A few bits.

There are four new FTT bedroom tax decisions on the FTT page, including one from Manchester where subsidence was classed as a ‘natural catastrophe’ for the purposes of continuity of property for the 1996 exemption. There are two room size and use decisions, and one Article 14 disability decision – although this predated the Upper Tribunal decision in CSH/188/2014. The Article 14 case effectively finds that the Council as landlord had made a promise to the severely disabled tenant of ‘a home for life’ and as benefit authority, should not be allowed to resile from that.

The promise having been given the appellant had a legitimate expectation that her present accommodation would be her home for life and there is no overriding public policy requirement that justifies resiling from that promise. There is a straightforward means of keeping the promise. The fact that it involves a modest increase in public expenditure does not constitute sufficient reason for going back on the promise.

While there is certainly a strong moral case for this, I am not sure that the FTT establishes a legal basis for reaching this decision.

The Upper Tribunal judgment on room size is still awaited, though rumour has it that the DWP team took a pounding over the suggestion that a room was still a bedroom if you had to stand on the bed to get dressed.

I did a seminar on tenancy deposits, with David Smith, also of NL and Philippa Graham. It was, alarmingly, filmed and is available for free. There are three videos. Philippa covers the structure of the post Localism Act Deposit rules and the Superstrike decision. Then I cover the effect of Spuerstrike and over recent decisions. David then covers the proposed changes in the Deregulation Bill and what they do and do not do.

Image may be NSFW.
Clik here to view.

And it has been and will be a busy time for housing cases in the Supreme Court. Many thanks to Jan Luba QC for the following roundup.

The following have been heard and await judgment:
Scott v Southern Pacific Mortgages Limited on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2012/17.html
Sims on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2013/12.html
CN and ZH on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2013/805.html

The following are listed for hearing this term:
Loveridge on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2013/494.html
Hotak on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2013/515.html
Akerman-Livingstone on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2014/1081.html

This has permission but is not yet listed:
Samin on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2012/1468.html

The following are among those awaiting decisions on permission in the Supreme Court:
Kanu on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2014/1085.html
Johnson on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2013/752.html
McDonald on appeal from http://www.bailii.org/ew/cases/EWCA/Civ/2014/1049.html

The Justice Select Committee heard oral evidence on housing legal aid after LASPO today, 21 October 2014. Representatives from HLPA, Shelter and Garden Court Chambers gave evidence. The recording is here, if the video below doesn’t work.

In the course of questioning, committee member Christopher Chope, MP for Christchurch, makes the intriguing assertion that every housing benefit problem presented by a constituent at his surgery has been sorted by an MP’s letter, and he wonders why legal aid for HB issues might be required for just that reason.

As Mr Chope MP appears to have magical powers, (or not many people present with HB problems at his surgery), this looks to me like a clear invitation for all people with HB issues in the Christchurch constituency to attend Mr Chope’s surgeries, and for local advice agencies to refer people to his surgeries. After all, one letter from him will sort things.

(Finally) AA v London Borough of Southwark [2014]

This High Court judgment is remarkable in many ways, most of them worrying. It was the result of a six day hearing, with Southwark putting Kelvin Rutledge QC up against Mr AA in person and ended with findings against Southwark that were as bad as they could possibly be (and just perhaps even worse than the available evidence would support).

Mr AA was Southwark’s secure tenant. He had been evicted on 23 April 2013, immediately after a failed stay application while he was still at Court, and the entire contents of his flat had been removed by Southwark and apparently immediately destroyed.

The case was Mr AA’s claim for (as interpreted by the Court) “reinstatement and for substantial damages for his unlawful eviction, unlawful homelessness and for the unlawful destruction of his possessions based on the torts of conspiracy, interference with goods, negligence and misfeasance in public office, breaches of the terms of his contractual tenancy and pursuant to the Human Rights Act under article 8 of the ECHR”.

The basic (although partly contested) facts were that Mr AA had had a secure tenancy from November 1989 and of the flat at issue since 2001. In November 2006, a possession order was made, ordering possession by 27 November 2006. In February 2007, this was varied to an order that possession would be postponed and that LBS was not entitled to make an application for the date for giving up possession and the termination of the tenancy so long as AA paid the current rent and £2.90 per week towards the judgment debt. Following a further application for a date for possession and warrant in June 2007, the warrant was struck out and further order made that possession should be postponed (in the N28 form) made in September 2007. A date for possession was again ordered on 1 July 2008, and thereafter, there were stays of warrant in September 2008, April 2010 and September 2010. Mr AA’s arrears varied from c. £3000 to c. £1000 during this time.

On 22 February 2013, Southwark applied for a warrant – as an administrative issue of warrant. This was issued by Lambeth County Court on 26 February 2014 with an execution date of 23 April 2013. It is important that it was a request for an administrative issue of warrant, bear with me. At this point Mr AA’s total arrears were in the region of £2300 – though this was disputed and there appear to have been direct deductions from benefit unaccounted for (see para 89). Mr AA applied for a stay, and that was heard on 22 April 2013. It was dismissed but Mr AA sought permission to appeal and an interim stay, which was heard on 23 April. Mr AA was not successful, and immediately after the hearing, Southwark had the locks changed on the flat (with no Southwark officer being in attendance). Southwark then, very soon afterwards on about 25 April 2013, removed all of Mr AA’s belongings which were still in the flat and destroyed them.

Mr AA brought then issued various applications in various courts, from 25 April 2013 on, mostly for re-entry and/or access to his belongings. There were orders that he should have access to retrieve his belongs (which had, of course, already been destroyed, but the courts were not informed of this by Southwark). He brought the present claim in Lambeth County Court, with a first hearing in May 2013. Southwark admitted fairly quickly that it had unlawfully destroyed Mr AA’s belongings when it should not have done and that an internal investigation was underway. That was the extent of the admissions.

That is the bare history. But on examination things got… complicated.

Issue 1. What was this hearing about?
Southwark maintained that previous directions meant that this hearing was restricted to the assessment of quantum on Mr AA’s claim for his destroyed belongings. They also argued that the eviction had previously been found to be lawful and that Mr AA’s pleaded case disclosed nothing further. Unfortunately for Southwark, the Court spent some time with the previous applications, pleadings and orders from Lambeth County Court and the High Court.

Scope of AA’s pleaded case.
AA’s claim was a claim for special and general damages for a tortious conspiracy whereby officers of LBS had conspired to unlawfully evict AA and to evict him by unlawful means from his flat and had further conspired to remove unlawfullly all his possessions from his flat and to dispose of them unlawfully.

The unlawful means and unlawful ends relied on included failures to follow the LBS’s Eviction and Goods Storage or Disposal Procedures, proceeding and securing AA’s eviction for an ulterior purpose and in abuse of process, pursuing his eviction more than six years after the possession order had been obtained without first obtaining the permission of a judge to apply for a warrant of execution, covering up and failing to disclose the details of the unlawful actions and omissions that had occurred, failing to act fairly and reasonably with regard to AA’s attempts to obtain re-entry and the restoration to him of his property and pursuing its defence to his seven applications in different courts for relief from the unlawful conduct that had deprived him of his tenancy and his possessions in a dishonest and abusive manner.

This extensive case is ascertained by a consideration of his claim form, statement of case, particulars and schedule of loss, the details of his applications related to this claim, particularly the interim applications heard on 1 May 2013 and 5 June 2013, the amended defence and the particulars and disclosure of the investigation conducted by Mr Matthews that were served pursuant to paragraph 7 of the amended defence and AA’s witness statements that had been served in connection with these claims

Cutting down by subsequent court orders.
This extensive pleaded agenda for the trial was not cut down by subsequent court orders. The relevant parts of these orders that LBS now contends had the effect of confining the trial to a limited agenda were merely concerned with interim applications related to one specific claim – for special damages for the loss of AA’s possessions quantified under the TIGA – whilst leaving open and for trial all other causes of action, loss and special and general damages for the loss of both his tenancy and his possessions.

Southwark’s contention that the life issues in the case were restricted to quantum on the loss of belongings was wrong, and indeed Southwark’s own pleadings addressed the broader case.

Issue 2. Was the eviction unlawful?

The key question here was whether Southwark could legitimately seek a warrant by administrative issue. CCR 26r5(1)(a) requires an application to a judge for a warrant, with witness statement tor affidavit, where there has been a period of more than six years from the date of the underlying possession order. The original possession order was in November 2006, so the February 2013 application was over 6 years later.

Southwark argued that CCR 26r5(4) meant that the relevant date was July 2008, when a further order was made fixing the date for possession, as there had been intervening orders effectively in the form of Postponed Possession orders, with no date for possession until applied for. CCR 26r5(4) provided that:

“Paragraph 1 [i.e. CCR 26r5(1)(a)] is without prejudice to any enactment, rule or direction by virtue of which a person is required to obtain the permission of the court for the issue of a warrant or to proceed to execution or otherwise to the enforcement of a judgment or order.”

Thus the subsequent variation of the original possession order, in the form of postponed possession orders with no fixed date for possession, meant that this was not a possession order under s.82 but a ‘putting off’ of the date of possession under s.85. Thus there was no possession order per se for the purposes of CCR 26r5(1)(a) until there had been an application to determine the date of possession.

This did not go well for Southwark:

CCR 26r5(1)(a) did not alter the requirement that LBS had to obtain the permission of the court before applying for the issue of a warrant in February 2013. What rule 5(4) did was to make it clear that the requirement that the permission of the court was needed before a warrant could be issued was without prejudice to the further requirement that an application had to be made to fix the date for permission. In other words, the requirement of CCR 26r5(1)(a) as applied to the facts of this case was that both applications had to be made, albeit the second had to be made nearly 5 years after the first had been made.

And the supplemental submission from Southwark that the administrative application for a warrant had had retrospective judicial approval when the stay application was dismissed was also rejected.

So, the eviction was unlawful because Southwark had not sought and obtained the Court’s permission for a warrant on a possession order over 6 years old.

Issue 3.  Disclosure

Oh dear.  This is where it all fell apart for Southwark. Sticking to their line that the only claim by AA was for loss of his possessions, and this had been admitted save for quantum, Southwark had disclosed nothing at all. This despite having stated in their Defence that “the precise circumstances of the disposal of [AA's] belongings are currently the subject of an internal investigation and further details will be given in evidence”. This internal report had in fact been completed by 22 August 2013, but had not been disclosed. The internal ‘Matthews’ report, technically solely into the destruction of Mr AA’s belongings. concluded:

that management failings that were alleged against two income officers and one resident officer had amounted to gross misconduct and against a further income officer had amounted to misconduct and that there had been management failures by two managers in the Residential Team in failing rapidly to establish the gross misconduct of the three officers responsible for that gross misconduct.

Nor had Southwark disclosed the tenancy file, the ‘iWorld’ records (income officer, repair and related records) or ‘EDMS’ records (residential team records).

This all came apart quite drastically when Counsel for Southwark in the course of opening statements waved about some letters purportedly from housing officers to AA which had not been disclosed, were not in the trial bundle, and were indeed later found to have been faked and not sent. Not the best opening.

On the second day of trial, Southwark were ordered to disclose the internal report (the Matthews report) and the tenancy file. Despite this the EDMS record was never disclosed, and the tenancy file turned out to be missing any entries at all after November 2010, despite the obvious subsequent activity.

Thus far, we have an unlawful eviction, and a destruction of Mr AA’s belongings which was both unlawful and in breach of Southwark’s own policies and procedures. Could it get worse? Why, yes it could.

Issue 4. Conspiracy, misfeasance in public office, negligence, breach of quiet enjoyment and article 8 breach.

This is so heavily based on the disclosed evidence, most particularly the Matthews Report, that I can’t even begin to summarise it. The evidence of what occurred is set out at paras 92 to 205 of the judgment. A few selected items would be that:

the ‘Subsequent Eviction Request form’ that had to be completed internally to request an eviction had apparently been prepared by the income officer and authorised by the area manager was nowhere to be found, giving rise to a clear suspicion that it had not correctly recorded the date of the possession order as being over 6 years before.

The Income officer had delayed writing to or visiting Mr AA until a few days before the eviction date (and it appeared that a letter of 15 April 2013 had not been sent at the time.

The usual process for a residential officer to be present at the eviction was ignored or circumvented. There was no Southwark officer present at the time of the eviction.

The keys were passed straight to voids, rather than to the residential officer as was standard practice.

The residential officer sent several emails stating falsely that the property was void and the contents could be disposed of as the tenant had removed what he wanted. The residential officer had wholly failed to follow Southwark’s procedures on belonging left in evictee’s flats.

On the day of the eviction there were a number of telephone calls between income officers, and their manager that were completely unexplained in their accounts to the Matthews internal investigation, despite those calls being put to them in the course of the investigation.

There were a number of subsequent emails from officers, in response to inquiries caused by Mr AA’s efforts to gain re-entry and return of his belongings, that were false and intended to mislead. For example, from the resident officer, who knew Mr AA had not been able to access the property after attending court:

“Voids just confirm (sic) to me that they have the keys and whatever was left in the property has been disposed of. There are pictures from Voids re the state of the property i.e. the occupier took what was needed and the rest was left in a real mess.”

To this can be added various other misleading statements, or silences in response to inquiries and indeed the Matthews internal investigation.

Findings

What the Court found was evidence of concerted actions by Southwark officers. The details are set out at 266 to 278 of the judgment.  In cumulation:

When the series of stages is considered in the round and in sequence, it can be seen that there was a central purpose of the concerted action, albeit that that purpose slowly transformed itself. The concerted action lasted from 27 December 2012 until 31 May 2013. Its initial purpose was to ensure that AA was evicted and that his chances of avoiding eviction by obtaining a further stay should be reduced or eliminated. Those involved turned a blind eye to AA’s possessions and showed, at best, a wilful disregard for them and, at worst, were completely indifferent as to whether they were retained or destroyed and gave no thought to them at all. However, as soon as the eviction was completed, the concerted action turned its attention to covering up the fact that those concerned with the eviction had acted in a flagrantly unlawful manner thereby ensuring that AA lost his possessions and the opportunity of obtaining re-entry.

Had the unlawful steps leading to AA’s eviction not occurred, it is highly likely that AA would have save his tenancy and kept his possessions. Had the cover-up not occurred, AA would have gained re-entry and would have succeeded in paying off his arrears and he would have been able to retrieve his possessions from the flat or from the storage facility to which they would have been taken.

And the upshot? The conclusions run from 281 to 298 of the judgment. And for Southwark they are as bad as they could possibly have been and have to be quoted at length.

