and applying a less intense scrutiny to its decisions than it would apply in other contexts. Mr Luba submits that in Pinnock the Supreme Court laid down a “given” that, when seeking possession, a social landlord would not need to adduce evidence that it was performing its functions in relation to the allocation and management of its housing stock. He further submits that that “given” would not apply in a disability discrimination case. However, to say that there is no “given” in discrimination cases is simply to pre-empt the issue on this appeal.

29. Furthermore, there is no rational basis for saying that the weight to be given to the social landlord’s interest is somehow diminished where the tenant is relying on disability discrimination than where the tenant relies on Article 8. In both types of cases, the social landlord is pursuing proceedings in order to recover property that might be used to provide accommodation for other homeless people. Such properties are likely to be in short supply.

The Court further found that CPR r 55.8 permitted the summary disposal of possession proceedings as at the first possession hearing the judge could decide whether there should be a trial and so could perform the same role as it would do if it was hearing an application for summary judgment under CPR Pt 24.

There was no distinction, found the Court, between the LHA and a social landlord which is a housing association, and Aster could rely on Mendip’s functions to “outweigh” Mr Akerman-Livingstone’s interests.

Comment

The hasty grant of permission by the Supreme Court is a big red hand pointing to the flaws in this judgment and a sign that alarm bells are ringing as to its effects. (Flashbacks to Malcolm v Lewisham [2008] 1 A.C. 1399.)

One of the stated ambitions of the Equality Act 2010 was to “harmonise” the law across different practice areas (see Explanatory Note) and to “de-clutter” the  discrepancies that existed between, say, education and housing (see White Paper). To this end a single definition was given of each type of discrimination applying across housing, employment, education, public services and so on. The parachuting in of a housing law test from another context entirely to the summary assessment of discrimination claims is completely at odds with that intention.

And it is not as though this is an issue untroubled by authority. The House of Lords in Anyanwu v South Bank Students Union [2001] 1 W.L.R. 638 was clear that discrimination cases should not, except in exceptional circumstances, be struck out:

Lord Steyn paragraph 24

“… such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”

Lord Hope para 37

“I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.

In the employment context, the authorities are clear that where a ‘crucial core’ of facts is in dispute, it is an error of law, except in an “exceptional case” to strike out a discrimination claim: Ezsias v North Glamorgan NHS Trust [2007] I.C.R. 1126, CA.

The problem with the Court of Appeal’s finding is that it treats the facts of the case as being largely unimportant beyond the personal circumstances of the tenant and proceeds on the basis that proportionality is merely an exercise in weighing up the differing priorities against one another; hence the Court of Appeal’s finding that “a social landlord’s countervailing interest generally outweighs that of the tenant” and the conclusion that “for a tenant to succeed on his disability discrimination case he will have to show some considerable hardship which he cannot fairly be asked to bear” (paragraph 37). Damned with a faint concession Arden LJ finds that “the possibility exists that in rare cases, the discrimination defence may succeed” (paragraph 38).

However, as Anyanwu suggests, and as was argued on Mr Akerman-Livingstone’s behalf (in what was called the “target point”), disability discrimination claims focus on what the other party has done or not done, and it is that which is contended to be unlawful. It is aimed at ensuring that those made responsible under the Act (employers, landlords, those who run businesses and so on) act in ways that promote equality of opportunity. Accordingly, in a disability discrimination case, the support offered to a tenant, or not offered, the steps short of possession that were or were not considered are of crucial relevance.

Thus, in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 para 165 provides that in discrimination cases there should be a structured approach to the question of justification: “First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?” This is a test which emerges out of the European law directives that the Equality Act brings into effect and the European Court of Justice has found that justification will not be established under the directives if the same objective could be achieved by less discriminatory means: Kutz-Bauer v Freie und Hansestadt Hamburg (C-187/00) [2003] E.C.R. I-2741.

This third issue will always be fact sensitive including consideration of what support might have been provided, whether the duty to make reasonable adjustments has been complied with and whether the public sector equality duty has been properly explored. Indeed, in R (E) v JFS [2010] 2 A.C. 728 the Supreme Court got tantalisingly close to suggesting that where, as part of the public sector equality duty less discriminatory measures were not considered, a finding that measures were proportionate would not be made:  Lord Hope at [212]:

“There is no evidence that the governing body gave thought to the question whether less discriminatory means could be adopted which would not undermine the religious ethos of the school. Consideration might have been given, for example, to the possibility of admitting children recognised as Jewish by any of the branches of Judaism, including those who were Masorti, Reform or Liberal. … There may perhaps be reasons, as Lord Brown JSC indicates (see para 258), why solutions of that kind might give rise to difficulty. But, as JFS have not addressed them, it is not entitled to a finding that the means that it adopted were proportionate.”

Finally…

The Court of Appeal refused a stay pending an application to the Supreme Court on the basis that the head lessor had given notice to Aster; it was said that if they did not give up possession, the head lessor would be unable to sell, possible resulting in possession proceedings by the head lessor’s mortgagee and financial loss to the head lessor. Scant comfort was offered by the observation that if Mr Akerman-Livingstone was evicted, Mendip would owe him a duty under section 190 HA 1996.

The Supreme Court did however grant a stay pending determination of the appeal – the very next day no less. No doubt the Supreme Court recognised that Mr Akerman-Livingstone’s appeal would be of little benefit if he – a “very sick man” – was on the streets by the time the hearing came around.

The post Arguably Serious – Aster Communities Ltd v Akerman-Livingstone appeared first on Nearly Legal.

We have the first (to the best of my knowledge) Upper Tribunal decision on a bedroom tax appeal, and therefore one binding on First Tier Tribunals. While it is not on one of the large scale issues, such as room size, it is nonetheless potentially important for a number of tenants and offers a view of the Upper Tribunal approach to the Regulations.

SD v Eastleigh Borough Council (HB) (Housing and council tax benefits : other) [2014] UKUT 325 (AAC)

The issue here was whether the appellant met the requirements for an additional bedroom for an overnight carer under Reg B13(6)(a).

The property is a three bed house. The appellant lives there with her daughter, two other daughters having moved out. Eastleigh Council determined that she must pay the 14% in respect of the third bedroom despite the appellant having informed them that the room was used sometimes by an overnight carer for her.

The appellant suffers from severe eczema and severe asthma and receives the middle rate of the care component of disability living allowance (though not night care element, which we’ll come back to). Her appeal to the First Tier Tribunal was supported by medical evidence that she required overnight care ‘often’ or ‘frequently’, but unpredictably due to the nature of her condition.

Eastleigh decided that as she was not receiving the night care she did not have regular need of a bedroom for a carer. The matter went to the FTT, where the appellant for some reason did not attend. The FTT got itself in a bit of a tangle over the meaning of ‘regular’.