The unlawful actions that occurred

Ulterior motive.
Mr Davis and Ms Okwara were determined to obtain AA’s eviction whether it was lawfully obtained or not. Their motive in acting as they did was demonstrated to be an “eviction at all costs” motive. There is no other explanation for Ms Okwara’s delay in attempting to notify AA of the date of the eviction, in only half-heartedly attempting to carry out a home visit, in apparently hiding the relevant documentation from the Housing File and in making no attempt to obtain the permission of a judge to apply for a warrant. Equally, there is no other explanation for the series of lies that they told Mr Matthews about the telephone calls they made during the eviction and in deliberately engineering an eviction at which neither the income nor the resident officer were present and in making no effort to identify AA’s possessions, prepare an inventory of them and then remove them safely to storage.

It has to be remembered that AA had good prospects of persuading a judge not to approve an application for permission to issue a warrant, of obtaining a postponed possession order with no fixed date or a stay or suspension of the order or of a warrant. This was because AA had virtually eliminated his arrears of rental shortfall two years before the eviction attempt was started and LBS had acquiesced in the subsequent non-payment of the shortfall arrears for two years before Ms Okwara became AA’s income officer. AA proved subsequently that he could raise the necessary funds to pay off the totality of the arrears and the extent of the arrears was unsatisfactory but not excessive. It follows that Ms Okwara would have been pessimistic in her consideration of whether there were good prospects of evicting AA straight off.

It follows that both Mr Davis and Ms Okwara had an ulterior motive in seeking AA’s eviction. They had limited prospects of evicting him lawfully and they therefore appear to have embarked on an eviction with the intention of evicting AA even though this could not be done lawfully.

Non-compliance with the EP – eviction.
LBS’s EP was the expression by a public body of the policy it wished to adopt with regard to the way its evictions were carried out. AA and all other tenants had a legitimate expectation that that policy would be complied with. Any significant departure from that policy by LBS would therefore be unlawful. The many departures, particularly the absence of both AA’s income and resident officers, gave rise to a significantly unlawful eviction.

Failure to obtain a judge’s consent to an application for a warrant.
The judgment has already determined that the eviction was unlawful and an abuse of process in being undertaken pursuant to a warrant which had not been proceeded by a successful application to a judge for permission to issue it. The relevant possession order was more than six years old when the warrant was applied for and, as has already been demonstrated, a court is usually unwilling to authorise a warrant in such circumstances. The eviction was also an abuse of process.

Abuse of process in the eviction proceedings.
In addition to the abuse of process arising from the way that the warrant was issued without the prior permission of a judge, LBS also conducted its defence to AA’s applications in the district judge’s court on 22 April 2013 and the circuit judge’s court on 23 April 2013. Ms Okwara was conducting a DIY eviction on behalf of LBS and she had rights of audience for that purpose. That required her to assist the court, to provide the court with accurate and full information about the tenancy, the tenant and the breaches founding the application for possession and to make a full note of the judge’s reasons for his decision. In fact, she provided no detail or documents, failed to inform the judge about the strengths of AA’s case for a stay, was not prepared to enter into any dialogue with him about the arrears and had failed to comply with the EP. In short, the conduct of the proceedings associated with the application for a warrant was an abuse of process.

Unlawful eviction.
The eviction was unlawful in a number of different respects. The warrant was issued without first obtaining the permission of a judge. The eviction policy of LBS was infringed in a number of significant respects. The bailiff did not surrender possession to LBS but to a carpenter employed by an independent contractor who had no authority to sign the warrant. Finally, the tenant’s application to stay or suspend the warrant was defended in an abusive and unfair manner.

Interference with right to quiet enjoyment.
The eviction and the way that it was carried out gave rise to breaches of the tenancy agreement by LBS. These breaches gave rise to a gross interference with AA’s right to quiet enjoyment.

Non-compliance with EP – possessions.
The non-compliance with the EP with respect to AA’s possessions coupled with the removal and destruction of those possessions was unlawful.

Breaches of duty as income and resident officers.
The income and resident officers owed duties of fair dealing, candour and non-discriminatory conduct to LBS. In breach of those duties, Mr Davis, Ms Okwara and Ms Ashley failed to reveal to LBS that the eviction had been carried out in breach of the EP, that AA’s possessions were at risk of being destroyed and that their conduct had been unfair, lacking in candour and actually or potentially discriminatory.

Abuse of process – subsequent proceedings.
The five applications made by AA after he had been evicted were defended with similar abusive practices as the earlier proceedings had been. In particular, Ms Okwara and Ms Ashley played no part in them and failed to bring to the attention of the court or LBS’s legal representatives the details of their unlawful conduct. Subsequently, LBS attempted to conduct the proceedings as if all claims save for a limited Torts (Interference with Goods) claim had been excised from the proceedings when no such limitation had been imposed. This conduct flowed from the coercive and collusive conduct of LBS officers and was also an abuse of process.

Breaches of article 8.
LBS’s unlawful conduct in seeking and obtaining possession of the flat and in removing and destroying AA’s possessions was unlawful and failed to show due respect to AA’s private life. It was therefore unlawful.

(5) Conclusion – Conspiracy
It follows that the various officers of LBS conspired to evict AA by unlawful means, to seize and destroy his possessions by unlawful means and to cause him harm and loss by evicting him and dispossessing him of his possessions.

(6) Other causes of action

Misfeasance in public office.
Mr Davis, Ms Okwara and Ms Ashley exercised their powers as public officers in relation to a local authority secure tenancy for an improper motive. They each acted with the intention of harming AA be evicting him when there were no reasonable grounds for evicting him and by arranging for his possessions to be seized and destroyed unlawfully. Each is, in consequence liable for misfeasance in public office and LBS is vicariously liable for the commission of that tort.

Negligence.
LBS is, in respect of the destruction of AA’s possessions liable in negligence to AA. It was unreasonable and a breach of the duty of care owed to AA in respect of his possessions to allow them to be destroyed and to fail to act to prevent that occurring although it was known to its servants that the possessions were at risk of being destroyed yet nothing was done to prevent that occurring.

Breach of the covenant of quiet enjoyment.
LBS is liable in contract for acting in a way that has significantly breached AA’s entitlement to quiet enjoyment of his tenancy.

Article 8 of the HRA.
LBS has breached AA’s entitlement to respect for his private life.

TIGA.
The unlawful seizing and subsequent unlawful destruction of AA’s possessions was both negligent, a conversion of those goods and amounted to tortious conduct. It therefore gives rise to an entitlement to recover the loss that thereby resulted pursuant to the TIGA.

The matter was listed for a further quantum hearing, but Southwark settled with Mr AA in the interim.

Comment

This is a devastating, awful judgment. The behaviour of Southwark’s officers was appalling. The circumventing of policy and procedure appears to have been unconstrained and not picked up at all by Southwark until Mr AA pushed his case, or indeed at all.

As I’ll come on to, there is much else of concern besides. But before I go into that, I need to register a worry about the judgment.

The High Court makes very definite and very serious findings against some named Southwark officers. Those officers were not brought as witnesses by Southwark (perhaps unsurprisingly given the Matthew Report and apparently ongoing disciplinary actions). But this means that the Court makes findings on the actions and intentions of these individuals without them having the ability to give evidence and be cross-examined, or otherwise respond to the accusations. While the Matthews Report was before the court (though not us! If anyone has a copy…) this apparently only deals with the events leading up to and around the disposal of Mr AA’s belongings.

While the evidence recorded in the judgment seems strong on the after the event coverup, and on a conspiracy around the destruction Mr AA’s belongings, and also on procedural failings deliberately entered  into, or at the very least unquestioned by anyone involved, around the actual eviction, I am less convinced that the evidence set out in the judgment supports a finding of conspiracy to evict (unlawfully). The evidence on that, mostly around the failure to apply for permission, could potentially well be cock up rather than conspiracy. However, the mysterious absence of documentary evidence from the tenancy file on that did not help.

Qualms about the full extent of the judgment aside, what can be taken from this?

First, I suppose, is that the usual response to a tenant saying ‘my housing officer is out to get me’ from the tenant’s advisor – being ‘they treat everyone this badly, it isn’t a conspiracy’ – may actually have to be considered on each case. Because just perhaps it is a conspiracy. (I’ll stick with my view that usually it isn’t, it is rather just a standard level of rude incompetence, but that cannot be a default response any longer).

Second, housing officers’ documentary evidence needs to be up front and provided in full in possession and eviction proceedings. If it isn’t, that needs to be challenged – maybe an adjournment for disclosure. And exactly what that disclosure should extend to is clearly an issue. From Southwark’s limited disclosure in this case, just asking for ‘the tenancy file’ is not enough.

Third. The County Courts need to be alive to the issue of the date of possession order, and court admin staff should be appropriately trained. Administrative issue of warrants is only an administrative matter if the underlying possession order was made inside a 6 year period.

Fourth. Disclosure, again. Once this matter had got into the hands of Southwark Legal, it appears that they were stonewalled by their clients on relevant documents and information. It also appears that they failed to disclose material which was  to hand and relevant and even, in the case of the Matthews report, referenced in their pleadings.

Even after the High Court judge had weighed in and demanded disclosure during the trial, the disclosure was at best partial, with EDMS records not disclosed.  I’m sorry to have to say that the obvious conclusion is that the extent of Southwark’s disclosure in any given matter has now to be doubtful, because this case demonstrated an inability to adhere to the basic rules of disclosure.

It is no answer for Southwark to say this case was against a litigant in person, or that they decided a document that they had referenced in pleadings turned out to be sensitive, or that they had misjudged the extent of the claim against them.

Fifth. Disclosure again. Documents are ‘missing’. As with the ‘missing’ tenancy file after November 2010 here. Disclosure requires a full statement of relevant documents that were under the party’s control but no longer are, and the reason why they are no longer available . ‘Missing’ by itself is not an answer and should not be taken as such. 3 years of missing tenancy file invites conclusions, as in this case.

And there is another lesson, perhaps a humbling one for those of us who act for tenants. Mr AA appears to have been content to act for himself, though had representation in one of his possession hearings. But what would we have heard if he had called as new client enquiry? What case would we have assumed? Unlawful eviction, perhaps. Destruction of belongings certainly. But beyond that?  I think it is doubtful, though that may just be my confession.

Cotton & Ors, R (on the Application of) v Secretary of State for Work and Pensions & Ors [2014] EWHC 3437 (Admin)

This was the Liberty backed judicial review of the bedroom tax regulations on the basis that the regulations amounted to an article 8 breach, or an article 14 breach read with article 8, or that the regulations were irrational. At issue was the status of separated families where there was shared care.

One claimant’s situation was that:

In February 2012 Southampton County Court made a shared residence order providing that the children should reside for one week at a time with each parent. The order recorded that this would be in the best interests of the children. This arrangement was put into effect. From July 2012 Ms Cotton received child benefit for her daughter, while her ex-husband received child benefit for her son.

The result of these arrangements was that Ms Cotton had responsibility under the Regulations for her daughter, but not for her son. Accordingly, from 1 April 2013 she was entitled to claim housing benefit calculated by reference to the bedroom which her daughter occupies, but not her son’s bedroom. This meant a reduction of 14%, which amounts to £13.28 per week. However, in August 2013 Ms Cotton became the primary carer of both her children. There is no evidence as to why this happened – for example, whether for some reason the shared care arrangement was not working or because circumstances changed. As a result Ms Cotton’s housing benefit was reinstated to its pre-April 2013 level. (DHP had been in payment during the April August 2013 period).

The Second Claimant had care of a nine-year-old daughter and a ten-year-old stepson in a separated family at weekends and school holidays, but was facing the two bedroom deception on a three bedroom property. DHP had been in payment, with interruptions, but was currently in payment.

The third claimant had roughly 50/50 shared care of his 13 yo son. The mother received the child benefit. The third claimant was subject to a one bedroom deduction. He was receiving DHP on a two monthly grant basis, which continued with a couple of interruptions in the past.

The Claimants’ argument was that a failure to include the bedrooms required for the children to stay within the assessment for HB amounted to a breach of article 8.

This did not get very far. The Court’s opening observation was:

A short answer to this claim is that as a result of the DHPs received by each of the claimants, which have completely compensated for the reduction in housing benefit paid to them (or would have done, in the case of Mr Hutchinson and Mr Cohen if the correct applications had been made), none of the claimants has suffered any interference with their family life capable of amounting to a breach of article 8. They continue to live where they lived before the changes in housing benefit. Their children continue to live with them to the same extent as they did before. They have the same net income. There is at most the possibility of a change in these circumstances in the future, coupled with a degree of understandable anxiety about this possibility and the stress involved in making further applications for DHPs. Ms Lieven submits in her skeleton argument that interference in the claimants’ article 8 rights comes at the point when the loss of their home becomes a real and immediate prospect. On any view that point has not yet been reached.

However, the court went on the consider the position based on the possibility of DHP being withdrawn in the future (and these were, on the whole, short term awards of a few months at a time). On this, the DWP’s position was overstated.

Mr Coppel for the Secretary of State submits that because local authorities are required to exercise their discretion in accordance with public law principles and to comply with the Convention, it would not be open to them to withdraw DHPs if that would constitute an infringement of the claimants’ article 8 rights. That is so, but it begs the question whether or in what circumstances there would be such an infringement. I consider, therefore, that it is necessary to grapple with that question, as both parties urged me to do.

Moreover, it seems to me that there is at least an element of inconsistency in the Secretary of State’s position. Mr Coppel submits that the present claim is bound to fail as a result of the decision of the Court of Appeal in MA. However, that decision, as has been seen, depended heavily on the availability of DHPs for disabled people. However, the Secretary of State has refrained, at least in these proceedings, from saying that DHPs should generally be available to parents with secondary responsibility in cases of shared care. Indeed he declined an invitation by the claimants’ solicitors to amend the Guidance to specify that they should be available in such cases, preferring to leave this to the unguided discretion of local authorities. Moreover, when the issue of shared care was raised in the House of Lords debates on the 2012 Regulations by the Bishop of Norwich, the response of the Minister for Welfare Reform, Lord Freud, was not that DHPs would usually (or at all) be expected to deal with such cases, but that the taxpayer should not have to pay for two bedrooms for any individual child.

However, any assessment on possible changes in the DHP situation for these claimants was on the basis that:

that the withdrawal of DHPs would mean that the claimants could not continue to live in their current homes and that their children would no longer be able to live with them on a regular basis, but that a strong and loving relationship with their children would nevertheless continue. The children would lose one of what they presently regard as their two homes, but would not face any risk of homelessness or destitution and would continue to be able to live with the parent who has primary responsibility for them and continue their current schooling.