The term “person who requires overnight care” is defined in regulation 2(1) of the 2006 Regulations, as amended by regulation 2(2)(a) of the Housing Benefit (Amendment) Regulations 2010 (SI 2010/2835), which provided -

“‘person who requires overnight care’ means a person (“P”)-

(a) who-

(i) is in receipt of attendance allowance;

(ii) is in receipt of the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act; or

(iii) although not satisfying either paragraph (i) or (ii) above has provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care; and

(b) whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should-

(i) be engaged in providing overnight care for P;

(ii) regularly stay overnight at the dwelling for that purpose; and

(iii) be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home,

but ….”
[NB amended in April 2013, but amends not relevant to this case]

The FTT decided that the appellant was indeed a person in receipt of the middle rate care component of DLA, so satisfied (a)(ii). Whether she received the night care element was not necessarily fatal. But on the meaning of ‘regularly’:

Do the carers “regularly stay overnight”? The Regulations contain no definition of the word “regularly”. However, in normal English usage it denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even. It may not necessarily happen frequently; and hence it is not fatal to [the claimant’s] case that her award of Disability Living Allowance does not include an element for “night needs”.

While the appellant might have carers staying often, or frequently, the medical evidence was that this was at unpredictable days. So it could not be said to be regular, in the sense of reasonably even.

The FTT was not happy with its own decision, noting that this could well mean someone with frequent but unpredictable needs for overnight care would be excluded where someone with lesser but predictable and even overnight care would be included. In fact the FTT was so unhappy that the same Judge granted permission to appeal.

On appeal to the Upper Tribunal, Eastleigh again brought out the argument that the appellant not receiving DLA in respect of night care meant not regular overnight care, and added, one must trust more in hope than expectation, an argument based on Bolton MBC v BF (HB) [2014] UKUT 48 (AAC) [our report]. Eastleigh:

argues that that shows that the carer could sleep in a room other than a bedroom so that the requirement for an additional bedroom is not made out. In reply, the claimant asserts that she is entitled to a bedroom for a carer because it would not be reasonable to require a carer to sleep in another room and, if the local authority’s approach were correct, no-one would ever succeed in showing a need for a bedroom for a carer.

That argument based on Bolton, rightly, got short shrift:

In my judgment, the Bolton case is totally irrelevant to the present appeal. [...]. In substance the decision amounts to authority that, for the purposes of head (b)(iii) of the definition, a carer is provided with the use of a bedroom if he or she is provided with the use of a room in which to sleep. The context requires that approach to the definition in regulation 2. The context requires a different approach to regulation B13(5). In any event, Bolton is not authority for the proposition that any room in which a person could put a portable bed is a bedroom; it is at best authority for the proposition that a room that is actually used in that way may be a bedroom. The case is irrelevant to the present case because the room used by carers here is clearly a bedroom and there is no dispute on that point.

So did the argument about DLA night care:

whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the “night” attendance conditions cannot be determinative of the question whether claimant is a “person who requires overnight care”. That is not the effect of head (a) of the definition. A person who is entitled only on the basis of the “day” conditions satisfies head (a), but it is necessary to convince a local authority that care is required at night in order to satisfy head (b). However, there are several reasons why a person might satisfy head (b) without being entitled to the care component of disability living allowance on the basis of the “night” attendance conditions. One is that the requisite degree of attention or supervision must be required “throughout” the period of an award of disability living allowance (see the opening words of section 72(1) of the 1992 Act) and not merely “regularly” during that period. Another is the lengthy qualifying period before the basis of an award can be altered (see section 72(2)). A third is simply the possibility of a claimant not having made an appropriate application for supersession of her award of disability living allowance. The basis of an award of disability living allowance may therefore be relevant evidence but it cannot be conclusive.

That left the key issue of what ‘regularly’ meant.

The First-tier Tribunal held that the word “denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even” but the judge was unhappy with that construction because whether or not the need for overnight care was regular in that sense might not reflect the relative extent of the need. In my judgment, that difficulty suggests that the word does not, in this instance, have the meaning ascribed to it by the First-tier Tribunal. The word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision than that adopted by the First-tier Tribunal. Whether the intervals between a person’s need for overnight care are uniform or not is, as the First-tier Tribunal pointed out, immaterial to his or her need for a bedroom in which to accommodate a carer.

What the legislation is concerned with is whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose. A bedroom cannot be switched on and off and, if the object of the legislation is to encourage claimants to move to smaller accommodation or take lodgers into their spare rooms, it is to be presumed that whether overnight care is regular or not has to be considered over a fairly long period. Moreover, there is nothing in the word “regularly” that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion. That may be why that word was chosen. It does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights. Whether a carer must “regularly” stay overnight must be considered in that context.

Appeal allowed. The appellant fell under B13(6)(a) and should be allowed an additional bedroom.

Comment

While the numbers of people directly affected by this judgment – which is binding on First Tier Tribunals – may be relatively small, the UT’s approach to defining ‘regularly’ is clearly helpful for those whose overnight care needs are erratic, or unpredictable, but even out over a long period.

It is also very helpful in making clear that a bedroom may be required even if overnight care is only needed on a ‘minority’ of nights – so no requirement that overnight care be for more than 3 nights a week, for example.

The clarity on the non-decisive nature of any overnight care element in DLA is also welcome.

While Eastleigh’s attempt to use Bolton to argue that a carer didn’t actually need a bedroom might be charitably described as cheeky (or non-charitably described as arrant nonsense that should never have been argued), at least that particular red herring has been disposed of. (Of course, the logic of Bolton would be that even if the carer had stayed in another room, that room would have been a bedroom, so the tenant would be entitled to HB for an additional bedroom, even if it wasn’t the actual bedroom.)

What is interesting is that the UT is well prepared to take a practical view-point on the specific facts. Attempts by Eastleigh to nitpick or finesse the detail of the regulations get short shrift, as does the FTT’s overly pedantic application of ‘regularly’.

While not wanting to pre-judge the Upper Tribunal on any of the issues such as room size and room use that will come before it soon – I have always said these could go either way – a practical approach to the terms set out in the regulations is unlikely to assist the DWP.

The post Help me make it through the night appeared first on Nearly Legal.

We’ve received an interesting First Tier Tribunal (so not binding) appeal decision from Wakefield, thanks to Kirklees Law Centre. A copy of the statement of reasons is here (not anonymised as the appellants consented to it being used largely unredacted).

Mr G was the tenant, occupying a two bedroom property with his wife, Mrs G. Mrs G has severe disabilities following a fracture to her back and the couple had been moved to the property, a bungalow, to which substantial adaptations had been carried out by the local authority landlord. Asa result of Mrs G’s disabilities, Mr G was not able to share the bedroom and there was no space for an additional bed. So Mr G slept in the second bedroom. Mrs G receives higher rate mobility and highest rate care DLA.

The Council as benefit authority had applied a 14% reduction in HB for the property. Mr G had been granted DHP back dated to April 2013, but, as a condition of DHP, Mr & Mrs G had to search for a one bedroom property (despite, as they pointed out to the FTT, the fact that this would inevitably have to be of a larger floor space than the current property, and would need adaptations). Further, the DHP was expressed to be time limited and of short duration.

The FTT found that the conditions on the DHP and the expressed short term nature of it meant that “I cannot see how the discretionary housing payment policy of Kirklees Council “plugs the gap” in relation to their claim for housing benefit and the effect of regulation B13″.

While R (Rutherford) v SSWP [our report here] had found that payment of DHP was enough to amount to justification in that specific case, the time limited and short duration of DHPs in Mr G’s case “must cause unnecessary distress to Mr and Mrs G in a way that was not the case in Rutherford. In that case there was more confirmation that the payments would continue and there was no requirement to look for alternative ‘cheaper’ accommodation”.

So, the FTT found Reg B13 should not apply.

Comment

The detailed statement of reasons sets out that the FTT is reading an exception into Reg B13, on the basis of Art 14 discrimination, via Art 1 Protocol 1.

Although I am not sure it is fair to say that the Rutherfords were not caused distress through their dealing with the benefit authority in seeking DHP, and also that the guarantee of future payment was pretty much wrung out of the Council by the High Court, I think it is the case that there weren’t other conditions such as the tenant attempting to ‘downsize’ (actually upsize in space terms) attached to the DHP payment. The conditions imposed in the G’s case were clearly intended to push them to move, under threat of the end of DHP support.

I said in response to Rutherford that the case had effectively made payment of DHP in each disability based case a requirement for the DWP to avoid unlawful disability discrimination. The approach of the FTT here is along the same lines, and further – even though DHP was in payment, it was not a mitigation of the discriminatory effects of the bedroom tax because it was both ridiculously conditional and expressed to be short term.

The given reasons on DHP are, I would say, a logical consequence of Rutherford, and well worth noting for similar appeals. Well argued by Kirklees Law Centre.

(It is also worth a look at the detailed statement of reasons at 52-55 for arguments on room size and room use not succeeding in other appeals heard at the same time. The FTT was unimpressed by the Housing Act 1985 size standards argument, or by change of use arguments save in one case where the room had been converted to a bathroom by the Council. The rooms were ‘large enough for a single bed, at least’, and ‘it would only be in limited and exceptional circumstances [...] that a room which had been designated as a bedroom and which could be slept in is now in fact to be regarded as some other type of room by this tribunal’. A warning, if one were needed, for those taking an all too literalist view of what amounts to a bedroom.)

The post DHP not enough to remedy? appeared first on Nearly Legal.

This slipped under my radar, but thanks to @RichGreenhill on twitter for pointing to Section 7 of The Openness of Local Government Bodies Regulations 2014, in force as of 6 August 2014.

Section 7 provides:

7. (1) The decision-making officer must produce a written record of any decision which falls within paragraph (2).

(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either—

(a) under a specific express authorisation; or

(b) under a general authorisation to officers to take such decisions and, the effect of the decision is to—

(i) grant a permission or licence;

(ii) affect the rights of an individual; or

(iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.

(3) The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information—

(a)the date the decision was taken;

(b)a record of the decision taken along with reasons for the decision;

(c)details of alternative options, if any, considered and rejected; and

(d)where the decision falls under paragraph (2)(a), the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.

(4) The duty imposed by paragraph (1) is satisfied where, in respect of a decision, a written record containing the information referred to in sub-paragraphs (a) and (b) of paragraph (3) is already required to be produced in accordance with any other statutory requirement.

Also worth noting is Section 8 – a duty to make records of decisions available for inspection.

8. (1) The written record, together with any background papers, must as soon as reasonably practicable after the record is made, be made available for inspection by members of the public—

(a)at all reasonable hours, at the offices of the relevant local government body;

(b)on the website of the relevant local government body, if it has one; and,

(c)by such other means that the relevant local government body considers appropriate.

(2) On request and on receipt of payment of postage, copying or other necessary charge for transmission, the relevant local government body must provide to the person who has made the request and paid the appropriate charges—

(a)a copy of the written record;

(b)a copy of any background papers.

(3) The written record must be retained by the relevant local government body and made available for inspection by the public for a period of six years beginning with the date on which the decision, to which the record relates, was made.

(4) Any background papers must be retained by the relevant local government body and made available for inspection by the public for a period of four years beginning with the date on which the decision, to which the background papers relate, was made.

(5) In this regulation “written record” means the record required to be made by regulation 7(1) or the record referred to in regulation 7(4), as the case may be.

And Section 10

10. (1) A person who has custody of a document which is required by regulation 8 to be available for inspection by members of the public commits an offence if, without reasonable excuse, that person—

(a)intentionally obstructs any person exercising a right conferred under this Part in relation to inspecting written records and background papers; or

(b)refuses any request under this Part to provide written records or background papers.

(2) A person who commits an offence under paragraph (1) is liable on summary conviction to a fine not exceeding level 1 on the standard scale.

yes, that is a criminal offence of failing to make the record of a decision available for inspection.

Interesting. And potentially useful.

The post Reasons, reasons, reasons appeared first on Nearly Legal.

The DCLG has released the “Social landlords reduction of service charges: mandatory and discretionary directions 2014“, in force as of today, 12 August 2014.

The upshot of the mandatory directions is that a social landlord which undertakes “repair, maintenance or improvement” wholly or partly funded by

(a) the Decent Homes Backlog Funding provided through the 2013 Spending Round; and
(b) any other assistance for the specific purpose of carrying out works of repair, maintenance or improvement provided by—
(i) any Secretary of State; or
(ii) the Homes and Communities Agency.

is limited in the amount of service charge or major works charge it can levy on its leaseholders for the work.

The limit is as follows:

such service charges and any services charges which the social landlord proposes subsequently to make for costs incurred in respect of such works in any period of five years [shall not] exceed a total sum (“the total sum”) of—
(i) £15 000 for a dwelling situated within a London authority; and
(ii) £10 000 for a dwelling not situated within a London authority;

On some estate wide ‘decent homes’ major works programmes, that cap could amount to a very significant sum. Major works charges of £30,000 or £40,000 are not uncommon. If spread over 100 leaseholders, the difference could be £2 million or so.