The result, in this judgment, was that

while I recognise the difficulties which the claimants may face, the situation with which I am dealing in the present case falls far short, in my judgment, of what would be required to constitute an interference with the claimants’ article 8 rights.

Further, the issue of separated families had been raised in Parliament (or at least the House of Lords) in the course of the passage of the regulations. Therefore:

There can be no doubt that the issue was drawn to the attention of Parliament, and that Parliament nevertheless voted to approve the Regulations. Parliamentary approval of the Regulations was an important feature of the Court of Appeal’s decision in MA. After summarising relevant parts of the debate at [31] to [33] of his judgment, Lord Dyson MR returned to the topic at [81] in giving his overall conclusion on the issue whether the discrimination against disabled people had an objective justification:

“Secondly, the need for the court to be cautious about finding unlawful discrimination of a statutory instrument passed by affirmative resolution of Parliament is heightened by the fact that some of the principal complaints that are made by the claimants were expressly raised and discussed during the parliamentary debates and rejected.”

The context for this statement was the issue whether there was justification for discrimination, but the reasoning applies similarly to the question of interference with article 8 rights as a result of legislative decisions in the field of economic and social policy.

Thus, following MA, there was a high threshold to meet to show unjustified interference with article 8 rights:

For these reasons I conclude that even if the reduction in the claimants’ housing benefit brought about by the 2012 Regulations has the effect of compelling them to move to a smaller property where their children cannot live with them, that will not of itself be an interference with their rights under article 8. Something more would be needed to reach the high threshold required in this context. In practice, however, if that something more were to exist in any particular case, the probability is that DHPs would in fact be made by a claimant’s local authority.

The regulations were not without reasonable foundation. Following MA and Ors:

I accept also that, like MA, this is a case where there is no readily definable category of persons who might be made the subject of an exemption. If parents whose children stay with them for about half the time, why not one or two nights a week? Why not grandparents or other close family members? Ms Lieven’s response was that a line has necessarily to be drawn somewhere in welfare cases, that the claimants were only required to show that the Secretary of State had failed to justify the Regulations in their case, and that it was for the Secretary of State to bring forward appropriate proposals. I accept, however, that the difficulty of defining an appropriate category of persons with secondary responsibility in shared care cases to whom the Regulations should not apply is a relevant consideration, for the same reasons as given by the Court of Appeal in MA.

For the purpose of this stage of the argument, I am proceeding on the basis that although the fact that the claimants have to move to a smaller property where their children cannot live with them will not of itself be an interference with their rights under article 8, there may be cases of particular hardship over and above the reduction in family life which that situation necessarily involves and that such cases of particular hardship may on appropriate facts pass over the high threshold required to amount to an interference with article 8 rights. In that event, I accept that local authorities would be required to consider applications for DHPs so that if in a particular case a reduction in housing benefit did threaten to infringe Convention rights, the relevant local authority would have a duty to consider awarding a DHP to avoid that infringement. In the light of MA, that is the appropriate approach to the question of justification. (Conversely, however, if — contrary to my decision — the appropriate assumption is that if the claimants have to move, that will of itself interfere with their article 8 rights, whether the availability of DHPs provides sufficient justification is less clear. Such a conclusion would be tantamount to deciding that in every case where a parent with significant secondary responsibility would otherwise be forced to move, there is an obligation on the state to make good the housing benefit shortfall by means of DHPs. That would appear to be a far-reaching conclusion, although on the view which I take it does not arise).

So, there was no article 8 breach because DHP was in payment.

Even if DHP had not been in payment, simply having to move to a smaller property would not in itself amount to an article 8 breach without more.

And even if article 8 rights were engaged and arguably breached, there would be an obligation on the local authority to consider paying DHP, and thus the DHP scheme amounted to sufficient justification to prevent the putative Article 8 breach, and to prevent the regulations from being manifestly without reasonable foundation.

The followup arguments on article 14 discrimination against ‘parents with secondary responsibility’ (though accepted as an ‘other status’ for discrimination purposes) and irrationality of the regulations consequently failed.

Comment
Given recent Upper Tribunal decisions (referenced in this judgment), this does not come as a huge surprise. As with other challenges, DHP actually being in payment is to a degree fatal to establishing a human rights breach in the regulations. It is disappointing to see the court take this view even on manifestly short term DHPs, and for a situation that is not covered in the DCLG guidance on DHP support, but it does cement the position that we have previously observed, that DHP in payment is increasingly a requirement in individual cases to avoid the regulations being unlawful.

I’m aware that a number of appeals to the Upper Tribunal have been stayed pending this judgment. This decision will not be good news for the tenants.

The facts in Nzolameso v Westminster CC are pretty unremarkable, but the effects of the Court of Appeal’s judgement are likely to reverberate through every new homelessness application, especially in the London area.

Ms N is a parent of five children, who were evicted from their 4 bedroom house in Westminster in November 2012 following imposition of the housing benefit cap. WCC accepted the full housing duty towards Ms N and offered a five bedroom house as temporary accommodation in Bletchley, near Milton Keynes (approximately 50 miles away from Westminster). The Council considered this offer reasonable given the severe shortage of both temporary and permanent accommodation within the borough. Ms N refused it, stating that it would disrupt the children’s schooling and that she would be deprived of the important emotional and practical support of her friends in the Westminster area, with whom she had built up links over 4 years.

Ms N argued in the County Court that WCC failed to consider whether there was anything closer to Westminster from the available housing stock that might be suitable for Ms N and her family, in order to bring it into line with its duty under s.208 of the Housing Act 1996. HHJ Hornby nevertheless dismissed that appeal and the CoA heard the second appeal on 29/9/2014.

Here, Ms N submitted that by asking itself the wrong question, namely whether it was reasonable for Westminster to have offered accommodation out of borough, the Council had short-circuited any enquiries that might have been made into the available housing stock (including stock on the open market) to make it more reasonably practicable for Ms N to accept. WCC’s response was that the only relevant question for the reviewing officer was whether the offered property met her needs and that the Council’s resources and forecasts of likely future demand were relevant when deciding whether an offer was reasonably practical (relying on R (Calgin) v Enfield LBC).

The Court found that to expect a local authority to search stock within its own and neighbouring boroughs until a suitable match was found, without regard to the needs of present or potential applicants, placed too heavy and disproportionate a burden on its resources. This also meant that there was no requirement on the reviewing officer to explain why this property had been offered in preference to any other property that might be available, nor was there any reason to believe that the Council’s resources had changed substantially between the dates of the initial and the review decision. The appeal was therefore dismissed.

Comment

While at the outset I noted the impact this decision was likely to have on future discharge decisions, the judgement leaves a number of unsatisfactory loose ends. For example, paragraph 10 of the judgement reads (in connection with s.208):

Accordingly, although the section reflects a desire to ensure that the homeless are accommodated within the local authority area in which they have been living, it recognises by its very terms that authorities cannot always achieve that objective. The question raised by this appeal is what factors can properly be taken into consideration by a local housing authority when deciding whether it is reasonably practicable to accommodate a particular homeless person within its own district, bearing in mind that, as in the present case, the accommodation may be of no more than a temporary nature.

Does this mean that when the issue is discharge by way of permanent accommodation, we can expect Courts to be more critical of a decision to locate out of borough? I’m afraid I do not follow the logic of such an inference. If an applicant is expected to establish roots in another (distant) area, it is more reasonably practical to do so if that placement is not temporary. Surely therefore in cases of discharge under s.193(7), the existence of prior links with the borough should be less pre-eminent?

Secondly, local authorities cannot discharge their duty in a routine and unthinking manner (paragraph 20), which seems very difficult to prove when reviewing officers can be assumed to have had regard to their own resources, projections, forecasts etc. when producing their decisions.

As a footnote, we have been shown a ‘companion’ decision of the same Court in Hegab v Westminster CC (B5/2014/1528 (A)). The issues on appeal were similar, except that Ms Hegab was offered accommodation in Newham. However, the appeal became academic following a burglary at the property, as a result of which the applicant was offered accommodation in Redbridge.

Just a brief note, partly about Barnet’s Allocation policy and partly about the surprising way that things can develop from a blog post.

In September 2014, I noted that Barnet’s proposed changes to its allocation policy had the effect of excluding domestic violence victims from any priority for social housing, where that had had the highest priority.

This was picked up by Barnet and Whetstone Press, who did an article after calling for a chat and a quote.

From there, the new Barnet Councillor and generally excellent Reema Patel (@ReemaSPatel on twitter) picked it up – and tirelessly ran with it, through a petition, media, questions in council and making sure the Labour group pursued the issue. (Disclaimer, Reema and I had a chat about the operation of the proposals and what an alternative might look like).

And now Reema’s dedicated work has paid off – Barnet council is to re-draft the proposed changes to the allocation policy to ensure DV victims retain band 1 priority. This is a good thing (and possibly Barnet avoiding being unlawful) , and I’m delighted the blog played a small part in it. As an illustration of the way things can work in the social media age, it is small but encouraging.

This is a post about the consultation provisions in ss.20, 20ZA, Landlord and Tenant Act 1985, applicable in respect of service chargeable costs. If you’re not interested in long leasehold law (which, looking at the site stats for most popular pages, is most of you), then look away now.

On Friday, the Court of Appeal handed down the decision in Francis and another v Phillips and others [2014] EWCA Civ 1395 and, thankfully, the decision of the High Court was overturned (in part).

The thrust of ss.20, 20ZA, 1985 Act is that, if a landlord (which can include a management company under a tri-partide lease) wishes to recover more than £250 from any tenant in respect of “qualifying works” or more than £100 per tenant in any accounting period in respect of a “qualifying long term agreement” then he must either consult in accordance with the prescribed requirements or obtain dispensation from the FTT/LVT.

One obvious issue is how should this £250 be calculated? In Martin v Marylands Estates Ltd [1999] EWCA Civ 3049 (a case on the consultation provisions as they read prior to the amendments in the Commonhold and Leasehold Reform Act 2002), the Court of Appeal indicated that it was a “triviality” threshold and that it was, in effect, a “major works project” test. So, if replacing the roof cost £150 per tenant, there was no need to consult; if, within the same financial period, the landlord then spent another £150 per tenant replacing broken doors, then, again, no obligation to consult arose. Most (indeed, probably all) practitioners thought that this approach would carry through into the post-2002 Act consultation regime.

Which brings us Philips v Francis (as it has become known). We’ve covered the background in our previous post on the case (here) and, in summary, the position is this. The landlords decided to do works to a development which had the effect of (in broad terms) doubling the service charge costs per year. The leaseholders objected and issued proceedings in the county court seeking declarations as to, inter alia, the recoverable service charges. Two issues were of particular importance for us:

(a) the landlords were paying themselves around £100,000 in wages for managing the site, reimbursed by the service charges;

(b) the tenants contended that the works should have been the subject of consultation and, as they had not been, the £250 cap applied.

We can skip over the county court decision since there isn’t a full transcript and it is only the county court. The High Court found against the landlords. The first issue (management fees) was relatively simple and clear; the lease terms relied upon (and set out in the previous post) provided a right to recover the costs of third party management, not self-management.

On the second issue, the landlords (and county court judge) had approached matters on the basis that these works were, for the most part, seperate “sets”, such that, applying Martin v Marylands, there was no (or only very limited) obligation to consult. The High Court disagreed. The focus of the consultation regime was on the cost to the leaseholder; if the £250 threshold was crossed, even on a cumulative basis, then the consultation requirements were triggered. Furthermore, the £250 figure had to be applied annually and would include day-to-day (reactive) repair costs, not just major works.

Now, I confess that when the High Court case came out, I was quite tired and didn’t really appreciate the significance. It wasn’t until a few days later (as you’ll see in the comments to the previous post), that the implications hit me. In particular:

(a) Where major works are being done which are already qualifying works (i.e. costing any one leaseholder more than £250), then this decision doesn’t change anything. For example, if you were replacing the roof (cost £300 per leaseholder) and windows (£350 per leaseholder), then you already should have been consulting on each project. Nothing in this decision affects that.
(b) The first problem comes, however, where the individual works were not going to cost over £250. Say, for example, that the roof repair costs were £200 per leaseholder and the windows a further £200 per leaseholder. Prior to this case I think most people would have said that there were no qualifying works here as neither project was costing a leaseholder more than £250. This decision means that we’d be wrong to continue with that approach. Now, we have to look at the total cumulative cost to the leaseholder (in this example, £400). Which means that we now need to consult.
(c) The second problem comes with what might be called “totting up”. Suppose lots of small projects are being planned in any year (drain flushing, minor repairs, etc). It might be said that if those cumulatively add up to more than £250 being charged to any leaseholder, then s.20 is now applicable. That, I suspect, is the worst case scenario. How would it work with an unexpected repair which suddenly took the total costs over £250? Is there a distinction between planned works and unanticipated costs?

In addition, I have concerns about people applying this decision retrospectively. My scenario (b), above, seems likely to be relatively common. Are leaseholders (particularly those who are recalcitrant payers) now going to suddenly allege retrospective breaches of s.20 and not pay their service charges? Do agents/landlords/RMCs need to apply for retrospective dispensation?…

Athough not mentioned by me at the time, there was another problem for leaseholders in that the effect of the decision would have been to increase service charge costs, given that most landlords/agents charge a fee for conducting a s.20 consultation exercise. Given that you might now need 10 such exercises a year, rather than one every few years, that could get quite expensive.

The Court of Appeal

Taking the “qualifying works” issue first, the Court of Appeal were satisfied that the “aggregating” approach (as it became known) was wrong. It could give rise to very serious practical problems, particularly if urgent work became necessary. It was no answer to say that a landlord could seek dispensation from the Tribunal as that would have legal and administrative costs and, of course, litigation risk. To consult leaseholders on all items of expenditure would add greatly to the cost of management. The real remedy for leaseholders was always s.19, Landlord and Tenant Act 1985, i.e. the requirement that service charges be reasonably incurred and represent reasonable value for money.

The annual approach was also wrong as a matter of construction. Service charges were not necessarily calculated on an annual basis.

It was unnecessary to consider whether Martin v Marylands was right. What was clear was that whether or not work was one single “thing” or separate “sets” was a question of fact which should be answered in a commonsense way, taking account of al the relevant circumstances. That would be likely to include (i) where the work was carried out; (ii) whether they were the subject of the same contract; (iii) whether they were done at more or less the same time; (iv) whether the works were of the same or similar character. Ultimately, it will be a question of fact and degree.

Interestingly, the Court of Appeal also went on to consider (albeit briefly) what “qualifying works” actually were. Unhelpfully, the Act just defines it as “work to a building or other premises”. There was, said the Court of Appeal, no requirement that the works have any permanent effect or modification.

The management charge issue can be dealt with quite shortly. There was in fact two possible contractual rights to management costs; one made express provision and one by more general words. The express provision governed and the more general words could not be relied upon since it would allow double recovery. I won’t say any more about this since, frankly, it all turns on the wording of the particular lease.

Conclusion

So, although the Court of Appeal declined to say whether Martin v Marylands was still good law, they have ended up adopting almost the same idea – “sets” of works are fine and it’s a question of common sense /fact and degree whether it is one or multiple “sets”. That, I believe, is a good result for both landlords and tenants and the brief Morrittian Heresy has been suppressed.

Jakimaviciute, R (On the Application Of) v Hammersmith And Fulham London Borough Council [2014] EWCA Civ 1438

Eligibility for allocation list, reasonable preference and homelessness.

After a run of Court of Appeal housing decisions that might be mildly described as disappointing, it is good to see one that is definitely right, albeit apparently reluctantly given.

R (Jakimaviciute) v Hammersmith & Fulham (our note here) was a judicial review permission decision on a challenge to H&F’s allocation policy excluding the ‘homeless in long term secure temporary accommodation’ from being qualifying persons for the Part 6 housing list. The High Court found that, although such persons were indeed within the ‘reasonable preference’ definition, the requirement to give a ‘reasonable preference’ in an allocation scheme only took effect once the person was on the housing list. Thus H&F had not unlawfully failed to give J a reasonable preference, because she was excluded from the list, and reasonable preference didn’t come into play.

J appealed to the Court of Appeal.

A brief recap of relevant provisions.

Housing Act 1996

160ZA(6) Except as provided by subsection (1), a person may be allocated housing accommodation by a local housing authority in England (whether on his application or otherwise) if that person –
(a) is a qualifying person within the meaning of subsection (7), or
(b) is one of two or more persons who apply for accommodation jointly, and one or more of the other persons is a qualifying person within the meaning of subsection (7).
(7) Subject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.
And
“166A(1) Every local housing authority in England must have a scheme (their ‘allocation scheme’) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.
For this purpose ‘procedure’ includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.
…
(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to –
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs).
The scheme must be framed so as to give additional preference to a person with urgent housing needs who falls within one or more of paragraphs (a) to (e) and who … [is a member of the regular forces, etc.]”
H&F had included in their allocation scheme, the following as a class of person who ‘does not normally qualify’ for registration (on the housing list):
Homeless applicants placed in long term suitable temporary accommodation under the main homelessness duty, unless the property does not meet the needs of the household or is about to be ended through no fault of the applicant. Long term temporary accommodation can include private sector homes let via the council or a housing association under a leasing arrangement, and non-secure tenancies on regeneration estates.”

On appeal, Ms J argued that ’reasonable preference applied to the scheme as a whole, not just priority within it.

Mr Martin Westgate QC, for the claimant, submits that on the proper construction of Part 6 of the 1996 Act, the duty under section 166A(3) to frame the allocation scheme so as to secure that reasonable preference is given to certain classes of people is a fundamental requirement which applies to the arrangements for allocation as a whole, including the setting of any qualification criteria under section 160ZA(7). He places reliance on the structure and wording of the statute, on the legislative history, on considerations of policy and on the content of the relevant statutory guidance.

Meanwhile H&F relied on the discretion in s.160ZA(7).

Mr Baker, for the Council, submits that the claimant’s approach sits ill with the terms of the discretion conferred by section 160ZA(7) and that Parliament would have framed the provisions differently if it had intended such a result. Further, as a matter of substance, deciding who is to qualify is very different from determining priorities between those who do qualify. The exercise of the discretion to set the qualification criteria could in principle be challenged on Padfield grounds (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997) but no such case is or could be advanced here.

But unlike the Admin Court, the Court of Appeal were distinctly unimpressed by H&F’s arguments.

‘The Scheme’ covered the entire process, from application to allocation of housing, including qualifying criteria. S.166A(3) – the requirement to give reasonable preference – was a requirement for the Scheme, not just allocation.

If there was any question about the purpose of the legislation contained in the Localism Act amendments to Housing Act 1996, the Government’s consultation should have dispelled them. From the consultation document:

4.10 We want to provide local authorities with the power to decide who should qualify to be considered for social housing, while retaining a role for government in determining which groups should have priority for social housing through the statutory reasonable preference requirements ….
4.11 … We believe that the statutory duty on local authorities to frame their allocation scheme to give ‘reasonable preference’ to certain groups, together with local authorities’ wider equalities duties, should serve to ensure that local authorities put in place allocation systems which are fair and that those who are vulnerable and in housing need are properly protected. However, to provide a safeguard, we intend to reserve a power to prescribe by way of regulations, that certain classes of people are (or are not) qualifying persons, if there is evidence that people in housing need are being excluded from social housing without good cause. […]
4.15 The government believes that social housing should continue to be prioritised for the most vulnerable and those who need it most. We think the best way to ensure a consistent approach to meeting housing need is to continue to set the priorities for social housing centrally. Consequently we do not propose to remove the reasonable preference requirements in the allocation legislation.”
This was confirmed in the response to the consultation.

And then there was the Govt Allocation of accommodation: guidance for local housing authorities in England, 2012.

3.20 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.
3.21 Housing authorities should avoid setting criteria which disqualify groups of people whose members are likely to be accorded reasonable preference for social housing, for example on medical or welfare grounds. However, authorities may wish to adopt criteria which would disqualify individuals who satisfy the reasonable preference requirements. This could be the case, for example if applicants are disqualified on a ground of anti-social behaviour. […]
4.1 Housing authorities are required by s.166A(1) to have an allocation scheme for determining priorities, and for defining the procedures to be followed in allocating housing accommodation; and they must allocate in accordance with that scheme (s.166A(14)). All aspects of the allocation process must be covered in the scheme, including the people by whom decisions are taken. In the Secretary of State’s view, qualification criteria form part of an allocation scheme.”

The legislative history and statutory guidance thus both made clear that ‘reasonable preference’ was intended to apply to the scheme as a whole and not just the specifics of allocation for those qualifying.

The Court then, extremely politely one might think, pauses to note the ‘ironic feature’ that H&F’s own policy states that

in framing the Scheme the Council intends to give effect to the reasonable preference duty under section 166A(3), yet in its defence to the claim the Council contends that the function of setting qualification criteria is entirely separate from the duty to frame the scheme so as to secure the giving of reasonable preference to the classes specified in section 166A(3)

So, was the exclusion from qualifying a breach of the reasonable preference obligations?

Unsurprisingly, the answer was yes.

The disqualification effected by paragraph 2.14(d) is fundamentally at odds with the requirement under section 166A(3)(b) to frame a scheme so as to secure that reasonable preference is given to people who are owed a housing duty under one of the provisions of Part 7. The great majority of people within that class, far from being given any preference, are excluded altogether from consideration for housing accommodation under the Scheme; and they are excluded for a reason that cannot sit with Parliament’s decision to define the section 166A(3)(b) class as it did. It does not assist the Council to point to the fact that the only people to whom housing accommodation may be allocated under the Scheme are people within the section 166A(3) classes. It is the exclusion of a large proportion of one of those classes that causes the problem. Nor do I accept that the power to effect such an exclusion is inherent in the flexibility allowed to an authority in securing that reasonable preference is given.

And so a “ declaration that paragraph 2.14(d) of the Scheme is unlawful” was granted. Though H&F was invited to consider “If those falling within paragraph 2.14(d) have a lesser need for social housing than other people within the reasonable preference classes, the Council may wish to consider whether it is possible to reflect that factor in an appropriate banding structure under the Scheme in place of the impermissible exclusion effected by paragraph 2.14(d).”

Comment

Thank heavens for that! The Admin Court decision was not only, in my less than humble opinion, clearly wrong but provided councils with the means to bypass the statutory reasonable preference groups entirely. It would have made a mockery of the purpose of the statutory requirements, and ignored the statutory guidance entirely.

The broader point, beyond those in ‘long term secure temporary accommodation’ is that allocation schemes cannot in any way exclude from qualifying those in the statutory reasonable preference groups. The post Aweys latitude on allocation policies can only go so far.

The H&F previous Tory administration’s parting gift was a Court of Appeal defeat on allocation policy (I did warn the incoming Labour leader back in May that the policy was a liability…).

Now, H&F are far from alone in maintaining such a policy of excluding those with reasonable preference. Indeed H&F’s policy borrowed inspiration and detail from Barnet’s policy. I had a detailed critique of the apparent unlawfulness of Barnet’s policy from July 2013, which is now, thankfully, valid again, at least at that date (the notes can be downloaded here).

If Barnet had any legal officers left, I would imagine there would be some considering of this judgment going on. But they don’t. So we will have to see what happens.

As a footnote on ‘long term secure temporary accommodation’, Ms J had been in a PRS tenancy. But in Dec 2013, after the Admin Court decision, she was put back in the allocation scheme “because the owners of her current temporary accommodation defaulted on the mortgage and the property came under the control of receivers. The receivers indicated that they intended to seek possession and as such the council has concluded that it would not be reasonable to regard the accommodation as available to [the claimant] on a long term basis”. She had not got permanent housing by the date of the Court of Appeal hearing. H&F said this showed the flexibility of their scheme, but equally it shows the oxymoronic nature of ‘long term secure temporary accommodation’.

As a further footnote, the effect of the allocation scheme is worth noting. It introduced a 5 year residence requirement as well as restricting qualification to only (some of) the reasonable preference groups.

On 29 March 2013 there were 11,077 households on the register, of which some 49% had no identified housing need. By contrast, the Council would normally have access to about 500–600 units of social rented accommodation per annum. The new Scheme is a radical alteration of approach and is based on the following general principles: the focus is on applicants with the severest housing needs; applicants must satisfy a residence condition irrespective of housing need; and extra priority is available for qualifying applicants who satisfy the community contribution criteria. The introduction of the Scheme has resulted in a radical reduction in the numbers of qualifying applicants. By 9 April 2013 the size of the housing register had reduced to 1,359 households, and by 27 April 2014 there had been a further reduction to 831. Of those removed from the register following the introduction of the Scheme, only 519 were removed because they fell within paragraph 2.14(d); 3,701 did not satisfy the residence condition; and 5,551 had no qualifying need.

It strikes me as a little odd that they decided to regulate demand rather than address supply, given that this was a laissez faire Tory council administration, keen on market principles.

Following the Upper Tribunal judgment in SSWP v David Nelson and Fife Council, SSWP v James Nelson and Fife Council [2014] UKUT 0525 (AAC) [our report], the DWP has issued a Circular – HB U6/2014

The thing is that it isn’t quite right, in some quite important ways. Text and comments below.

HB Bulletin U6/2013 provided details of two First-tier Tribunal (FtT) cases. The judge in both these cases determined that the rooms designated as bedrooms by the landlord were not to be treated as such for the purposes of the Removal of the Spare Room Subsidy (RSRS). This was because, in their opinion, the rooms in question did not satisfy the “space standards” as set out in section 137 of the Housing (Scotland) Act 1987. (Annex A sets out the facts of the two individual cases).

Well, that isn’t quite what the UT sys the FTT decided, but never mind.

The Department for Work and Pensions (DWP) appealed these decisions to the Upper Tribunal (UT). The UT hearing was on 18 September 2014 before a three judge panel.

DWP has now received a favourable outcome in relation to these UT decisions, CSH/41/14 and CSH/42/14.

Favourable is a gloriously lawyerly word. The DWP’s arguments were described as ‘absurd’, but on the other hand, the FTT decisions were overturned. So, we will allow them ‘favourable’.

The Court decision

The UT found that the “space standards” set out in the Housing (Scotland) Act are not determinative as to whether a room is a bedroom for the purposes of the RSRS policy.

True.

Their view was that the starting point for determining whether a room is a bedroom is the landlord’s description of the property. Floor space is not of itself a determinative factor and small rooms should not be precluded from being a bedroom unless they have physical features or drawbacks that prevent them from being used as a bedroom by any of the people listed in regulation B13(5) and (6) (i.e. a child, an overnight carer or an adult).

Perhaps the DWP should have cross referenced their own guidance here – as mentioned in the judgment:

However we note that paragraph 5 of bulletin U6/2013 and the Secretary of State’s submission to us seem to indicate that his view is that there must be room for a normal single bed and so if there was only room for say one cot or one young child’s bed he would not, or would not generally, regard the room as a bedroom.

So there is a limit of a single adult bed, and enough room to make reasonable, practical use of that bed.

This means that it cannot be concluded a room is not a bedroom if it is less than 50 or 70 square feet without considering other factors as outlined below:

size, configuration and overall dimensions of the room
access
natural and electric lighting
ventilation
privacy.

Well no. The DWP present this as a set (and closed) list of factors. This was not what the judgment said. What the UT said was “a number of case sensitive factors will need to be considered including (a) size, configuration and overall dimensions, (b) access, (c) natural and electric lighting, (d) ventilation, and (e) privacy.”. That is ‘case sensitive factors’ – so depending on the individual circumstances of each case – and ‘including’ – so not a closed or exclusive list of factors. There could well be others. We should not forget that there is definitely a lower practical limit, as the DWP found out in argument:

So, for example, in so giving effect to the statutory language, in our view the argument advanced by the Secretary of State before us that any room will be a bedroom for the purposes of the regulation if its floor space is big enough to accommodate a single bed (size not mentioned) even if all the sides of that bed would touch a wall or an outward opening door is absurd. 

Then the Circular moves on from size to use.

In addition the judgment also stated that the assessment as to whether or not a room is a bedroom should ignore what it is actually being used for by the tenant. This means that rooms capable of being a bedroom should be classed as such.

No, or not entirely so. The judgment does consider that the assessment should be “essentially the assessment of a property when vacant; rather than how it is actually being used from time to time.” But, crucially, it goes on to say

However, this does not mean that issues concerning the designation of rooms as between living room(s), kitchen,bathroom, lavatory, storeroom and bedroom do not arise. For example, issues could arise (a) as to what should be designated as the living /dining areas of a property, and (b) the impact of a conversion of room to a bathroom or wet room (which could normally only be done lawfully with the consent of the landlord).

In short, room use can still be an issue, particularly where it addresses use required for reasonable occupation of the property, or adapted spaces (the room with a lift in it is referenced elsewhere in the judgment).

Where there is a dispute as to whether a room is in fact a bedroom and a local authority (LA) decides that it is, it should provide the tenant with reasons for its decision. Where LAs decide that a room is not a bedroom (taking into account the factors listed at paragraph 6 above) they should consider whether it is appropriate to re-designate the tenant’s property and if so a corresponding reduction in rent should be applied.