The question for social landlords, then, is whether taking Decent Homes (or other Govt/HCA money) is worth it in view of the cap on major works charges that would follow. Who is to subsidise the works, the Government, or its leaseholders? And that is both a financial and a political question.

[From an exchange with the GLA assistant director of housing on twitter, it appears that the Decent Homes Backlog funding in London - devolved to the GLA - will only be caught in 2015/16, as this is when the 2013 Spending Round Backlog funds will come into play. There will clearly be some difficulties over whether the Decent Homes funding being spent by the social landlord is from a tranche predating the 2013 spending round. Joy. Meanwhile, out of London, is Decent Homes backlog funding provided through HCA covered, no matter which Spending Round it originated from? A straight reading says yes ]

Also released are the Discretionary Reduction Directions.

These give a social landlord a power to waive or reduce service charges, having regard to the following criteria:

(a) any estimate of the costs of the works of repair, maintenance or improvement notified to the lessee or any predecessor in title before the purchase of the lease of the dwelling;
(b) whether the purchase price paid by the lessee took account of the costs of the works of repair, maintenance or improvement;
(c) any benefit which the social landlord considers the lessee has received or will receive as a result of the works of repair, maintenance or improvement, including an increase in the value of the lease (including the reduction of a negative value of the lease), an increase in the energy efficiency of the dwelling, an improvement in the security of the dwelling and an improvement in services or facilities;
(d) whether, upon receipt of an application by a lessee, a social landlord, having regard to the criteria set out in paragraph 4, considers that the lessee would suffer exceptional hardship in paying the service charge; and
(e) any other circumstance of the lessee which the social landlord considers relevant.

Additionally, in cases of exceptional hardship, where the leaseholder has made an application, the landlord hold have regard to:

(a) whether the dwelling is the lessee’s only or principal home;
(b) the total amount of the service charges paid or are payable by the lessee since the purchase of the lease of the dwelling;
(c) the amount of the service charge payable in the year in which the lessee applies for the reduction because of exceptional hardship;
(d) the financial resources available to the lessee;
(e) the ability of the lessee to raise funds to pay the service charge;
(f) the ability of the lessee to pay the service charge if the landlord extended the period for payment; and
(g) any other relevant consideration.

These powers can be applied retrospectively to charges already made and/or paid.

But these are discretionary powers. The Landlord therefore has to consider exercising them, but does not have to grant a waiver or reduction.

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Given that most of the Anti-Social Behaviour, Crime and Policing Act 2014 is not yet in force, including the provisions which empower the Secretary of State to issue statutory guidance, it seems slightly odd that statutory guidance which purports to have been issued under sections 19, 32, 41, 56, 73 and 91 of the Act (none of which have been commenced) was issued last month. It has the utilitarian title: Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers Statutory guidance for frontline professionals.

In many ways the document is unsurprising, setting out the various powers – community trigger, community remedy, civil injunction, criminal behaviour order, dispersal power, community protection notice, public spaces protection order, closure power and new absolute ground for possession – with which we will all no doubt become familiar over the next few months and years, as the ASBO, the ASBI and the other many and various interventions fade from memory.

The Guidance very much continues the mantra we have heard from the Coalition government of “putting victims first”: “The right response will depend on a range of factors, but most importantly, on the needs of the victim and the impact the behaviour is having on  their lives.”  While the case of Fiona Pilkington vividly illustrated what can go wrong when victims are not heard, to my mind there is not enough concern with weighing the evidence and not necessarily taking evidence of victims (perhaps a more neutral term would be “complainants”) at face value. The only mention of evidence relates to the new civil injunction where in relation to hearsay evidence the guidance states:

“Hearsay and professional witness evidence allow for the identities of those who are unable to give evidence due to fear or intimidation, to be protected. This is especially important as cases can involve anti-social behaviour in residential areas where local people and those targeted by the behaviour may feel unable to come forward for fear of reprisals. Hearsay evidence could be provided by a police officer, healthcare official or any other professional who has interviewed the witness directly.”

There have been enough examples of criticisms of both local authorities and housing associations as to their use of hearsay evidence (Moat Housing Group (South) Ltd v Harris[2005] EWCA Civ 287 springs readily to mind), that I would have thought that greater guidance on what is appropriate evidence and how cases should be investigated with an open mind would have been appropriate.

Connoisseurs of the debates on Art. 8 defences will also be interested in the guidance on the new absolute ground for possession.  (Strictly speaking this is not statutory guidance as there is no power to issue such guidance under Part 5 of the Act.) This states that tenants of “public authorities or landlords carrying out a public function will be able to raise any available human rights defence, including proportionality against the proceedings.” This is the only place in the document to refer to landlords in these terms (elsewhere they are referred to as local authorities, housing associations or private landlords) – so I presume the authors of the guidance did not want to even admit that housing associations were necessarily subject to this defence or indeed the potential horizontal effect on private landlords. Further it is only human rights defences which are conceded, not other possible public law defences. No doubt these are all points to be tested once the ground starts to be used. We can only hope that landlords heed the advice in the guidance that: “The new absolute ground is intended for the most serious cases of anti-social behaviour and landlords should ensure that the ground is used selectively”.

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Most, if not all, of the London-based readers of this blog will have experience of the “unassigned list” at Central London County Court. In short, a number of cases (today, as I understand it, at least three s.204 apppeals and a sub-letting possession appeal, but on other days multi-day trials) are listed for hearing, but no judge is available. The hope is that one of the judges (who will themselves already have full lists) will, at some stage, become free and able to hear the unassigned cases. I would wager good money that more often than not (as today) none (or very few) of the unassigned cases actually get called on, meaning that the parties have to go away and come back another day.

Now, I understand the need to make good use of judicial resources and, yes, if a case goes short or unexpectedly settles, then it is desirable that the time is spent on another case. But, when that doesn’t happen (as today) then you get the most outrageous (and, frankly, disgusting) waste of money and time:

(a) the cases today must have cost at least £20,000 in fees to prepare (and, I suspect, probably more);

(b) in at least one case, at least one party was privately paying – imagine how sickening it must be for a privately paying party to find that they have, in effect, wasted thousands of pounds simply to give the opportunity for the court to make better use of its resources (i.e. the resources of a party are being sacrificed for the convenience of the court);

(c) in the others, public money was being spent (whether by way of legal aid or local authority funds); one cannot take a relaxed attitude to publicly funded cases (as some judges are known to do). Local authorities have better things to spend their money on than fighting cases (like actually discharging statutory functions). It’s not as if there is a huge pot of legal aid money to spend; and, as one of the NL team pointed out to me, if you’re representing a claimant on legal aid, there is a real risk that inflated costs  caused by wasting thousands on an aborted hearing will distort the cost/benefit ratio and endanger funding; and,

(d) imagine what it must be like for a litigant in that position? You’re dealing with the stress (which must be pretty bad) of being an appellant in a homelessness appeal, you prepare yourself for the hearing and then find that there is no judge to hear your case and you have to come back at some unidentified date in the future. I cannot imagine how upsetting that must be.