What the DWP fail to mention is that it falls to the Benefit Authority to actually investigate a dispute, whether by requiring further evidence or indeed inspecting if necessary. And that investigation potentially involves more than the list of factors that the Circular erroneously presents as closed, above. A rather important omission.

And then this rent reduction? Eh? This is a circular to LA as Benefit Authority. They can’t do rent reductions, even if the landlord is also the LA. If it is a housing association, even more so. This bit is, frankly, quite bonkers, and has nothing to do with the DWP or Benefit Authority.

Effect of the decision

The outcome of this decision is binding on all FtT decisions and all UT decisions made by a single judge across Great Britain.

LAs should ensure that any decisions made are consistent and follow the approach outlined in this bulletin.

I think that they should not, because doing that would be to fail to follow all the requirements of the UT decision.

Granted that the judgment was both long winded and not that easy to follow, but the DWP version in this bulletin has some simple and drastic errors of understanding and interpretation. Naturally, those errors of understanding and interpretation all fall on the side of making it easier for decision makers to decide that a room is a bedroom.

Charalambous & Anor v Maureen Rosairie Ng & Anor [2014] EWCA Civ 1604

The Court of Appeal has again thrown the cat among the tenancy deposit protection pigeons.

In Charalambous it had to grapple with the, admittedly fairly rare scenario, of a deposit taken entirely before the tenancy deposit protection schemes came into force where the tenancy had become periodic also prior to the protection schemes coming into force. To be clear in Superstrike v Rodrigues the deposit had been taken before the schemes came into force but the tenancy had then become periodic after the schemes came into force. Following Superstrike most commentators, me included, took the view that as there had been no receipt of the deposit during the time in which the tenancy deposit protection rules were in force there was no issue. Clearly we were wrong, at least LJ Lewiston who gave the sole decision thinks so.

Facts
Here N had given a tenancy which commenced in August 2002 for a fixed terms of one year. It was renewed for a further year in 2003 and 2004 then from 2005 became a statutory periodic tenancy and remained so. A notification under s21, Housing Act 1988 was served in October 2012. It was held valid at first instance and the tenants appealed.

Financial Penalties
There was no suggestion by the Court that the landlord was liable for any of the financial penalties. It was argued for N that she was not liable for the penalties under s213 and s214 and that the law should not be interpreted in such a way as to suggest that Parliament had intended that those penalties should apply to N immediately on the legislation coming into force. There was a fair bit of discussion here as to the nature of retrospective legislation. The upshot of this is that the Court made clear that retrospective legislation is possible but it must be clear that this is what Parliament intended.

S213 or S215
The Court resolved this issue by agreeing that s213 did not apply here as the deposit had not been received by the landlord at a time when the legislation applied. Accordingly, Parliament had not applied any form of retrospective penalty. However, the Court did not accept the follow on argument that s213 and s215 were inextricably linked such that a landlord could only be liable for penalties under s215 if they had fallen foul of s213. This is an interesting point. It is accepted that a landlord can be liable for penalties under s213 where they are not liable under s215 if they have acted to rectify their mistake in one of the ways permitted by s215. However, the Court has now created the converse situation. It looked closely at s215 which now reads:

215 Sanctions for non-compliance

(1) Subject to subsection (2A), if a tenancy deposit has been paid in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy at a time when–

(a) the deposit is not being held in accordance with an authorised scheme, or
(b) section 213 (3) has not been complied with in relation to the deposit.

(2) Subject to subsection (2A), if section 213 (6) is not complied with in relation to a deposit given in connection with a shorthold tenancy, no section 21 notice may be given in relation to the tenancy until such time as section 213 (6) (a) is complied with.

(2A) Subsections (1) and (2) do not apply in a case where—

(a) the deposit has been returned to the tenant in full or with such deductions as are agreed between the landlord and tenant, or
(b) an application to the county court has been made under section 214 (1) and has been determined by the court, withdrawn or settled by agreement between the parties.

The Court made much of the phrase “at a time” in s215(1). It held that this phrase meant that there might be “a time” when the requirements of s215(a) or (b) had not been complied with even if there was a previous time when they had been. Additionally, it held that the two obligations in s215(a) and s215(b) were disjunctive. A landlord had to meet both of them to avoid the penalty applying. There was some discussion about whether the landlord had met the requirement in s215(b) but the Court declined to rule on this definitively as it was not required. It indicated that if it had to rule it would probably have concluded that the requirement in s215(b) had not been breached as N was not obligated to protect the deposit under s213. However, the Court ruled that the requirement in s215(a) was breached because the deposit was not being held within an authorised scheme. Accordingly, therefore it took the view that the notification served by the landlord under s21 could not be valid because of the clear restriction in s215(1) and the fact that the landlord had not been able to rely on any of the savings found in s215(2A).

Retrospection and the Order
The Court drew further support for its conclusion on the main point and on the retrospective penalty argument from the wording of the Localism Act 2011 (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012. This brought the amended tenancy deposit provisions provided by the Localism Act into force on 6 April 2012. However, a provision contained in Article 16 of that Order which held that the amendments would apply to any assured shorthold tenancy “in effect on or after 6th April 2012″. The Court found that it was clear from this provision that Parliament fully intended at the time of the Localism Act being introduced, if it did not before, that there should be a degree of retrospection about this matter and that the penalties should bite to some degree on all tenancies then in existence. It gained yet more support from this because the Article gave a “grace period” for landlords to resurrect their position of 30 days from 6 April 2012 when they could place a tenancy deposit into an authorised scheme.

I should mention that the Court appeared to indicate that it would have taken the same view irrespective of whether it was considering the law under s213 and s215 as originally enacted or whether it was considering the law, as it was, after amendment by the Localism Act 2011.

Deregulation and Amendment
Interestingly, the deposit legislation is in the process of being amended (again) by way of s30 of the Deregulation Bill which has recently finished its committee stage in the Lords. This inserts new sections 215A to 215C into the Housing Act 2004 primarily to resolve issues caused by Superstrike. Initially I though that this might also resolve the problems in this case. Unfortunately it doesn’t. As the Court of Appeal itself noted the Deregulation Bill changes do not fix this situation. S215A which has the potential to resolve the issue does not resolve this issue because it only protects landlords where a deposit was taken prior to the introduction of the tenancy deposit legislation (s215A(1)(a)) and the tenancy became periodic “on or after” 6 April 2007 (s215A(1)(b)). The Court of Appeal has pointed out that the vehicle is there to fix the issue. From my reading of the Deregulation Bill changes the fix is actually easy. If the wording of s215A(1)(b) is altered so that instead of beginning “on or after” it begins “before or after” that would resolve the issue immediately. Whether the government will do this remains to be seen. I don’t doubt that there will be lobby groups encouraging them strongly to do so.

Comments
One other side point worth noting is that in the past there has been some doubt as to what the situation is if a landlord protects a deposit with a scheme but, due to the landlord no longer paying he scheme membership fee for example, that protection terminates. Arguably the penalties under s213 and s214 do not bite because at the trigger event, the receipt, the landlord had dealt properly with the deposit and there does not immediately appear to be an ongoing obligation in those sections. However, it is clear from this decision that the penalties under s215 would bite and a landlord would not in that case be able to serve a notification under s21.

For those (relatively) few landlords breathing a sigh of relief because they see themselves as not being captured by Superstrike this will be a worrying decision. They will not be caught by the financial penalties but they will now have to return the deposit or protect it in order to avoid being unable to recover possession of their properties using the powers provided by s21, Housing Act 1988.

As a final aside this decision also means that the decision in R(Tummond) v Reading County Court must be incorrect.

Appeal allowed, possession on notification under s21 set aside as the notification is invalidly served.

As will be clear,  P (A Child: Use of S.20 CA 1989) [2014] EWFC 775 is a family law case, but one which crosses with housing law. My suggestion is that it sadly shows that Family lawyers, and indeed Family judges really need housing lawyers with them at all times. It also illustrates the sheer lengths that the Royal Borough Of Greenwich will go to to avoid accepting a homeless main duty.

To skip most of the judgment, this concerned a child, P, and his parents, F & M. P was born to them in 2009, “whilst the parents were living apart. The father lived with the paternal grandfather (PGF) at an address in the Royal Borough of Greenwich (RBG). The mother was living in temporary accommodation at the time in London Borough of Redbridge (LBR).”

In 2012, LBR had taken P into foster care because of concerns over the parents’ ability to look after the child. “Those concerns ranged from poor standards within the home, inadequate supervision leading to a significant number of injuries, and reluctance to access medical attention for P. Both parents seemed to suffer a degree of cognitive difficulties which made parenting challenging for them. They had something of an unsettled lifestyle. From his birth until June 2012, P had resided with his mother in a number of properties sometimes with his father present in the home and on other occasions with her alone”.

LBR had then, frankly, messed about wholly inadequately in s.20 Children Act and family law terms for two years, for most of which P was placed with his grandfather PGF. The full and rather shocking history of the faffing and “shockingly and inexplicable” failures by LBR are set out in the judgment and will no doubt be dealt with in detail by family law bloggers.

Suffice it to say, after the half hearted commencement of proceedings for a placement order, LBR acknowledged that with adequate support, the parents could indeed probably care adequately for P.

That left a big problem. The parents did not have “settled independent accommodation”.

There is a clear recommendation that the transition plan can only start when the parents are in settled independent accommodation. Once in that accommodation and once they have readied it for the arrival of P, he can be gradually introduced back into his parents’ care with the support of Symbol outreach workers and in the knowledge that once they have receded the extended family will be living locally. The accommodation therefore needs to be the place in which the father and P have lived for most of their lives – Royal Borough of Greenwich (RBG).

But RBG were not only not interested in providing accommodation and support, they were set against it.

On 10th Oct RBG filed a position statement setting out in 3 short paragraphs that:
a. It did not agree with the making of a supervision order in its favour;
b. It was concerned at the timescales for rehabilitation because “the parents have not secured accommodation” and because RBG questioned the parents ability to care for P;
c. If the supervision order was made then RBG would continue to be responsible until P was living with his parents permanently – which suggests that once rehabilitation was complete they would withdraw which is wholly contrary to advice.

The hearing on 10th November was futile. The parents were no further forward in securing accommodation and it was clear that they were unlikely to receive help from RBG. Provision was made in that order for a statement to be filed by RBG housing and in default for an application to be made for the director of housing to attend the next hearing on 28th November. A statement was filed and through no error on the part of the parties the request made for the attendance of the director was not dealt with. That was unfortunate because the statement in the bundle is of little assistance. It suggests that RBG is not responsible for housing the parents, that they cannot be assessed as if caring for a child because they are not, and that if and when they do have a child living with them they cannot expect to be given any additional assistance with housing as there are many other equally needy people on the housing list in the borough.

At the hearing on 10th November, LBR agreed to fund a worker from Symbol to assist the parents in their attempts to be accepted by RBG as homeless, or in priority need. I do not intend to recite what the worker from Symbol, Ms Duffy, relates as her conversations with RBG housing. Suffice to say that she asserts that RBG children’s services have effectively instructed the housing department not to offer assistance because in their view P is not a “Greenwich” child. I intend to get to the bottom of that exchange and make findings as to what has been said. If such comments were made then it demonstrates a level of bad faith in RBG that will be of importance to anyone charged with reviewing these housing decisions. I would observe, however, that the attitude such comments betrays is entirely in keeping with the attitude revealed in the way that RBG has dealt with this application to date.

And what was the basis on which RBG refused to deal with the parents as homeless? (Not forgetting that RBG cannot lawfully refuse to deal with a homeless application, but this was not, it appears, put before the court). Well, according to the charity worker assigned to assist the parents, this was how RBG responded:

a. RBG first refused to accept that the father had the necessary connection with the borough when he clearly has;
b. The parents have not been assessed as needing housing with P because he is not in their care, in spite of the fact that RBG know my intention is to rehabilitate P with them and in spite of their duty to assess him as a child who is reasonably expected to be in their care;
c. They are assessed as needing a one bedroom property as they have no dependant and so if they insist on two they are advised that they will encounter bedroom tax issues;
d. Even though LBR has offered to pay a deposit and first months rent on a privately rented property RBG refuses to give the parents advocates or LBR the list of acceptable private properties as the parents are not assessed as being in sufficient need;
e. On 13th Nov – in response to advice that they should present as homeless by attending at housing office – the parents were there for 7 hours with their advocates during which they were finally allowed to submit a homeless application as a couple but not allowed to include P as they were told that he would have to be presented to the housing office to be included.

We should note that RBG contest these assertions, but RBG didn’t actually manage to provide any witness evidence on this, let alone by the director of housing, who was supposed to attend the hearing, but didn’t.

If the assertions by the charity worker are accurate (and they will sound familiar to many) then any housing lawyer would have had a judicial review pre-action protocol letter off the printer instantly. On the reasons allegedly given by RBG:

a. is not a reason to refuse an application. Straightforwardly unlawful.
b. is, I presume, based upon a misapprehension of Holmes-Moorhouse v LB Richmond upon Thames [2009] UKHL 7 [our report]. But Holmes-Moorhouse concerned a separated family, where the mother had settled accommodation and there were shared care orders. Here, the homeless household is father, mother and very clearly P is to be reasonably expected to reside with them, by the order of the court. RBG’s refusal would not only be unlawful but probably an article 8 breach as well.
c. Again, P was to be reasonably expected to reside with them. Bedroom tax issues would only kick in once permanent accommodation was found, but P would likely be residing. This is, of course, not a reason to refuse a homeless application, just a question of suitability of accommodation provided.
d. This is frankly barking. Without even accepting and deciding on a homeless application, RBG cannot have reached a decision on the nature of the support, assistance or duty owed to the household.
e. This is simply wrong. And also unlawful.

It appears that the position had changed somewhat by the time of the hearing in this case and that RBG had moved away from unlawful stalling and stonewalling. The Court, having described RBG’s actions as having ‘sought to put every possible obstacle in the way of an application to join the housing register’ (actually a homeless application), goes on to record the following:

I now turn my focus away from LBR to the RBG. The evidence before me today seems to suggest that there has been a complete and utter failure of the RBG to meet its responsibilities to provide housing to this family or even allow them to apply as a family such that these parents are prevented from bringing to an end the 2 ½ years (half of his life) that P has spent as a “looked after” child. Indeed the information that I have received suggests that the RBG has acted in bad faith and has sought to engineer a situation in which they would be freed of the obligations I might impose pursuant to a Supervision Order. I make no findings in that regard but intend to investigate that matter further when this case returns next week. I observe, however, that the most recent position statement from RBG indicates that the housing department are now satisfied that it can be reasonably be expected that P will reside with his parents and they will now consider him as part of any application for housing. However the final paragraph of that statement indicates that the RBG has failed to grasp what it is that this family needs in order to succeed in their reunification because it ends by pointing out that the most likely outcome of the application for housing will be the provision of “temporary accommodation” and that this may include accommodation outside of the Borough.