It simply is not good enough. More than that, it is disgusting and something needs to be done. I don’t know when the next CLCC users group meeting is, but this needs serious and urgent consideration.

The post Simply unacceptable appeared first on Nearly Legal: Housing Law News and Comment.

It is hard for a civil servant, with a predisposition to reticence, obfuscation and paper, to know what to do in an age where ‘amazeballs’ and ‘bedroom tax’ have entered the Oxford English Dictionary, and even the dictionary is only available online. How, the poor bewildered apparatchiks wonder, can we get a message across in a time of kitten pictures, selfies and LOLZ.

Alas, their befuzzled, fustian earnestness leaves them prey to every peak-bearded, artisanally trousered, new media guru able to crank open a MacBook Air and seduce them with talk of clickthroughs, heat maps and the ecstasies of virality. Things Buzz, things that they do not understand, but yearn for. They wish to Buzz.

Thusly the DCLG and Is your Landlord Actually Incredible?. On Buzzfeed.

It is meant to be funny. There is no getting around that. The images cling with a grim formalism to the appearance of internet humour, but without the content. They are the output of a person who does not understand the concept of jokes being chained in front of ICanHazCheezburger, being told this is what funny looks like and to get on with it. It is the blind men and the elephant approach to laughter.

The writing, though it may not seem possible, is worse. It aspires, relentlessly and brutally, to a witless jauntiness. As a whole, the bathos of this thing’s Not Funniness inspires a kind of pity. Whoever produced this, one feels, is in their soul of souls a wearer of comedy ties.

But when we get to the substantive content, if I can actually use those words, it becomes clear just how poor an opinion the DCLG actually has of private landlords; just how low the bar of expectation is set. Also, it becomes clear that this waste of pixels should never have been signed off.

“Is Your Landlord Actually Incredible?” we are asked. And helpfully, the DCLG go on to tell us how to tell if our landlord is incredible.

Private sector tenants, your landlord is actually pretty awesome (and not jeopardising your well-being/savings/sanity) if they do all the following:

There are nine indicators of incredibleness. I am on tenterhooks….

1 Keep your deposit at arm’s length
They agree for you to pay your deposit into a government approved deposit protection scheme.

While one should not have great expectations of anyone who very likely self-describes as a ‘content producer’, this manages to fail even the lowest of low hopes. Of course, protecting a deposit in a scheme is a basic legal requirement for a landlord and/or agent, not something your landlord will munificently agree to out of the goodness of their pretty awesome heart. But the clueless pixel jockeys can’t even get the basic law right. The tenant doesn’t pay the deposit in. The landlord or agent does. Or, if it is an insurance scheme, like most of them, they don’t pay it in at all, they just register it.

Next?

2 Not vanish
They give you their up-to-date contact details including a telephone number you can ring in case of an emergency.
Bonus points if they give you this when you’re renting through an agent.

Well, it is a basic legal requirement under s.47 Landlord and Tenant Act 1987 that the landlord provide their actual address on any written demand to the tenant. There is no real sanction if the landlord doesn’t, unless there are service charges – service charges aren’t due until the actual address is provided. But rent is still due. So landlords ignore s.47. Section 48 just requires an address in England and Wales for service – this can be an agent. So a landlord providing their actual address is a basic legal requirement but one that only nice landlords actually fulfill. Forgive me if I’m not feeling the incredible yet.

3 Put it in writing
They give you a written tenancy agreement that clearly sets out your rights and obligations.
Check that it excuses you from paying rent should the building become uninhabitable due to things like flooding and fire.

OK, not technically a basic legal requirement this time. There is no need for a written tenancy agreement, but given that a landlord can’t use the accelerated possession procedure without a written tenancy agreement, the presence of one makes the landlord not so much incredible as not a complete idiot.

4 Upkeep
They maintain the structure and exterior of the property.
They make sure the water, electricity and gas work and any appliances and furniture they supply are in good working order.

Yes, that is another basic, inescapable legal requirement. Complying with it is not pretty awesome on your landlord’s part, it is exactly what they are obliged to do.

5 Not get rid of you for asking for repairs
If something isn’t working and it forms part of the rental agreement they get it repaired.

Yes, you did read that right. It is truly incredibly awesome of your landlord if they don’t evict you for raising repair problems. Those low expectations? Consider them dropped to the floor. Let us hope that this will also be a basic legal right before too long.

6 Respect your privacy
They give reasonable notice of any necessary visits – the landlord cannot walk in whenever they like.
For things like repairs, the landlord should give written notice at least 24 hours before a visit.

Yes, that is a basic legal right again.

7 Share useful paperwork
Before you sign a contract they’ll give you:
A gas safety certificate – the landlord must provide one each year.
A record of any electrical inspections – all appliances must be safe and checks every 5 years are recommended.
The Energy Performance Certificate – this will affect your energy bills and the landlord must provide one.

For everything except the electrical inspection (and this needs sorting), these are basic legal requirements. Are you seeing a theme emerge about the measure of the pretty awesome landlord?

8 Get registered
Whether you’re planning to rent directly or via a letting agent, ask about landlord accreditation. These schemes safeguard you if your landlord goes bust or spends your deposit on a three-legged racehorse.

What? This is unmitigated rubbish. Nonsense on stilts. Way past wrong and all the way out into misrepresentation. I know of no landlord accreditation scheme that offers the tenant any recompense, safeguard or recourse at all. Certainly Boris’s London Landlord Scheme doesn’t. Who in the DCLG cleared this? Because their head should be on a plate.

9 Keep you alive
When you visit a property, see if you can spot any smoke or carbon monoxide detectors – these could save your life!

A basic legal requirement for HMOs or any property built after 1992. Frankly an obvious need, rather than an act of awesomeness.

And that is it. That is the whole bowl of awesomeness; the gold star list of being incredible.

I can only believe that as the DCLG wriggled into its unaccustomed skinny jeans and considered growing a Grizzly Adams style beard (and can I just say how tired I am of London resembling a gathering of off-duty extras from a staging of Oklahoma), it lost its ability to pass on accurate information, because, well you know, viral and buzz and things.

Or perhaps this pathetic piece of nonsense truly has revealed just how low the DCLG’s expectations of private landlords are, such that we are expected to high-five landlords, hug them, and buy them a speciality micro brewery beer for actually complying with the simple, basic legal requirements imposed on them. Yes, that is incredible. Onto the naughty step go all involved.

At least there wasn’t a Nyan cat stuck in there.

Update: Buzzfeed’s deputy editor wishes to dissociate his site from having any editorial relations with this car crash whatsoever. Via twitter:

@nearlylegal @nickduxbury Oh lordy. Just for the record (may be worth adding to blog?) it’s on our community section, we have no control.

The post On the Naughty Step: Incredible Landlords and the buzzy DCLG appeared first on Nearly Legal: Housing Law News and Comment.

Barrett v Robinson [2014] UKUT 322 (LC) is very, very important decision on costs from the Upper Tribunal (Lands Chamber). It came out a few weeks ago and I’ve been promising to do it since then. Sorry.

You’ll be aware that most, if not all leases, have a “forfeiture costs” clause in them – something along the lines of a covenant to pay costs incurred by the landlord in or in contemplation of forfeiture or preparation of a notice under s.146, Law of Property Act 1925, notwithstanding that forfeiture is avoided otherwise than by way of relief. For many years, this clause didn’t really trouble practitioners. Then along came Freeholders of 69 Marina v Oram [2011] EWCA Civ 1258 (our note here). That case held that (i) you can’t forfeit a long residential lease for non-payment of service charges unless and until the liability has been determined in accordance with s.81, Housing Act 1996 (and, for other breaches, see s.168, Commonhold and Leasehold Reform Act 2002, in similar terms); (ii) it followed therefore that proceedings in a court or tribunal to determine the amount of money owing as service charges must be incidental to forfeiture; and, (iii) could therefore be recovered under a s.146 costs clause.

As we noted at the time, that conclusion was rather surprising. The practical effect was that, all of a sudden, almost all residential leases permitted landlords to recover all their costs. As someone who acts for leaseholders, this was a very unwelcome development. The position was worsened by the fact that the Upper Tribunal was of the view that costs under these clauses were probably administration charges under Sch.11, 2002 Act, such that there could be no protection under s.20C, Landlord and Tenant Act 1985 (power of court or Tribunal to direct that legal costs are not recoverable as a service charge).

Which brings us to the present case. B was the leaseholder of a flat above a shop. Under the terms of her lease, she had to pay a service charge for the insurance of the building. Her landlord was charging £324 p.a. for this. She disputed these costs in the LVT (as it was then) and the premium was reduced to £205, meaning that she was actually in credit with her payments, having paid the larger sum for some years. The leaseholder sought an order under s.20C, 1985 Act but this was refused by the LVT on the basis that the contractual right to costs (a forfeiture costs clause) created a right legal costs as an administration charge, not a service charge.

In due course, the landlord sought to recover the costs of the first LVT proceedings via the forfeiture costs clause. The quantum of costs was agreed at £6,250 but the issue of liability was contested and, in due course, came before the LVT. The leaseholder pointed out that it was she who had initiated the first LVT proceedings and so denied that they could be said to be incidental to (or, indeed, related at all) to forfeiture. The LVT disagreed, holding that the effect of 69 Marina was that any proceedings which satisfied s.81, 1996 Act, were within the scope of a forfeiture clause.

And so the case came before the UT. The Deputy President noted that the issue involved one of “… general significance to tenants seeking access to justice though the tribunal system…” ([38]). The tribunal itself had quite limited costs powers (true of both the FTT and LVT, albeit the FTT is slightly more powerful), but that did not impact on the contractual position (as explained in Christoforou v Standard Apartments Ltd [2013] UKUT 586 (LC)).

The forfeiture costs clause was potentially relevant to the case. It was clear from s.81, 1996 Act that forfeiture could not have occurred unless and until the service charge dispute was settled in the LVT. But that did not mean that the costs were recoverable under a forfeiture costs clause.

(i) The costs clause was limited to costs as were envisaged by s.146 itself. That would include costs incurred by a landlord to establish a breach, but not costs by a tenant to determine his liabilities.

(ii) The point of such a clause was to ensure that a landlord recovered all his costs even if forfeiture was avoided, i.e. if the tenant complied with all the conditions imposed by the s.146 notice.

(iii) Further, the clause required there to actually be a right to forfeiture which the tenant could be said to have “avoided”. Thus, if there was no prospect of forfeiture because of, e.g. waiver (or, as here, because the tenant was actually in credit), then the clause could not apply.

(iv) In any event, there had to be an intent to forfeit – proceedings to establish a breach of covenant did not necessarily amount to proof of any such intent; it may, for example, simply be a debt claim. In the present case, the landlord had led no evidence as to his intent (and wouldn’t have been able to forfeit anyway, as the underlying debt did no exceed £350, as required for forfeiture – see s.167, 2002 Act).

If you think this isn’t all entirely consistent with 69 Marina, then I’d agree with you. The Deputy President deals with this (in part) by noting that 69 Marina “… came as a surprise to landlord and tenant practitioners.” ([55]). He notes that relevant previous authority did not seem to have been cited to the Court of Appeal (or, if it was, they didn’t refer to it in their judgment) and that the case had been subject to “…cogent criticism…” (at [56]; not citing NL, sadly).

Comment

So, the UT can’t overturn 69 Marina, but has tried pretty hard to reduce the scope and application of the decision. I have two (minor) concerns. First, there is a High Court decision (Cussens v Realreed [2013] EWHC 1229 (QB), out note here) which, albeit in an obiter passage, suggests a slightly more generous approach to how s.81/s.168 can be satisfied than the UT plumps for. Secondly, and more substantially, I’m slightly concerned that this leads to more front-loading of trials. If I have to prove (as a landlord) a right to forfeit, surely I’ll have to plead and prove the same. Will there be cross-examination on prospective future intent in all service charge cases brought by landlords? The answer, I suspect, is for the tenant to issue the proceedings to try to minimise the risk.

The post Costs and forfeiture appeared first on Nearly Legal: Housing Law News and Comment.

The UT(LC) has published an addendum to Daejan Properties Ltd v Griffin [2014] UKUT 206 (LC) (our note here). The substantive case was about historic neglect. In outline, the leaseholders had won in the FTT and the UT overturned the decision, The UT invited written submissions on s.20C, Landlord and Tenant Act 1985 and, in doing so, clearly wanted to give a bit of practical guidance to the FTT/LVT.