And there, I’m afraid, the Court fails to grasp what housing under Part VI and Part VII Housing Act 1996 means these days. Yes, a homeless application will mean temporary accommodation and quite possibly out of borough – though the child care provisions and orders would be a strong argument against the suitability of out of borough accommodation. It appears that RBG thought that falling back on the legal minimum it would be required to provide would also help to stymie the Children Act responsibilities that RBG Children Services were clearly keen to avoid.

The Judgment went on to add

I will also expect that this Judgment is read and with that in mind would remind everyone that when considering outcomes for children we are enjoined to look to the services which are available for each realistic outcome. In this case I am not looking for any services out of the ordinary; I am looking for this family to be housed. These parents are vulnerable. This child is being prevented from returning to his family because they have nowhere to live. That cannot be right. It cannot be right to suggest that they are not in priority need or that they will not be so until they attend at the housing office with P. This child cannot live with his parents unless or until they are in settled accommodation. I have now fixed RBG with the duties imposed upon them pursuant to an interim supervision order. I expect them to attend the next hearing with a timetable and a solution to this problem.

With respect, the Family Court simply does not understand the disjunction between Childrens Services and Housing departments, one that the House of Lords (as was) grappled with often enough, but to no great success. Nonetheless, it appears that pressure from the Court, including a fresh demand that RBG’s housing director appear before it at the next hearing, had an effect. In a postscript to the Judgment we find:

At the first listed hearing after the one at which I gave the Judgment transcribed above, RBG attended, asserting that they had found accommodation for the family which could be taken up by 15th December. A transition plan drafted by LBR was drafted on the basis that they would take up residence by Monday 15th. It transpired that this was not a tenancy or even an offer of tenancy but rather a referral or nomination to be considered for a tenancy by a local housing association. It also became clear to me upon hearing from the senior housing officer who attended on the day that juggling the housing resources of this London authority meant that this family was only ever going to be top of the list when they were recognised as an emergency and it had taken my order that he attend a hearing for them to be so recognised. That is not an acceptable way of working by public authorities in my view. It was known to RBG that the situation was as I have described it as long ago as September. I suggest that RBG ensures that it has systems which enable it to respond more appropriately to such emergencies.

Happily, at the second hearing on 16th December, the tenancy was confirmed as signed. The transitional arrangements had to be redrafted. I hope and expect that the parents will be assisted to take up their housing.

But it is, of course, not right that RBG’s allocation policy would accept the parents’ position as being ‘an emergency’ that would give them high priority under Part VI for allocation. This case may have been resolved, but it is a marker of the disjunction between family and housing law and of the lack of understanding of housing law and Council’s housing obligations by the family courts. These situations are going to become more common. If RBG hadn’t taken such a stupidly obstinate and wrong position in the first place, attracting the Court’s ire, it is doubtful that there would have been such a relatively speedy resolution. The ‘emergency’ was that the Director of Housing was going to have to face an unhappy judge. (And of course, a nomination to a housing association tenancy is a perfectly fine way of doing things under Part VI allocations, to be fair to RBG, even if the judge didn’t grasp that).

As mentioned above, this is likely to be an increasing issue for family courts. The lesson, for all concerned, is have a housing lawyer handy. Also, do remember to demand the attendance of the head of the council’s housing department at a hearing. It works wonders.

[Update. It turns out that the parents did indeed get assistance from housing solicitors, Philcox Grey, soon after the hearing and before the tenancy position was resolved. ]

When should an article 8 defence be raised? And are there different kinds of social landlords, such that the analysis of Article 8 defences in Pinnock and Powell might not be applicable to all? These were questions in Lawal & Anor v Circle 33 Housing Trust [2014] EWCA Civ 1514.

In what the Court of Appeal described as ‘an exceptional course of litigation’, there were also at stake issues about the ability to stay an eviction longer than 6 weeks after an outright possession order in Notice to Quit based proceedings and whether the occupier should put forward details of what would be required to avoid an art 8 breach in raising an art 8 defence.

The history is more than a little complicated. This appeal was actually of a refusal to set aside a possession order and/or stay a warrant. There had been a previous application for permission to appeal the possession order. However, this present appeal was the first in which the appellants were represented. As we will see, this gave rise to difficulties on orders made on the previous appeal.

Mr Lawal had been the tenant of Circle 33 (via its predecessor) since 1974. The tenancy was a secure tenancy from 1985.Mr and Mrs Laval raised 6 children in the property, but after 1981 Mr Lawal spent much of his tie in Nigeria. Mrs Lawal died in 2002. Between 2002 and 2010, his daughter Jaicee spent much time at the property while living elsewhere, then lived at the property from 2010. Mr Lawal returned to the property in 2011. However, in May 2011, Circle 33 served a notice to quit. “Although Mr. Lawal was occupying the Property at the time of the notice to quit, Circle 33 considered that he was not occupying it as his “only or principal home” for the purposes of sections 79(1) and 81 of the 1985 Act, and that he had therefore lost his status as a secure tenant.”

Circle 33 sought possession on various grounds, but the significant one was based on the notice to quit. Mr L and Janice defended in person. At first instance trial:

On the issue whether Mr. Lawal had been occupying the Property as his “only or principal home” within the meaning of section 81 of the 1985 Act, Judge May had regard particularly to the following matters: (1) Mr. Lawal’s evidence that he went “home” to Nigeria to seek work in 1981 after his father’s death and from then until 2002 was living and pursuing work opportunities in Nigeria, making brief visits back to see his family; (2) the statement in a letter dated 10 January 2003, apparently bearing Mr Lawal’s signature, recording that he had been living up to then in Nigeria; (3) Mr Lawal’s evidence that, after his wife’s death, he had “increased” the amount of time he spent in Nigeria; (4) the fact that in the 70 months before the expiry of the notice to quit Mr. Lawal had spent just seven months in the UK, for no more than one and a half months at a time; and (5) Mr. Lawal’s daughters had assumed responsibility for the Property for eight years prior to the notice to quit conducting themselves as the tenants, paying rent and applying to exercise a “right to buy” in their names. Judge May also found that Mr Lawal intended to return promptly to Nigeria after July 2011 but he then stayed in London only because the possession proceedings had been issued.

Taking into account those matters and all the other evidence, Judge May concluded that the Property was not Mr Lawal’s only or principal home in July 2011 and had not been for some considerable time before that. Mr Lawal had, therefore, ceased to satisfy the tenant condition in sections 79 and 81 of the 1985 Act and, accordingly, he had lost his status as a secure tenant. It followed that Circle 33 had validly terminated the tenancy by serving the notice to quit and was entitled to possession.
In Jaicee’s oral closing submissions for herself and her father, the appellants had for the first time advanced a defence under Article 8 of the Convention but Judge May did not make any reference to that defence in her judgment.

At the end of the trial on 25 July 2013 Judge May ordered possession of the Property on or before 5 September 2013.

Mr L sought permission to appeal the possession order to the Court of Appeal, at least in part on the basis that Judge May had failed to consider the Article 8 defence raised or Mr L’s circumstances. At renewed oral permission hearing on 12 November 2013, Arden LJ dismissed the application, but added:

“16. I am bound to say that there must be a correlation between any right to respect for home and the judge’s finding that the home at Ashbrook House was not a principal home. In favour of Article 8 is, of course, the point that Mr. Lawal has lived in the property for some 39 years and is now 76; in other words, a long-time connection with the property. But as against that, of course, it has to be said that the judge had found it was not his principal home and that is a point on which I cannot give permission to appeal.
17. However it is, in my judgment, a point that Mr. Lawal was entitled to have considered by the Court and if it was not considered by the Court on making the possession order it would, it seems to me, have been the judge’s intention that it should have been dealt with before a warrant for possession was issued.
18. It appears a warrant for possession has been issued. I have had a brief look at the Rules while in court and … it seems to me … that the person in actual occupation of [the Property] should have received notice of proceedings to get a warrant for possession. …[I]t seems to me that there must be the possibility that there was some procedure then or now capable of being used in the county court for the purpose of having that claim adjudicated upon. …
19. If there is a procedural requirement, as I believe there was, in the Shoreditch County Court, then as I see it that requirement will be very closely connected with the notice of appeal which is before the court and it may be a matter which can be brought within it. What I propose to do is to grant a stay for 14 days to allow Mr. and Ms. Lawal to investigate whether or not there is a procedure within the Shoreditch County Court for them to raise the Article 8 point by way of asking for the warrant for possession to be rescinded or varied, or for further time to be given. Only if that procedure is not available would there be any question of any further consideration by this court which would have to be by way of letter to the court.”

The resulting order stated “(1) the application for permission to appeal and a stay of execution was refused, and (2) a stay was granted for 14 days to enable the appellants to ascertain from the County Court whether they could apply in respect of their Article 8 claim and, if not, to file a further notice of appeal in respect of that refusal or (if so advised) to seek to reopen the appeal.”

Mr L then applied to Shoreditch County Court to set aside the possession order and/or stay the warrant. Before the hearing, Mr L obtained representation. That application was dismissed by Judge Mitchell in March 2014. He held:

i) the application under CPR 3.7(1) was dismissed because there had been neither a material change in circumstances since that order was made nor any misstatement or omission in the material placed before Judge May.
ii) he felt bound by Arden LJ’s observation on the application for permission to appeal Judge May’s order that Judge May had probably intended that the Article 8 issue could be raised at the enforcement stage.
iii) On the proportionality of eviction, Circle 33 was under a charitable duty to provide housing to those in need and it was likely to make the properties available to those owed the main housing duty by a local authority. The property was under-occupied and of a much needed size. Jaicee’s ill -health was not of a nature to qualify her for priority need for housing. Mr L on the other hand, was in poor health and in receipt of attendance allowance. It was arguable that he was entitled to have Jaicee with him as a full time carer. However, Mr L had not established that he would be homeless if evicted. In addition, he had only spent 10 of the 70 months prior to the NTQ in the property.
iv) Section 89 Housing Act 1980 had effect. The Court was bound by the Supreme Court in LB Hounslow v Powell [2011] UKSC 8 to the effect that section 89(1) could not read down under section 3(1) of the Human Rights Act 1998 (“the HRA 1998″) so as to provide a longer period of postponement than six weeks in a case where that would otherwise be required to give effect to the Article 8 right of an occupier. 6 weeks had expired since the possession order.
v) “assuming that it is for [Circle 33] to prove that possession would not be disproportionate, [Mr. Lawal and Jaicee] can reasonably be expected to indicate which, if any, of these two alternatives [granting an extended period for possession or suspending the order for possession on the happening of an event] would be proportionate and to provide some detail, for example, of the length of the period or terms of the suspension” and neither Mr L or Jaicee had provided the required level of detail, Mr L having simply stated he should be provided with suitable accommodation or stay at the property indefinitely.

Mr L and Ms L sought permission to appeal this order, and were also represented on this appeal. The grounds of appeal were:

(1) Judge Mitchell misdirected himself in finding that it was not possible for the county court to prevent or suspend execution of a warrant for possession on the grounds that execution would be a breach of the appellants’ rights to respect for their home under Article 8.
(2) In so far as Judge Mitchell proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights his approach was flawed in that he:
(a) failed to take into account that Circle 33 was a housing trust (not a local housing authority) and adapt the approach taken by the Supreme Court in Manchester City Council v Pinnock accordingly;
(b) put the onus on the appellants to establish how long it would be proportionate to allow them to remain in the Property and on what terms. The correct question was whether evicting them immediately was proportionate as at the date of the hearing.
(3) In so far as the Judge proceeded on the alternative basis that he had jurisdiction to consider such Article 8 rights, his approach was flawed in that he took into account the following irrelevant considerations: (i) the fact that the possible location of any alternative accommodation Mr Lawal might accept and the statutory basis and terms of any occupation agreement were unknown; and (ii) the terms on which the Mr Lawal would remain in the Property if allowed to do so by the court were unknown and he might continue to occupy the Property on the same terms as previously.

There was also an application under CPR 52.17 to reopen the original appeal from Judge May’s possession order.

On the CPR 52.15 application, the Court set out the principles to be applied.

CPR 52.17(1) sets out the essential pre-requisites for invoking the jurisdiction to re-open an appeal or a refusal of permission to appeal. More generally, it is to be interpreted and applied in accordance with the principles laid down in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528. Accordingly, […], the jurisdiction under CPR 52.17 can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined. […] The broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation. Fourth, it also follows that the fact that a wrong result was reached earlier, or that there is fresh evidence, or that the amounts in issue are very large, or that the point in issue is very important to one or more of the parties or is of general importance is not of itself sufficient to displace the fundamental public importance of the need for finality.

In this case, there was force in the appellant’s submissions that their art 8 argument should have been considered before the making of the possession order. Moreover, on the permission hearing:

Arden LJ was in a difficult position. She was not shown any transcript of the proceedings before Judge May. The appellants were representing themselves before her. No one appeared for Circle 33. She decided to take the pragmatic course of suggesting to the appellants that they explore the possibility of raising the Article 8 point at the stage of enforcement of the possession order if that were possible. What she did not appreciate was that section 89(1) of the 1980 Act deprived the county court of any jurisdiction to stay or suspend the possession order because more than six weeks had passed since the possession order was made. It is now common ground between the parties that there was no power under CPR 3.1(7) for a county court to set aside Judge May’s possession order. In those circumstances, but unknown to Arden LJ, the county court had no power to entertain the appellants’ Article 8 defence at the enforcement stage.

Arden LJ envisaged that, should that prove to be the case, the appellants would be able to return to the Court of Appeal to re-open the application for permission to appeal. She made no reference, however, to the exceptional and restricted circumstances for invoking CPR 52.17. It seems highly likely that, had she been conscious of the difficulties of re-opening the application for permission to appeal pursuant to CPR 52.17 and that the county court had no power to entertain the appellants’ Article 8 defence at the enforcement stage, she would have granted permission to appeal on the Article 8 point.

However, this was not enough to pass the CPR 52.17 threshold, as the appellant’s case amounted to no more than a criticism of Arden LJ’s refusal to give permission. Moreover, Mitchell J had subsequently considered the merits of the article 8 defence, thus remedying the injustice that might have been contained in the first instance possession order and Arden LJ’s decision.

On the substance of the appeal, it was wrong to criticise Mitchell J for not drawing a distinction between Circle 33 and local authority landlords in applying Powell. In West Kent Housing Association Limited v Haycraft [2012] EWCA Civ 276 the Court of Appeal made no distinction between the position of the claimant housing association and a local authority in the application of the Pinnock and Powell principles. R(Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 held that housing management decisions by an RSL were public functions for the purpose of judicial review and

the Supreme Court stated expressly in Pinnock (at para. [3]) that its judgment applied equally to other social landlords to the extent that they are public authorities under the HRA 1998. That point was also made clear in paragraph [54] of its judgment. In Powell Lord Hope, with whom the other Justices agreed, stated (at [35]) that both local authorities and other social landlords hold their housing stock for the benefit of the whole community, and that great weight must be given to their decisions as to how that stock should best be administered, decisions which the court is not equipped to make.

Further, Mitchell J was right “in applying the analysis in Pinnock and Powell that, in the case of possession proceedings by a local authority, (1) the evidential burden lies in the first instance on the defendant to satisfy the court that an order for evicting the defendant is not a proportionate means of achieving a legitimate aim, and (2) the threshold raising an arguable case on proportionality is a high one.”

So “While I have no doubt that it would be helpful and best practice for a social landlord such as Circle 33 to provide brief details of the matters on which Mr Luba submitted evidence should have been adduced in the present case relating to Circle 33’s housing functions and policies, I do not accept that Judge Mitchell was wrong in the present case to follow the statements in Pinnock and Powell that the same principles as to Article 8 proportionality apply to both local authorities and other social landlords”. The under occupation of the property was a relevant factor. So, the Judge was entitled to find that an order for possession of the Property and the eviction of the appellants were for a legitimate aim and a proportionate means of achieving it.

It followed that, if Judge May had considered the article 8 defence at trial and before a possession order, she would have dismissed that defence.

The appeal and the application were dismissed. The Court also went on to make observations on the timing of Art 8 defences:

As was made clear in the judgment of Briggs LJ in R (JL) v Secretary of State for Defence [2013] EWCA Civ 449, with which the other members of the Court of Appeal agreed, save in exceptional circumstances an Article 8 defence ought to be raised during the possession proceedings and in particular at the trial. To raise an Article 8 argument at the enforcement stage, when it could and should have been raised earlier, will almost always be an abuse of process. In the present case, there were exceptional circumstances, namely that (1) an Article 8 argument was in fact advanced by the appellants in their closing submissions at the trial but Judge May either declined to hear it or peremptorily dismissed it but in either case she gave no reasons for doing so in her formal judgment, and (2) Arden LJ, on the application for permission to appeal, took the view that rather than granting permission to appeal it would be better for the appellants, then acting in person, to pursue their Article 8 point at the enforcement stage. With hindsight, and with the benefit that Arden LJ did not have of legal argument and the transcript of what took place before Judge May, there is a compelling case that it would have been better if permission to appeal had been granted.

It is also worth noting the fate of an argument by Circle 33, “that in light of the reasoning of the European Court of Human Rights (“the ECrtHR”) in JL v The United Kingdom (30.9.2014) (Application No. 66387/10) there is no scope at all for the application of Article 8 in the present case. The argument is that, by stipulating the tenant condition in section 81 of the 1985 Act, Parliament has already struck the Article 8 balancing exercise that requires respect for an occupier’s home and there is no basis for the court to make separate enquiries into Article 8 issues if the court finds that the occupier has failed to satisfy that condition”.

The trouble for that argument was that the paragraph of JL that Circle 33 relied upon actually said the opposite, that it was precisely notwithstanding that the right of occupation had come to an end that the court should be able to consider art 8 issues. So, unsurprisingly, that argument was rejected and the court of appeal took time in the judgment to do so, presumably to stop it ever being raised again.

Comment

This was frankly a mess of a case, not helped by Arden LJ’s permission (non)decision. But even the apparent unfairness to litigants in person in finding that they should have sought to reopen that appeal, rather than pursue the (hopeless) route of a set aside/stay of warrant application in the County Court, was rejected on the basis that once the appellants had legal advice, they could have abandoned the application and sought to re-open the appeal.

Circle 33’s arguments on the appeal largely came to nothing as well. Their consistent attempts to argue abuse of process in the appellants’ seeking to reopen the art 8 defence were rejected as simply wrong, given Arden LJ’s findings. And then there was the hopeless argument based on JL.

But what is clear from the judgment is that:

i) An article 8 defence must be raised at or before trial, if at all possible. If not, it cannot be raised at warrant/enforcement stage, without there having exceptional circumstances to justify it not having been raised before.

ii) There is no reason to differentiate between local authority and RSL (PRP) landlords, either in the applicability of article 8, or in the presumption of legitimate aim as per Powell, (at least unless some clear, strong basis can be advanced for that differentiation, and even then, the point is uncertain).

iii) That said, it would be good practice for RSLs to put forward some evidence as to why the presumption of legitimate aim should apply in their case.

iv) S.89 Housing Act 1980 remains as an ‘all or nothing’ issue for Art 8 defences – in effect, no possession order or 6 weeks maximum suspension as alternatives. I rather suspect that permission will be sought to go to the Supreme Court on the issue of the compatibility of s.89 on this case. We shall see.

v) The evidential burden remains on the Defendants to show why eviction would be disproportionate, though it would not, it seems, require the Defendants to show how long they should remain in the property and on what terms for an order to be proportionate.

Anti-social behaviour cases are one of the staple cases for the young barrister. If acting for landlords (whether local authority or housing association), they’re a great way to develop trial experience in a relatively low-risk environment. I say “low risk” because, for the most part, landlords have got quite good at these cases and courts have become quite cynical, such that you usually get an order of some sort.

For tenants, if your experience is anything like mine, you start off fighting the good fight and happily running the defence your client wants to run (often some highly elaborate version of bare denial) and (generally) you go down in flames. Your client isn’t believed. The landlord has produced a plethora of witnesses (some anonymous, which always troubles me) and the judge has seen it all before. Defending ASB cases rapidly makes you realise that, in some cases, your client is best served by making admissions and pressing for a suspended/postponed order.

Now, I don’t for a second suggest that we should be going back to a pre-Bristol CC v Mousah (1998) 30 HLR 32 view, when often quite terrible behaviour did not result in an outright order. But there are a few instances where I do rather fear that the law has gone too far pro-landlord, or, perhaps, is too harsh on certain categories of defendant. For example, I do struggle with the idea that a tenant should be responsible for the acts of their (adult?) children or visitors. I don’t see why we should fix one adult with responsibility for the acts or omissions of another. In particular, that sort of situation seems to arise disproportionately frequently against single parent female tenants (I can’t find it at the moment, but Prof Hunter and Prof Lister have both written very powerfully on this gender impact). Given the enormous range of remedies open to social landlords which can be used to target the actual cause of the behaviour (i.e. the children), far too many reach for the simple option of pursuing the tenancy-holder.

Now, whether or not that is the underlying factual background of Tuitt v Greenwhich LBC [2014] EWCA Civ 1669 (not online, Santa – dressed as Chief – delivered us a transcript), I can’t say. But it is an example of the concern I outlined above.

Ms Tuitt was the secure tenant of Greenwhich in a flat which she occupied with her 18-year old son and her partner. The tenancy agreement had the usual clauses prohibiting her or her family from engaging in ASB in the area, harassing council staff, etc. It appears that her son was causing some anti-social behaviour and, in 2010, he signed an Acceptable Behaviour Agreement. Plainly, that didn’t work as, by 2012, her son was involved in an incident (for which he was later convicted) where planks of wood were thrown off a building onto the caretaker. Possession proceedings were issued. Before trial, the son was convicted of further criminal offences. The DJ made an outright possession order. She was particularly struck by the seriousness of the allegations, the failure of Ms Tuitt to appreciate how serious they were and her failure to take steps to ameliorate the situation, e.g. by asking her son to leave.

On appeal, Ms Tuitt tried to focus on her lack of personal culpability, relying on Sedley LJ in Portsmouth City Council v Bryant [2000] 32 HLR 906

It may very well be unreasonable to make even a suspended order against somebody who will be powerless to rectify the situation and it will almost certainly be unreasonable to make an outright order against such a person. There are, after all, other legal expedients, not least under the Prevention from Harassment Act 1997, by which those guilty of anti‑social conduct can be directly punished or restrained

But, as the Court of Appeal pointed out, that had to be seen in context. In Bryant itself, Simon Brown LH had said that the case-law clearly showed that “… no personal fault on the tenant’s part is required to bring a case within ground 2…”. Further, Knowsley Housing Trust v McMullen [2006] HLR 43 had expressly rejected the idea that “…an order for possession, whether outright or suspended, could or even should not have been made as a matter of principle simply because the tenant could not control the activities of the person in her household responsible for the nuisance”. The trial judge had carefully considered the relevant law and facts and her decision could not be faulted.

The second ground of appeal got very short shrift. It was said that the behaviour of the son had improved and the judge should have recognised that. The judge had taken a different view of the evidence and it was one she was plainly entitled to reach. The third was even shorter. Contrary to the argument for the appellant, there had been many incidents over a long period of time, as the judge had correctly found.

Appeal dismissed.

This was a judicial review of LB Enfield’s plans for borough wide additional HMO licensing and selective licensing of all PRS properties. It did not go well for Enfield, who appear to have not quite grasped the consultation requirements.

Regas, R (On the Application Of) v London Borough of Enfield [2014] EWHC 4173 (Admin)

Mr Regas is a landlord with a single property in Enfield. He acted partly in person and partly with two different legal teams. Enfield’s proposed scheme was passed by the Council on 9 April 2014 and confirmed by the Scrutiny Committee on 30 April 2014.

After a lengthy permission stage, involving a trip to the Court of Appeal and a further decision by Enfield on the additional scheme, what remained where the following grounds of challenge.

1. The consultation process conducted pursuant to section 56(3) (additional licensing) and section 80(9) (selective licensing) 2004 Act was inadequate and unlawful in that certain people likely to be affected by the schemes were not consulted as required by statute. In particular that no attempt was made to consult those people living, working or otherwise affected in neighbouring boroughs who were likely to be affected
2. Enfield failed to consult for the period of time required by the Secretary of State in his General Approval 2010 as a condition of his approval for the additional and selective licensing schemes with the result, it is said, that neither scheme has the approval of the Secretary of State as required by the 2004 Act

Enfield’s consultation was as follows:

Between 15 November and 16 December 2013, a “listening and engagement” exercise was undertaken on Enfield’s behalf by a market research company, Opinion Research Services (“ORS”) during which meetings were held with local residents, landlords and agents to consider whether there was evidence of antisocial behaviour among private sector tenants and whether the introduction of licensing would in principle, be beneficial in resolving such issues.

Then, between 2 January and 28 February 2014 there was a formal consultation exercise on the formulated licensing proposals. According to Enfield’s evidence, the consultation, which included some six events (3 for landlords and agents, 3 for tenants and stakeholders) and a telephone survey, was publicised:

by a number of means including on Enfield’s website. […] I confirm that the website publicity inviting representations were available for the public view from 15 November 2013 until mid March 2014. In addition, Enfield Council carried out a market and communications campaign that included:

The distribution of a borough wide leaflet to 140,000 residents and businesses in Enfield from 13 January 2014 until the end of the consultation
Posters were displayed in Council buildings, libraries and GP surgeries in the borough from 20 January 2014.
Adverts were placed in the Enfield Independent, the Londra Gazete and Parikiaki newspaper, the latter two which are widely circulated in London.
Distribution of 3,000 leaflets to landlords from 27 January 2014.
Large street posters board by JCDecaux were used throughout the borough from 28 January to 10 February 2014.
Emails and letters were sent to landlords and agents some of which were operating businesses outside the borough from 1 February 2014.
Between 20 January and 3 February 2014 various messages were publicised to Enfield Council staff using internal channels of communication.
A Press release was circulated to recipients listed on pages 22-26 of SM1 on 31 December 2013.
Some online news websites such as “this is Local London” “Landlord Today” ran features about the consultation on their websites. Screen shots of those are at pages 27-28 of SM1.
The consultation invited representations from anyone interested in the proposal, and was not limited to residents of Enfield. A number of letting agents conducting business in areas other than Enfield were invited to take part in the consultation process in addition to other organisations whose clientele extend beyond Enfield’s borders. I exhibit at pages 20.9-22.1 of SM1 a list of all the organisations invited to the consultation forums and the mode of invitation, sign-in sheets from the public meetings showing attendance by representatives of organisations such as the Citizen’s Advice Bureau and a list of those who confirmed attendance at the public forums held on 11 and 12 February 2014.
Representations were received from two national organisations representing
landlords. [NLA and RLA]

On ground 1 the Court endorsed the Supreme Court’s confirmation of the ‘Sedley criteria’ in R (Moseley) v Haringey London Borough Council [2014] UKSC 56:

First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third,… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.

In this case, section 56(3) [additional licensing] and 80(9) [selective licensing] of Housing Act 2004 both contained a requirement to:

take reasonable steps to consult persons who are likely to be affected by the designation;

In this case, the Court found that people who lived or operated in areas of other boroughs adjoining Enfield would clearly be affected. Enfield had made no targeted attempt to obtain consultation responses outside of Enfield – leaving it to chance if such people were to see a reference in media beyond the borough. Enfield’s proposals were for borough-wide schemes, and there were clear reasons for considering that there may be effects on adjoining areas.

I have reached the conclusion in the present case that the class of persons likely to be affected by the designation plainly included those residents, businesses, landlords and agents who live or operate in immediately adjoining parts of other local authority areas. To my mind it is plain that these groups were likely to be affected and should have been consulted and no thought was given, as it should have been, to the likely impact on those outside the borough who would be affected but were not protected by the proposals. After all, as is plain from Enfield’s own documentation to which I have referred, the rationale for deciding to impose both additional and selective licensing schemes across the whole of Enfield was at least in part to prevent bad landlords and indeed tenants simply moving to an unlicensed area within Enfield. That concern applies with equal force to the adjoining parts of the neighbouring boroughs. There is no justification as it seems to me for Enfield to treat people in the immediate vicinity but who happen to be located outside the borough differently from those within the borough yet they have not been consulted in any meaningful way and accordingly I conclude that the statutory precondition contained in section 56(3) 2004 Act has not been met.

Further, the Secretary of State’s own Guidance makes specific reference to the need for consultation to extend to local residents and those who operate businesses or provide services in the surrounding area outside the proposed designation but who will be affected by the designation.

Accordingly, the 9 April 2014 decision was not based on adequate consultation.