You’ll remember that, if a lease lets a landlord recover his legal costs as a service charge, then s.20C, Landlord and Tenant Act 1985 gives the court or Tribunal a discretionary power to disallow some or all of these costs if it is just and equitable to do so. The UT is very, very reluctant to lay down specific guidelines on how to approach the s.20C discretion, noting that the disputes to which it applies “come in a great variety of forms… [and]… it is impossible to lay down general rules… other than at the highest level of generality and even then only as factors to be taken into account.” ([115])

What was clear, however, was that s.20C need only be considered if there is actually a contractual right to the costs as a service charge; it follows that the Tribunal should first decide that question ([116]-[117]). Now, that is quite important, since practice varies considerably between Tribunals and, hopefully, that should now stop. The practical point (for both landlord and tenant lawyers) is to make sure you’ve identified your contractual right to costs (or why there is no such right) before the FTT/LVT hearing.

The post A short note on leasehold costs appeared first on Nearly Legal: Housing Law News and Comment.

No less than four FTT bedroom tax appeal decision have come my way lately. Three of them concern successful appeals on human rights Article 14 discrimination or Article 8 family life grounds. One is a clear room size decision with an interesting footnote on tenancy agreements.

I’ll start with the most comprehensive decision, which while semi-successful, raises some important issues in its failed grounds, and a question in its semi-successful ground. The decision, SC231/13/01993, from Bedlington, [Statement of Reasons here - a large and not very legible pdf file, I'm afraid], is by Judge A N Moss, who also allowed the appeal in the Sunderland Lift in the bedroom case.

The appellant had a three bedroom property – which he had been told to bid for by the council landlord, as his children from two ended partnerships were to stay with him often. One child then came to live with him. The other child visited and continues to do so for a weekend per month and for weeks at a time during school holidays.

The council decided the bedroom tax applied, apparently because only one child was resident, though this is not clear. There was an ‘additional’ bedroom.

Now it is worth noting that the Council initially wrote to the appellant stating that he did not have a right of appeal from their reconsideration, which is utterly wrong, probably intended to prevent people exercising their right to appeal, and arguably maladministration and an issue for the Ombudsman.

The Council then only provided the appellant with a fraction of the appeal bundle, so that the appellant had to use the Tribunal’s copy, and, to add insult to injury, the Council then didn’t turn up to the hearing, without reason or excuse. This is very shoddy behaviour indeed. The Tribunal decided to go ahead anyway, noting the Council’s “contempt and fundamental lack of respect to the judicial process”.

The appellant, in person, advanced a number of arguments: Room size – based on the Housing Act 1985 Part X overcrowding provisions; Room use – the room was never used as a bedroom; Article 8 breach of family life in not taking his visiting son into account or the appellant’s ability to find resources to travel to see his son.

On room size, the third bedroom, described as a box room, was either 55 or 67 sq ft. The Tribunal found that it was large enough to fit a single bed and maybe a chest of drawers. The Tribunal did not accept that the Housing Act 1985 criteria had any relevance. (And here the Tribunal’s finding is exactly the counter-argument on the HA 1985 criteria that I have forecast being made since the start).

What is clear from this legislation is that involves an assessment of the number of rooms, the number of people in the dwelling, the rooms available as sleeping accommodation. The size of a room is used to decide how many people can be treated as sleeping in it for the purposes of calculating whether a dwelling is overcrowded.

The Housing Act 1985 therefore regards overcrowding not only in relation to the number of bedrooms and the people in bedrooms but those who could sleep in a living room [sic]

It is an assessment of the overall number of people in the property compared to the rooms and space available. It has a definition of sleeping accommodation which is fundamentally different to that contained within the MRSS [bedroom tax]. It is not limited to bedrooms. [...]

The relevance of a room having a floor area  of less than 50 square feet is relevant for the calculation of the number of people in the dwelling for the purposes of overcrowding. It has no other relevance. It has no relevance as far as the MRSS is concerned.

Room use receives a more nuanced treatment, but again, the clear counter arguments to the more wildly optimistic of arguments about what makes a bedroom are made clear. Intriguingly, the Tribunal adopts what it describes as a mixture of an objective and subjective approach.

By objective criteria the Tribunal means looking at the room from the outside without personal connection to the property – would that room normally be regarded as a bedroom.

By subjective criteria the Tribunal means are there particular circumstances in this case which would suggest a room which would normally be considered a bedroom should not be one.

As a key example of ‘subjective criteria’, the tribunal references its own earlier decision in the Sunderland case. While the room with a lift in it would fit a bed, it lacked the necessary qualities of privacy and personal space for a bedroom, so long as the lift was required by the disabled occupant. The subjective element being that “degree of privacy and sanctuary [...] to separate yourself from other parts of the house”.

The specific arguments on room use advanced by the appellant (referred to as Mr below) were dismissed. He argued that the room had never been used as a bedroom, and that he used it to store his weights. The Tribunal referenced the lift in the room example and stated:

Such scenarios are qualitatively different from the situation where someone uses what would be regarded as a bedroom for other purposes such as an office or a study. A person has chosen, for personal reasons, to use that particular space in that way.  Mr    has chosen to have weights and to put them in that room. That use could change very rapidly e.g. he stops using weights.

The Tribunal therefore find that, unless there is something very peculiar and persuasive to the particular needs of that person at that time in the house the use to which a person puts the room out of choice and preference does not prevent a room which is capable of being a bedroom, one which is normally regarded as being a bedroom, from being classified as such for the purposes of MRSS.

So, to the Article 8 argument, based on the appellant’s separated family and son coming to stay regularly. As it was initially put, this argument got short shrift. Mr    argued that the additional costs of travelling to see his son would be unaffordable if the bedroom tax applied. The Tribunal found that there were cheaper ways of travelling than running a car, as relied on by Mr , but in any event:

Everyone has to make choices based on their financial circumstances. Since he moved into [the property] Mr   was in receipt of Jobseekers Allowance . JSA provides limited financial assistance but that did not seemingly prevent him from having regular access to his son in Scotland. He made financial choices to make sure that could occur. Since April 2014, his level of HB has reduced as his income has increased. However, this has had no effect on his ability to make contact with [his son].

[...] Changes to tax rates causing a reduction in net income would not contravene Article 8. They are part of normal economic policy. MMRS can be regarded in equivalent terms. In effect it amounts to a tax on someone’s income. There is nothing in Article 8 which requires the state to pay for the full amount of rent due to a landlord.

There was no breach of Article 8 based on Mr’s  contact with his son. However, when it came to the time Mr’s son spent at the property, things were a bit different.

The definition of occupying the dwelling as a home has to be interpreted in accordance with Article 8 – the right to a family life.

It is crucial to family life and society’s well being that parents, even though separated, maintain good and regular contact with their children. [...] Fathers and mothers are entitled to see their children. [...]

Maintaining good and regular contact usually means the child says over on a frequent basis. Personal circumstances may determine how that operates in practice. For example [...] parents who live many hundreds of miles apart may have to arrange blocks of contact because weekly contact would be impractical. [...]

It is clear that [staying son] regards [the property] as his home when he is there. it has all his belongings there. His brother is there. [...]