On ground 2, the Secretary of State’s ‘General Approval’ of licensing schemes, issued in 2010, states

The general approval described in paragraphs 2 and 3 is not given in relation to a designation in respect of which the local housing authority has not consulted persons who are likely to be affected by it under section 56(3) or section 80(9) (a) of the Act for not less than ten weeks.

Enfield’s formal consultation took place between 2 January 2014 to 28 February 2014, about 8 weeks. Enfield sought to argue that the ‘listening and engagement exercise’ that ran between 15 November and 16 December 2013 formed part of the statutory consultation. But this did not find favour.

the statutory consultation requirement cannot be satisfied by a general engagement and listening exercise but requires a draft proposal which would require some precision in the identification of what is to be designated and its consequences so that the extent of the effect on the people can be appreciated. In addition, it is hard to see how adequate steps could be taken to consult with the persons affected unless they knew the likely licence conditions that would be imposed. That level of detail was conspicuously lacking in the first phase undertaken by Enfield and, in the circumstances, Enfield’s argument cannot prevail, falling foul as it does, of the second of the Sedley principles.

So, the consultation period was less than 10 weeks, and therefore the licensing schemes di not fall under the Secretary of State’s ‘general approval’.

The relief granted, despite Enfield’s pleas that it would cause substantial prejudice, and that significant steps had been taken to implement the scheme, was to quash the Council’s decision to adopt the schemes as unlawful, until such time as lawful consultation had been carried out and approval obtained for a lawful licensing scheme.

Comment

Though this claim was issued before R (Moseley) v Haringey in the Supreme Court, it is clear that Moseley sets the bar for future challenges to consultations, as in this case. While the 10 week requirement was in effect statutory, the extent of the consultation and who was consulted was addressed (and failed) under the ‘Sedley Principles’. Any local authority carrying out a consultation, whether statutory or not, would be wise to have those principles at the forefront of their minds.

Although there was much dispute during the consultation period about the nature and substance of Enfield’s evidence in support of the licensing schemes, this JR did not address that. It was successful on the formalities of consultation, rather than the considerations underlying the scheme. If Enfield re-consult, it may be that other issues will arise.

This is a housing case, but the procedural issue in this decision is only tangentially related to that. Nonetheless, it is a matter worth noting.

Cutler v Barnet LBC [2014] EWHC 4445 (QB) [Not on Bailii yet, we’ve seen a transcript].

Ms C had been Barnet’s secure tenant. Barnet served Notice to Quit on alleged non-occupation and began possession proceedings. The non-occupation was denied. We won’t go into the details, for reasons that will become clear.

The Court gave directions, including for disclosure.

On 31 October 2013, the matter came before Deputy District Judge Shaw.  He made an order which allocated the claim to multi track provided that the appellant should file any defence by 28 November and that each party should give disclosure by list by 4 pm on 9 January 2014.  The parties were to exchange statements of witness of fact by 4 o’clock on 20 February.  The appellant did not give disclosure, and on 20 February the respondent applied both for summary judgment and for an order striking out the defence for non‑compliance with directions given by Deputy District Judge Shaw.

In a depressingly familiar turn, Ms C had been represented, but the Legal Aid Certificate had been cancelled, and despite the efforts of her solicitors to re-instate legal aid, Ms C was not represented and did not attend the hearing of the application on 28 February 2014. An Unless order was made, debarring Ms C from defending if she had not given disclosure within 14 days. She was served with the order on 20 March, so was to comply by 3 April.

The Claimant/respondent argued that Ms C had not fully complied with the unless order. At a hearing on 8 May 2014, the Court agreed that the disclosure given did not comply with the order. During that hearing, Ms C’s counsel made an oral application for relief from sanction, citing also a paper application to vary the order of 31 October and witness statement in support that had been filed by Ms C’s solicitors in April 2014 and a further statement from Ms C’s solicitor dated 2 May 2014.

The Court decided that any application for relief from sanction had to be made formally (in writing) under CPR 23. There was therefore no application before the Court. Ms C’s defence was therefore stuck out.

Ms C appealed. The grounds were that the Judge had erred in:

(1) finding that he had no discretion to consider an oral application for relief from sanction;
(2) finding that there was no application for relief from sanction;
(3) finding that such an application had to be made formally in writing;
(4) thereby failing to consider his broad discretion in case management powers under CPR 3.1(2) and Rule 3.3(1);
(5) failing to consider the respondent’s failure to comply with the mandatory requirement under CPR 3.5.5; and
(6) failing to consider the appellant’s right to a fair trial under common law and Article 6 ECHR, in particular given that this case involves the loss of the appellant’s home.

The High Court put grounds 1-4 together and held:

24. In my judgment, the absence of a formal application under CPR 23 does not conclude the matter.  At the hearing before the judge, Mr Grigg [counsel for C] made an oral application for relief from sanctions which was supported by the statement of Mr Calendar, the appellant’s solicitor, dated 11 April 2014, in support of the application to amend the directions of Deputy District Judge Shaw made on 31 October 2013 and, in addition, there is the statement of Mr Calendar of 2 May 2014.

25. CPR 3.8 does not require the application to be made in writing, nor does CPR 3.9.  In my judgment, the learned judge had power under Rule 3.8 to determine the application that was made before him on the appellant’s behalf, as indeed he could have done if he considered it appropriate to do so on his own initiative.

26. The decisions made by the Court of Appeal in Keen Philips v Field and Marcan Shipping, to which I have referred in this regard, remain in my view good law.  That the court can of its own motion consider whether there should be such relief has been confirmed recently by the Court of Appeal in Circle Thirty Three Housing Trust Ltd v Nelson [2014] EWCA Civ 106 (see the judgment of Sir Robin Jacob at paragraph 18).

Given this, grounds 5 and 6 were dealt with quickly. Ground 5 was not a separate ground of appeal, but on ground 6:

28. […] Mr Grigg [for Ms C], in support of ground 6, referred me to the decision of the Court of Appeal in Folashade Rashida Momson v Dauda Abiodun Azeez [2009] EWCA civ 202, where the Court of Appeal considered the application of Article 6 to relief from sanctions.

29. In my judgment, applying the principles set out in Folashade, the learned judge should have balanced the Part 3.9 factors and considered proportionality and the overriding objective. This he failed to do. In my view, debarring the appellant from defending possession of her home purely on the basis that there had been no formal application issued under CPR 23, does amount to a breach of Article 6, ECHR.

The order of 8 May was set aside.

So, there is no requirement for an application for relief from sanction to be made formally under CPR 23 (though obviously this would be a good idea!).

And on a matter so significant as defending a possession claim for the defendant’s home, it would seem that a purely technical strike out may amount to a breach of Article 6, though the extent of this finding will no doubt be tested in other cases, as here it is only related to debarring a defence in the absence of a formal application for relief.

Here is an interesting First Tier Tribunal bedroom tax appeal decision from Bexleyheath. [Decision notice]. It is a decision made after the Fife Upper Tribunal decision, but upholds the tenant’s appeal on the basis, in part, that the room is inadequately sized to be a bedroom, as well as being just too damn hot. Thanks to Joe Halewood for the copy of the decision.

The given reasons for the decision seem to me to both entirely in accord with the Fife decision and, as findings of fact, virtually unappealable. As such, it may mark the way that the Fife UT decision will play out in the First Tier Tribunals, and gives an indication of the kind of factors that may come into play in whether a room can be reasonably considered to be a bedroom.

The property was a ‘three bedroom’ house. Two bedrooms occupied by the tenant and her adult son. The third room was, the tribunal found, of about 6.31 meters square, and was just about large enough to accommodate a single bed and a chest of drawers. But the ceiling sloped down to about chest height on one side of the room. The shape of the room also meant that a door to a cupboard housing an immersion heater opened directly in front of the door from the room to the landing, which reduced useable floor space. Moreover, the presence of the immersion heater tank in the room, as well as a boiler, meant that the room was always hot. Though the window could be opened, this did not adequately reduce the heat generated by the tank and the boiler. The heat meant that the room could not be slept in. The tenant’s evidence was that when her four children were all at home, the youngest would sometimes try to sleep in the room, but couldn’t because it was too hot.

The Tribunal accepted this evidence and followed SSWP v Nelson and Fife Council [2014] UKUT 0525 (AAC) in finding that “the room had various physical features and drawbacks which prevented it from being used as a bedroom”, so it should not be counted under Reg B13.

What this decision suggests, as raised in my report on the Fife UT decision, is that if specific factors are raised by the tenant as going against the landlord’s statement of the number of bedrooms, then the benefit authority will have to consider those factors and give reasons for their decision. If they do not, or if there is no contrary factual evidence, then the FTT may well accept the tenant’s evidence (assuming it is adequate). And a decision on such facts is frankly unappealable by the benefit authority or DWP. The UT has established the legal framework, factual decisions made within that framework are not realistically appealable.

If there are physical  reasons why a room is not useable as a bedroom, tenants should raise them with the benefit authority straight away. The benefit authority will have to deal with them, and cannot just rely on what the landlord told them if the tenant raises objections. As I predicted, the benefit authorities and DWP will not be happy with the effects of Fife UT decision.

A very brief note to point up the slightly less than earth shattering Housing (Tenancy Deposits) (Specified Interest Rate) (Revocation) (England) Order 2015. This comes into force on 4 February 2015 in England only and revokes the equally fascinating Housing (Tenancy Deposits) (Specified Interest Rate) Order 2007.

The 2007 Order set the interest rate offered by the custodial tenancy deposit protection scheme run by the DPS at 2.32% below the base rate of the Bank of England. The base rate has been below that figure for quite some time and shows little prospect of creeping above it any time soon so the Order is nugatory. In addition the Housing Act 2004 was quietly altered some time ago to make the payment of interest on tenant’s deposits by the custodial scheme optional.

In fact the 2007 Order constrained something of an error as it has essentially specified a negative interest rate which should really require the DPS to take money from tenant’s deposits. Probably a good thing it is being revoked!

No, not a post about the time-management skills of barristers, rather, some research that Z2K are putting together. As they say:

Concern is mounting about councils, especially in London, delaying completion of homelessness reviews until right at the end of the 8 week maximum time limit or exceeding that limit and any agreed extensions to it. If this is an issue that has arisen in your work, the advice-giving charity Z2K would like to hear from you. It is pulling together a dossier of experiences from HLPA members and others to submit to the Ombudsman and to press for remedial action.

 

If you’ve got any case-studies on this, please email them to RominSutherland@z2k.org

A friend of ours has asked us to help promote a potential documentary. What follows is a slightly edited version of the original email:

Kash is a Hackney based production company that specialises in all forms of digital and short form content. We’ve been established for five years now and are eager to make interesting, relevant films that tell personal and honest stories.

I’m currently doing the preliminary research into a documentary idea about the affordability of housing in London and, in particular, cases where people have been offered financial assistance to leave their borough, moving to other London boroughs or even out of London entirely.

They’re looking to produce a short documentary for the Open City Docs festival, the theme of which is “Living in London.”

If anyone reading this is interested in speaking to Kash about this or has clients who might be interested, can they please contact Jamie McCormack at jamie@kash.london or on 020 7923 3309.

The case of Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC) is a bit off the housing law beaten track and as a result I have only recently got round to reading it properly. It concerned s.1, Defective Premises Act 1974, which is the statutory provision that enables any person with an interest in a dwelling to sue the person responsible for building the dwelling, or carrying out any work in connection with the dwelling, where the dwelling is not fit for human habitation when the work is completed.

The main issue in Rendlesham was whether the common parts of an apartment block could be construed as part of a person’s dwelling. In answer to that question it was held that a dwelling for the purposes of s.1, in this particular case, were the individual apartments together, possibly, with their balcony. However, the work done to the structural and common parts was work done in connection with the provision of each of the apartments and so was caught by s.1. As a result, some of the apartment owners were able to sue the developers for damages for distress and inconvenience arising from damp and mould growth caused by the defects to the structure where it was found that the apartments were unfit for human habitation.

It is, however, interesting for another reason. When considering the level of damages to award the apartment owners for the damp and the mould Edwards-Stuart J said this:

“[304]… In the recent decision of the Court of Appeal in West v Ian Finlay & Associates [2014] BLR 324 , the court said that awards of this type should be modest and subject to a maximum of about £3,000 per annum (at current prices). That case involved the failure of damp proofing work and whilst the remedial work was carried out the claimants lived in a nearby rented house. The court considered that £2,000 per annum would have been an appropriate rate for Mrs. West and £1,500 per annum an appropriate rate for Mr. West. The stress and anxiety suffered by Mrs. West was described by the court as “undoubtedly significant”, but not at the top of the scale.”

It was at this point – 304 paragraphs into the judgment -that my interest was piqued. What did the court mean by “awards of this type”? Was this cap just to apply to s.1, DPA74 cases or more widely? In particular I was thinking about its application to disrepair claims under s.11, Landlord and Tenant Act 1985. Was there an important Court of Appeal authority that us housing lawyers had missed?

As a result I had a look at the West case. That was another case where the issue was defective workmanship in a dwelling that had resulted in a damp problem. The cause of action was contractual, however, rather than under s.1, DPA 1974. In West, the Court of Appeal relied on an earlier decision of the TCC (AXA Insurance UK Plc v Cunningham Lindsay UK [2007] EWHC 3023 (TCC)) as authority for the proposition that the maximum award of general damages for distress and inconvenience arising under a contract was £3,000. No other authority was cited.

I was also not familiar with AXA Insurance either so I read that as well. That case concerned a claim for damages arising from subsidence in a residential property. In assessing the level of damages for distress and inconvenience Aikenhead J was referred to three cases: Watts v Morrow [1991] 1 WLR 1421 (which was a disrepair claim), Ezekiel v McDade [1994] 43 Con LR 45  and Hoadley v Edwards [2001] PNLR 4 (which were both professional negligence claims against surveyors). The proposition that as a general rule only £3,000 per annum could be recovered was distilled from the awards made in those three cases rather than from a particular point of principle. Nor does it appear that Aikenhead J was referred to either Wallace v Manchester CC (1998) 30 HLR 1111, English Churches Housing Group v Shine [2004] HLR 42 or Earle v Charalambous [2007] HLR 8. In all of those three cases  the Court of Appeal had no difficulty with a tenant being awarded general damages that exceeded £3,000 per annum.

Accordingly, while West is a decision of the Court of Appeal and purports to apply to the award of general damages in any contractual claim, I don’t think lawyers acting for tenants in disrepair claims need to be overly worried. It is very hard to reconcile with the three Court of Appeal disrepair cases and shouldn’t be difficult to distinguish in the event it is a case that landlords seek to rely on. It is a case, however, to be aware of in the event that it starts cropping up in settlement negotiations.