The Tribunal is satisfied that this test has nothing to do with who receives child benefit. The mothers receive the child benefit. [...] It is not possible for more than one parent to receive child benefit even where there is a 50/50 split as to where the children live.

Now the crucial bit in this case was that as of 2 August 2014, the elder, resident, son turned 16. So while before that date, even if the younger son was counted as resident, which was the Tribunal’s finding, the two sons could share the second bedroom (as in fact they did)., there would be an entitlement to a third bedroom from 2 August under the regulations, as one child would be over 16. So, while the retrospective appeal failed, for the reasons given above, the Tribunal found that from 2 August 2014, there was an entitlement to 3 bedrooms.

Comment

This is, of course, a non-binding FTT. However, the finding on ‘separated families’ – that it is possible for a child to have two homes, is a significant one, echoing as it does the decision in the Liverpool case. For a household where that child staying would result in entitlement to an additional bedroom, this is important.

My concerns with that finding are the same as with the Liverpool case, though. While the statement of reasons in this case gives a clear basis for the decision, there is no address to the Upper Tribunal case of TD v SSWP and London Borough of Richmond-Upon-Thames (HB) 2013 UKUT 642 AAC or the finding on the meaning of ‘occupy’ in the regulations in R (Marchant) v Swale Borough Council HBRB [2000] 1 FLR 246. As such, the decision appears to be at risk on appeal and appears to be made per incuriam, without knowledge of relevant case law.

The rest of the decision sets out clearly the counter-arguments to the room size and room use arguments that have been advanced, sometimes successfully, in other tribunals. These are the arguments (amongst others) that I would expect to be deployed in the forthcoming Upper Tribunal test case on room size, and any test case on room use.

As with the earliest decision on room use, Thomson in Fife, the Tribunal here is really only prepared to entertain arguments on use where that use is reasonably necessary to the household’s continued occupation of the property (such as the use of the lift in the Sunderland case). Although not addressed here, any arguments based on a simplistic reading of the Bolton UT decision, or on the misinterpretation of Uratemp, would also fail.

Any article 8 argument based on financial resources, as was made in this case, seems doomed to failure, as there is no generalised right to benefits.

The Tribunal’s approach to considering the need for an additional room and room use – a mixture of objective and subjective approaches – is interesting. In effect, individual circumstances are to be considered, but are not the whole – the individual’s views on whether or not a room is a bedroom are not determinative.

Now for the other FTT decisions.

Liverpool SC068/14/1262. [Decision Notice] The appellant lives alone in what was categorised by the landlord as a two bed property. He is disabled, receiving high rate mobility DLA, and the property had been adapted by the landlord to include a wet room, adapted toilet and handrails throughout. Sometimes the appellant had to sleep downstairs when unable to climb the stairs. The second room had never been used as a bedroom during the tenancy and was “a dumping ground” for the appellant’s “junk”.

The Tribunal found that the appellant could not take in a lodger because of his need to sleep downstairs on occasion. He had received some DHP, but was not currently in receipt. He had to visit the housing office to apply for DHO and this was very difficult for him. He was in a low transfer priority and there were few adapted one person properties available.

The Tribunal considered the DWP interim report, and distinguished MA & Ors on the basis that DHP was not in payment. None of the other remedies for the appellant’s position (downsizing, taking in a lodger, finding employment) were applicable. There was therefore unjustified Article 14 discrimination in both the imposition of the bedroom tax and in the lack of ease in applying for DHP.

Room use arguments were not accepted – the use of the room was the appellant’s choice. The argument from the Bolton UT decision, the ‘definition of a bedroom’, was also rejected, the Bolton UT did not give a closed definition of what was a bedroom. The (mistaken) argument from Uratemp on room use defining the room was also rejected. Uratemp referred to the whole of a dwelling, as a dwelling.

The remedy was to read into the HB regulations B13(5)(b)

A relevant person is in receipt of high rate care and/or high rate mobility Disability Living Allowance or the enhanced rate of PIP for either daily living or mobility, lives alone and is in accommodation in a property which has been specifically adapted by the landlord by reference to his needs for mobility or care by way of kitchen, bathroom or stair adaptation which makes it feasible for him to live alone and with no overnight carer.

That is a pretty specific set of circumstances. My usual concerns about the extent of reading in remain.

The unique point about this case is that an article 14 argument was accepted not on the need for the ‘extra’ room due to disability. There was no such need. The discrimination found was effectively in imposing the financial hit on someone who was unable to move or otherwise remedy the situation, and also required an adapted property. I am more than a little uncertain about this.  The logic would seem to suggest a right to adaptations. While in this case the adaptations already existed, can there be a right to retain adaptations which is distinct from a right to have them done in the first place? And there is no right to have them done.

Liverpool SC068/14/01608. [Decision Notice] A disabled couple, where the one needed the second bedroom to sleep due to partner’s disabilities and need to store medical equipment in the bedroom. The Tribunal found the position was closer to Burnip than MA & Ors, and that MA & Ors “did not mean that on the individual facts of an appeal before the tribunal, on any given case, that the Tribunal could not find that the Appellant suffered from discrimination contrary to the ECHR and that such discrimination in any given set of circumstances could not be justified.” The clear logic in maintaining that children have a greater need for protection than adults (as MA distinguished Gorry) simply meant that Gorry could not be automatically applied to adults, not that it could never be applied to adults.

The remedy was to read in to 13(b)(5)(a) an exception where:

A couple (in the meaning of Part 7 of the Act) or one member of a couple who is unable to share a bedroom because of his or her disability or the disability of the other member of that couple.

An alternative argument on room size was rejected. Not least as the room was used as a bedroom and the appellant said they were happy there.

While it is good to see the FTTs prepared to distinguish or otherwise avoid MA & Ors, one has to wonder how far the approach here would be effective on appeal. While it is quite right that MA & Ors does not prevent FTTs from deciding on the specific facts of the case in front of them, there is apparently no examination of whether DHPs were in payment, and if so with what conditions, as was carried out in this FTT case.  It is, bluntly, not open to the FTT simply not to deal with MA & Ors, which is what happens here – no basis is asserted for finding unjustified discrimination in circumstances where the Court of Appeal in MA & Ors found it justified. While there may well be reasons, none are explored, found or asserted.

Lastly Truro SC247/14/00201 – Kent. [Decision Notice] This is a short and sweet room size decision. The room had a useable floor space of less than 50 square feet and was being ‘reasonably used for storage of the tenant’s possessions’.  Further, the property was let in 1996 with ‘no designated number of bedrooms’ – presumably the tenancy agreement failed to specify the number of bedrooms, which is a detail worth looking at in other cases.

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